Alesya Paschal v. Department of Defense ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALESYA M. PASCHAL, DOCKET NUMBER
Appellant, AT-0752-16-0498-I-1
v.
DEPARTMENT OF DEFENSE, DATE: February 5, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Stuart A. Miller , Esquire, Atlanta, Georgia, for the appellant.
Daniel Dougherty , Colorado Springs, Colorado, for the agency.
Kathryn R. Shelton , Esquire, Redstone Arsenal, Alabama, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her 30-day suspension based on charges of discourtesy towards a
supervisory official, lack of candor (inaccurate statements), and discourtesy
towards a management official. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. Except as MODIFIED to
find that the agency did not prove its third charge, and with regard to the analysis
of the appellant’s claim of retaliation for equal employment opportunity (EEO)
activity, we AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was employed as a General Engineer. Initial Appeal File
(IAF), Tab 12 at 227. The agency proposed to suspend her for 30 days on the
basis of the following charges: (1) discourtesy towards a supervisory official;
(2) lack of candor (inaccurate statements); and (3) discourtesy towards a
management official. IAF, Tab 11 at 82-85. The appellant responded orally and
in writing to the proposal. Id. at 9-10, 14-19. The agency sustained the charges
and imposed the suspension. IAF, Tab 12 at 229-35. The appellant filed the
instant Board appeal, requested a hearing, and asserted affirmative defenses of
sex discrimination and retaliation for EEO activity. IAF, Tabs 1, 25. After
holding the appellant’s requested hearing, the administrative judge issued an
initial decision that sustained the charges, found that the appellant failed to prove
her affirmative defenses, and determined that a 30-day suspension was a
3
reasonable penalty for the sustained misconduct. Hearing Compact Disc (HCD);
IAF, Tab 32, Initial Decision (ID) at 2-17.
The appellant has filed a petition for review, challenging, among other
things, the administrative judge’s credibility determinations and analysis of her
affirmative defenses, and arguing that a 30-day suspension was not a reasonable
penalty. 2 Petition for Review (PFR) File, Tab 1. The agency has responded to
the petition for review, and the appellant has filed a reply to the agency’s
response. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
There is no basis to disturb the administrative judge’s findings sustaining the
agency’s first charge.
In charge 1, discourtesy towards a supervisory official, the agency alleged
that, during a meeting with her first- and second-line supervisors and other
agency officials, the appellant, among other things, “repeated the same questions
multiple times,” “did not demonstrate any willingness to listen” to the second -line
supervisor, “became visibly agitated,” asked questions in a “sarcastic” and
“condescending” manner, apologized in a “child-like, parroting tone,” and
became “more agitated, more rude, and condescending,” at which time the
second-level supervisor terminated the meeting. IAF, Tab 11 at 82-83. The
2
The appellant argues, for the first time on review, that the agency did not conduct its
investigation in conformance with its own procedures. She also argues that the
statements used against her and relied upon by the administrative judge were not sworn
statements. PFR File, Tab 1 at 20-21. To the extent that the appellant is raising a
harmful error defense for the first time on review, we decline to consider it. See Clay v.
Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (the Board generally will not
consider an argument raised for the first time in a petition for review absent a showing
that it is based on new and material evidence not previously available despite the
party’s due diligence). To the extent that the appellant is arguing that the
administrative judge should not have considered these unsworn statements in sustaining
the charges, the Board has held that unsworn statements are admissible in Board
proceedings. See Scott v. Department of Justice , 69 M.S.P.R. 211, 228 (1995) (holding
that the fact that an appellant’s statement is unsworn may detract from its probative
value, but it should be considered admissible evidence), aff’d, 99 F.3d 1160 (Fed. Cir.
1996) (Table).
4
administrative judge credited the agency witnesses’ account of this meeting over
the appellant’s. He made demeanor-based credibility determinations, noted that
the agency witnesses’ testimony was consistent with the written statement of the
Deputy Director (who was present during the meeting), and found that the Deputy
Director was unbiased because he was not in the appellant’s supervisory chain
and the appellant’s actions had not been directed towards him. ID at 4-6; IAF,
Tab 13 at 20-22; see Hillen v. Department of the Army, 35 M.S.P.R. 453, 458
(1987) (setting forth factors for an administrative judge to consider in assessing
witness credibility and deciding which version of competing testimony to credit).
