Ekta Srinivasa v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DR. EKTA SRINIVASA, DOCKET NUMBER
Appellant, PH-1221-21-0254-W-1
v.
DEPARTMENT OF VETERANS DATE: September 11, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Ekta Srinivasa , Brookline, Massachusetts, pro se.
Jonathan Smith , Bedford, Massachusetts, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication
of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal as untimely filed.
Generally, we grant petitions such as this one only in the following
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
By letter dated March 22, 2021, the Office of Special Counsel (OSC)
informed the appellant that it had closed its file regarding her allegations of
reprisal for whistleblowing activity and notified her of her right to seek corrective
action from the Board within 65 days of the date of the letter. Initial Appeal File
(IAF), Tab 1 at 9-10; see 5 U.S.C. § 1214(a)(3)(A); 5 C.F.R. § 1209.5(a)(1)
(stating that an IRA appeal must be filed no later than 65 days after the date that
OSC issues its close-out letter, or, if the letter is received more than 5 days after
its issuance, within 60 days of the date of receipt). The appellant filed the present
IRA appeal on June 8, 2021, 79 days after the date of the close-out letter. IAF,
Tab 1 at 1-6.
On review, the appellant does not challenge the administrative judge’s
finding that her IRA appeal was filed after the deadline. Petition for Review
(PFR) File, Tab 1 at 4-7; IAF, Tab 10, Initial Decision (ID) at 3. Rather, she
requests that the Board consider her appeal based on new and material evidence
and waive the time limit for good cause shown. PFR File, Tab 1 at 4-5. The
appellant argues for the first time that she became aware in April 2021 that “new
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and relevant information to [her] claim was in process through an investigation
initiated based on [her] harassment complaints.” Id. at 5. The appellant
maintains that the internal harassment investigation was completed in April 2021
but that she did not receive the summary until July 8, 2021. Id. at 5-6, 8. She
submits a copy of the memorandum regarding the harassment investigation, which
is dated June 16, 2021. Id. at 8. The appellant also argues that pursuing Equal
Employment Opportunity and harassment complaints at the same time as filing
her complaint with OSC, without legal representation, contributed to her inability
to follow the procedural requirements and deadlines for each complaint. Id. at 6.
The appellant acknowledges that she “did mix up the deadline to file” her IRA
appeal, but maintains that it was not deliberate and that her plan to file on time
was impacted by having to wait for the harassment investigation report. Id.Finally, she argues that the length of her filing delay was “only 13 days” and that
the delay should be “excused” because she was not negligent nor neglectful in
missing the deadline. Id. at 7.
Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence
submitted for the first time with a petition for review absent a showing that it was
unavailable before the close of the record below despite the party’s due diligence.
See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); Clay v.
Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (stating that the Board
generally will not consider a new argument raised for the first time on review
absent a showing that it is based on new and material evidence). The appellant
does not explain why she did not make these arguments below. PFR File, Tab 1
at 4-7; IAF, Tab 9 at 4. In any event, the appellant’s arguments and the
harassment investigation summary do not provide a basis for disturbing the
administrative judge’s findings that she failed to establish that her appeal was
timely filed or that her delay should be excused on the basis of equitable tolling.
ID at 3.
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All of the appellant’s arguments on review relate to her contention that she
has established good cause for her filing delay. PFR File, Tab 1 at 4-7. As set
forth in the initial decision, the statutory limit for filing an IRA appeal cannot be
waived for good cause shown. ID at 2; see Heimberger v. Department of
Commerce, 121 M.S.P.R. 10, ¶ 9 (2014). Even considering the appellant’s new
arguments on review, we find that she has not alleged any circumstances that
would warrant the application of equitable tolling to excuse her untimely filing.
See Wood v. Department of the Air Force, 54 M.S.P.R. 587, 593 (1992)
(explaining that the filing period may be suspended for equitable reasons, such as
when the complainant has been induced or tricked by her adversary’s misconduct
into allowing the deadline to pass or where she filed a defective pleading during
the statutory period) (citing Irwin v. Department of Veterans Affairs, 498 U.S. 89,
96 (1990)); 5 C.F.R. § 1209.5(b). Equitable tolling does not extend to mere
“excusable neglect.” Wood, 54 M.S.P.R. at 593 (quoting Irwin, 498 U.S. at 96).
The appellant has not demonstrated that extraordinary circumstances prevented
her from timely filing her initial appeal. PFR File, Tab 1 at 9, 12; see
Heimberger, 121 M.S.P.R. 10, ¶ 10.
Accordingly, we deny the petition for review and affirm the initial
decision.
NOTICE OF APPEAL RIGHTS 2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
2
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
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with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 3 The court of appeals must receive your petition for
3
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.