Patricia V Soucie v. Department of Health and Human Services ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICIA V. SOUCIE, DOCKET NUMBER
Appellant, PH-0752-19-0262-I-1
v.
DEPARTMENT OF HEALTH AND DATE: July 10, 2024
HUMAN SERVICES,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Patricia V. Soucie , Gardiner, Maine, pro se.
Jill L. Steinberg , Boston, Massachusetts, for the agency.
Rachel H. Park , New York, New York, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her removal appeal as untimely filed without good cause shown. For
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the reasons discussed below, we GRANT the appellant’s petition for review,
REVERSE the initial decision, and REMAND the case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant was a Dental Assistant with the National Disaster Medical
System of the Department of Health and Human Services. Initial Appeal File
(IAF), Tab 8 at 46. On March 5, 2018, the agency proposed to remove the
appellant based on her inability to perform the essential duties of her position due
to her diabetes. Id. at 35-38. The appellant subsequently contacted the Equal
Employment Opportunity (EEO) office of the agency, and on June 25, 2018, she
filed a formal complaint of discrimination against the agency. IAF, Tab 1 at 16.
On July 18, 2018, the agency issued its decision upholding her removal. IAF,
Tab 8 at 27-30. In different sections, the decision letter noted that it would
become effective on August 2 and August 18, 2018. 2 Id. at 28-29. The decision
letter further informed her that she could (1) appeal her removal to the Board,
(2) file a formal complaint of discrimination through the administrative EEO
process, or (3) seek corrective action with the Office of Special Counsel. Id.
at 29-30. The decision letter did not inform her of her rights or deadlines to file
matters in mixed case complaints.
After receiving the letter of decision on her removal, the appellant amended
her EEO complaint to include the letter. Id. at 18. On July 27, 2018, the
agency’s EEO office dismissed her claim because the agency’s removal action
had not yet been effected, and thus was a “proposal to take an action” that had not
yet “materialize[d].” Id. at 18-19. This dismissal similarly did not inform the
appellant of her mixed case rights or how to file an appeal with the Board.
The appellant filed an appeal with the Board on May 10, 2019. IAF, Tab 1
at 1-7, Tab 3 at 2. The administrative judge ordered the appellant to file evidence
2
The appellant’s removal was ultimately effected on August 18, 2018. IAF, Tab 8
at 46.
3
and argument showing that her appeal was timely or that good cause existed for
the delay. IAF, Tab 3 at 2-3. In response, the appellant claimed that she did not
learn that she was fully removed from the agency’s “team roster” until early
January 2019. IAF, Tab 7 at 4. She stated she had been “actively seeking help”
from the agency’s EEO office “with no avail.” Id. She further claimed that when
she contacted the office of her Senator, as well as other agency personnel, on
unspecified dates, they suggested she contact the Board. IAF, Tab 1 at 7, Tab 7
at 4.
On June 22, 2019, the administrative judge issued an initial decision
dismissing the appellant’s removal appeal as untimely filed. IAF, Tab 11, Initial
Decision (ID) at 1-5. The administrative judge found that the appellant’s appeal
was untimely by approximately 8 months. ID at 2. She further found that the
appellant’s explanation that she was seeking help from the EEO office, and that
she did not learn she was off the team roster until January 2019, was insufficient
to demonstrate the due diligence and ordinary prudence requisite to establish
good cause for an untimely filing. ID at 3-4.
The appellant filed a petition for review, and the agency has responded.
Petition for Review (PFR) File, Tabs 1-2.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s Board appeal was untimely.