The administrative judge therefore sustained the charge. ID at 4-6.
On petition for review, the appellant disputes the administrative judge’s
credibility determinations. PFR File, Tab 1 at 5. However, the Board must defer
to an administrative judge’s credibility determinations when they are based,
explicitly or implicitly, on observing the demeanor of witnesses testifying at a
hearing; the Board may overturn such determinations only when it has
“sufficiently sound” reasons for doing so. Haebe v. Department of Justice,
288 F.3d 1288, 1301 (Fed. Cir. 2002) . We have considered the appellant’s
arguments, but we find that they do not provide an adequate basis to disturb the
administrative judge’s explicitly demeanor-based credibility determinations. The
nature of the appellant’s comments and questions and her refusal to engage in an
appropriate discussion with the supervisory officials at the meeting constituted
conduct that was rude and offensive, and therefore discourteous. See Walker v.
Department of the Army, 102 M.S.P.R. 474, ¶¶ 4-7, 12-13 (2006) (finding that the
agency proved the charge of repeated acts of discourtesy to a supervisor because
the appellant was loud and rude during one telephone conversation and he was
extremely discourteous, loud, and continuously interrupting during a second
telephone conversation). For the reasons explained in the initial decision, we
agree that the agency proved charge 1. ID at 3-6.
5
There is no basis to disturb the administrative judge’s findings sustaining the
agency’s second charge.
In charge 2, lack of candor (inaccurate statements), the agency asserted that
after the meeting described in charge 1, the appellant sent an email to another
agency official in which she stated that her first-line supervisor filed a hostile
workplace complaint against her, and she forwarded that email to another agency
official, but the first-line supervisor had, in fact, not filed a hostile workplace
complaint against her. IAF, Tab 11 at 83. To prove a lack of candor charge, the
agency must prove that the employee gave incorrect or incomplete information
and that she did so knowingly. Fargnoli v. Department of Commerce,
123 M.S.P.R. 330, ¶ 17 (2016).
The administrative judge considered the testimony of the first-line
supervisor that he never filed a complaint of any kind against the appellant, and
there was no documentary evidence that he filed such a complaint. ID at 7. The
administrative judge found it more likely than not that the appellant knowingly
included incorrect information in the email because, among other things, she had
a deceptive state of mind following the meeting discussed in charge 1; he was not
persuaded by the appellant’s testimony that she meant something other than a
formal complaint or that she was innocently mistaken. ID at 7-9. The
administrative judge further found that the appellant submitted inaccurate
information, which she knew was incorrect or did so with reckless disregard for
the truth, and therefore, the agency proved the lack of candor charge. ID at 8-9.
On review, the appellant contends that the deciding official stated that she
had not lacked candor, the Commanding General’s advice to her regarding her
communication skills was “not intended to be disciplinary,” and there was a
meeting in March 2008 that her first-line supervisor attended, in which the
appellant’s allegedly “belligerent” and “harassing” behavior was discussed. PFR
File, Tab 1 at 7. We have considered the appellant’s arguments, but we are not
persuaded. For instance, the deciding official advised the appellant that, due to
6
her poor communication skills and imprecise language, an ordinary person would
read her email to say that the first-line supervisor “had filed a hostile work
environment” complaint against her, and he noted that a coworker, and not her
first-line supervisor, drafted the memorandum that described the meeting about
workplace violence. IAF, Tab 11 at 71. The deciding official acknowledged that
the Commanding General did not accuse the appellant of misrepresenting facts,
but rather, he “provided concrete examples of how [she] can improve
communication.” Id. Moreover, there is no evidence that the first-line
supervisor, aside from being present during a March 2008 meeting in which
concerns about a difficult work environment were expressed, made any complaint
against the appellant for any reason. The initial decision reflects the
administrative judge’s conscientious consideration of the evidence, and contains
appropriate inferences, and reasoned conclusions and credibility findings. We
therefore discern no basis to disturb these findings. Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 106 (1997).
The third charge is not sustained.
In charge 3, discourtesy towards a management official, the agency
asserted that during a meeting scheduled by the EEO Director to provide the
appellant with correspondence related to her EEO complaint, the appellant made
“unfounded accusations in a loud and in an agitated manner,” and became
“increasingly agitated” to the point where that the EEO Director had to conclude
the meeting. IAF, Tab 11 at 84. During the hearing, the EEO Director testified
consistent with the agency’s charge, explaining that the appellant repeatedly
accused her of doing nothing about her report that male employees brought nude
photos into the office, used a loud tone of voice, and became more agitated as the
meeting progressed. HCD (testimony of the EEO director). The administrative
judge credited the testimony of the EEO Director, finding that she was “calm,
7
deliberate, straightforward, and sincere” in her testimony. ID at 10. Therefore,
he sustained the agency’s third charge. 3 ID at 11.
The Board has noted that “[d]isrespectful conduct as manifested by the use
of abusive language is unacceptable and not conducive to a stable working
atmosphere.” Wilson v. Department of Justice, 68 M.S.P.R. 303, 310 (1995).
However, the Board also considers the context in which the conduct occurred to
determine whether such behavior constitutes misconduct, and to determine
whether the penalty imposed is reasonable. Daigle v. Department of Veterans
Affairs, 84 M.S.P.R. 625, ¶ 6 (1999); see, e.g., Larry v. Department of Justice,
76 M.S.P.R. 348, 358 (1997) (addressing comments made during psychotherapy);
Armstrong v. U.S. Postal Service, 28 M.S.P.R. 45, 47, 50 (1985) (addressing
comments made during a sexual harassment training session in which the
instructors encouraged comments and feedback); Farris v. U.S. Postal Service,
14 M.S.P.R. 568, 574 (1983) (explaining that employees generally may not be
discharged for rude and impertinent conduct in the course of presenting
grievances). For instance, in Daigle, 84 M.S.P.R. 625, ¶¶ 2, 6, the Board found
that a disrespectful conduct charge could not be sustained because, among other
things, the appellant’s use of abusive language about a manager occurred during
an EEO counseling session. The Board explained that, because EEO counseling
sessions are a semi-confidential means through which employees complain about
their working environment, and complainants are likely to be emotionally
distraught when reporting perceived discrimination, it is reasonable to afford
employees more leeway regarding their conduct in such a context than they might
otherwise be afforded in other employment situations. Id., ¶ 6.
3
The appellant testified that she never made accusations towards the EEO Director, and
that she remained calm and respectful throughout the meeting. HCD (testimony of the
appellant). We defer to the administrative judge’s demeanor-based credibility findings,
and credit the version of events recounted by the EEO Director. Purifoy v. Department
of Veterans Affairs, 838 F.3d 1367, 1372-73 (Fed. Cir. 2016).
8
While this meeting between the appellant and the EEO Director was not an
EEO counseling session, it was also not a random encounter that occurred outside
of the EEO process. It was a meeting that was initiated by the EEO Director, and
pertained, at least tangentially, to the appellant’s reports to the EEO office. IAF,
Tab 11 at 84; HCD (testimony of the EEO Director). Therefore, we believe that
the same leeway that the Board applied in Daigle should be applied here.
Additionally, the agency did not charge the appellant with behavior that was
particularly extraordinary or egregious. IAF, Tab 11 at 84. For instance, there is
no allegation that the appellant threatened the EEO Director, or engaged in
physically intimidating or abusive behavior. Id. Therefore, although we do not
condone disrespectful or disruptive behavior, as the Board noted in Daigle,
84 M.S.P.R. 625, ¶ 6, it is reasonable to expect that complainants such as the
appellant, who have alleged that they are the target of discrimination, harassment,
or retaliation, may be more emotionally distraught in the EEO context than they
would be in a different environment. Accordingly, given the circumstances, we
do not find that conduct described in the third charge constitutes actionable
misconduct. 4 See Gonzalez v. Department of Homeland Security, 114 M.S.P.R.
318, ¶ 10 (2010) (explaining that an agency charge that does not set forth
actionable conduct cannot be sustained).
The appellant did not prove her affirmative defenses of sex discrimination and
retaliation for prior EEO activity.