If an appellant files a timely mixed case complaint with her agency, a
Board appeal must be filed within 30 days after the appellant received the agency
resolution or final decision on the discrimination issue. 5 C.F.R. § 1201.154(b)
(1). A mixed case complaint is a complaint of employment discrimination filed
with a Federal agency relating to or stemming from an action that can be appealed
to the Board. Moore v. Department of Justice, 112 M.S.P.R. 382, ¶ 4 n.4 (2009);
29 C.F.R. § 1614.302(a)(1). The appellant’s case was a mixed case because, at
the time the agency issued the dismissal letter, she had been issued a letter of
4
decision on her removal that was appealable to the Board. IAF, Tab 8 at 27,
30-32. The agency’s EEO office issued its dismissal letter regarding her mixed
case complaint on July 27, 2018. Id. at 18-21. The dismissal letter was delivered
to the appellant’s address on August 4, 2018. Id. at 22. Thus, the deadline to file
her Board appeal was 30 days later, or September 4, 2018. 3 Accordingly, her
Board appeal on May 14, 2019, was untimely by approximately 8 months.
The appellant has shown good cause for the untimely filing of her initial appeal.
The Board will dismiss an untimely appeal unless the appellant establishes
good cause for the delayed filing. Kirkland v. Department of Homeland Security,
119 M.S.P.R. 74, ¶ 5 (2013). In order to establish good cause for the untimely
filing of an appeal, a party must show that she exercised due diligence or ordinary
prudence under the particular circumstances of the case. Id. Generally, an
agency’s failure to notify an employee of her Board appeal rights when such
notification is required constitutes good cause for late filing. Id., ¶ 6. When an
appellant files a mixed case complaint with an agency’s EEO office, the agency
must advise the appellant of her right to appeal the matter to the Board following
either a final agency decision or 120 days after the date of filing if no decision is
issued. 29 C.F.R. § 1614.302(d)(1), (3). Here, neither the removal decision letter
nor the dismissal letter mentioned the appellant’s mixed case rights to pursue the
matter before the Board following a final agency decision from the agency’s EEO
office, as set forth in 5 C.F.R. § 1201.154(b)(1) and required by 29 C.F.R.
§ 1614.302(d)(1). IAF, Tab 8 at 18-21, 27-31. Although the appellant provided
other correspondence she received from the agency’s EEO office, that
correspondence likewise failed to explain her right to appeal to the Board. IAF,
Tab 1 at 15-16, Tab 7 at 27-31. Accordingly, we find that the agency provided
the appellant inadequate notice of her Board appeal rights.
3
The 30-day deadline here actually falls on September 3, 2018. However, because that
date was a Federal holiday, the filing period will include the first workday after that
date. 5 C.F.R. § 1201.23.
5
When an agency provides inadequate notice of Board appeal rights, the
appellant is not required to show that she exercised due diligence in attempting to
discover her appeal rights but rather must show diligence in filing the appeal after
learning that she could. Kirkland, 119 M.S.P.R. 74, ¶ 6. We find that she has.
According to the appellant, she did not learn until January 2019 that she was
formally off the agency’s roster. IAF, Tab 7 at 4.
The appellant’s Senator’s office and other agency personnel suggested she
contact the Board. IAF, Tab 1 at 5, 7, Tab 7 at 4. As described by the appellant,
the guidance she received was, at most, a suggested course of action, and thus did
not trigger the requirement that she exercise due diligence in filing her Board
appeal. 4 IAF, Tab 1 at 7, Tab 7 at 36-38; see Mc Clendon v. Office of Personnel
Management, 92 M.S.P.R. 250, ¶¶ 12-13 (2002) (finding good cause for an
untimely filing when an agency failed to give adequate notice of Board appeal
rights, and the record did not reflect that the appellant was ever actually informed
of such rights). Given the inadequate notice and her pro se status, we find that
the appellant has shown good cause for the untimely filing of her initial appeal.
4
Although the appellant does not state when she received this guidance, it appears that
she first contacted her Senator in March 2019, less than 2 months before she filed the
instant appeal. IAF, Tab 1 at 5, Tab 7 at 36.
6
ORDER
For the reasons discussed above, we REMAND this case to the
Northeastern Regional Office for further adjudication in accordance with this
Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.