In the initial decision, the administrative judge determined that the
appellant did not prove her defenses of sex discrimination and retaliation for EEO
activity. He found that the appellant’s proffered comparators were not similarly
situated to her and concluded that she failed to prove that sex or EEO activity was
4
The agency’s third charge also raises a question regarding whether the agency charged
the appellant with misconduct for participating in the EEO process, which could violate
the participation clause of Title VII. However, the appellant has not raised this issue
as an affirmative defense. Therefore, because we do not sustain the third charge based
on other grounds, we decline to address the possibility of a violation of Title VII’s
participation clause.
9
a substantial or motivating factor in her suspension. ID at 14-17. On review, the
appellant challenges the administrative judge’s evaluation of the alleged
comparators related to her sex discrimination claim, and argues that her EEO
activity is the “only” explanation for the four disciplinary actions taken against
her and for her “crummy performance evaluations.” PFR File, Tab 1 at 18-22.
To prove an affirmative defense of sex discrimination or retaliation for
Title VII EEO activity, an appellant must show that the prohibited consideration
was at least a motivating factor in the action under appeal. Pridgen v. Office of
Management and Budget, 2022 MSPB, 31, ¶¶ 20-22. Regarding the appellant’s
sex discrimination claim, for the reasons explained in the initial decision, we
agree with the administrative judge that the appellant did not prove that sex was a
motivating factor in the agency’s decision to suspend her. ID at 13-15. Among
other things, the proffered comparators did not engage in misconduct similar to
the appellant’s. Id.Regarding the appellant’s retaliation claim, the administrative judge
appears to have applied a standard that was something of a hybrid between the
framework for assessing claims of retaliation under Title VII, and the framework
set forth in Warren v. Department of the Army, 804 F.2d 654, 658 (Fed. Cir.
1986), for assessing retaliation for non-whistleblower, non-EEO activity,
protected under 5 U.S.C. § 2302(b)(9)(A)(ii). ID at 15-16. Nevertheless,
applying the correct analytical framework as set forth in Pridgen, 2022 MSPB 31,
¶¶ 20-22, 30, we agree with the administrative judge’s ultimate conclusion that
the appellant did not prove that her EEO activity was a motivating factor in her
suspension. ID at 16. The appellant did not present sufficient evidence to raise
an inference of retaliation.
A 30-day suspension is a reasonable penalty for the sustained misconduct.
We agree with the administrative judge that the agency established nexus.
ID at 11. Therefore, we consider the reasonableness of the agency’s penalty in
light of the partially sustained charges.
10
When, as here, the Board does not sustain all of the charges, it will
carefully consider whether the sustained misconduct merits the penalty imposed
by the agency. Boo v. Department of Homeland Security, 122 M.S.P.R. 100, ¶ 17
(2014). The Board may mitigate the penalty imposed by the agency to the
maximum penalty that is reasonable in light of the sustained charges as long as
the agency has not indicated in either its final decision or in proceedings before
the Board that it desires that a lesser penalty be imposed for fewer charges. Id.Because not all charges have been sustained, and because the deciding official did
not express whether he would have imposed a lesser penalty without the third
charge, the Board must apply the Douglas factors to determine the maximum
reasonable penalty for the sustained charges of misconduct. Id.Considering the two sustained charges of misconduct, a 30-day suspension
is well within the bounds of reasonableness. It is well-established that the most
important factor in assessing the reasonableness of a penalty is the nature and
seriousness of the misconduct and its relation to the employee’s duties, position,
and responsibilities. Thomas v. Department of the Army, 2022 MSPB 35, ¶ 20.
Here, the appellant’s conduct was intentional and serious, as she continuously
disrupted a meeting with her first- and second-line supervisors, and then
immediately after doing so, sent an email mischaracterizing her supervisor’s
actions. IAF, Tab 11 at 82-83. Furthermore, the appellant has a prior
disciplinary record which establishes a history of behaving in a discourteous
manner, including a 2-day suspension for disrespectful behavior towards a
supervisor in 2010, a 5-day suspension for discourtesy towards a managerial
official in 2011, and a 12-day suspension for discourtesy towards a supervisory
official in 2012. 5 Id. at 84. The appellant’s prior disciplinary action also serves
5
The appellant asserts that the agency should not have considered a previous lack of
candor (inaccurate statements) charge in another proposed suspension, because, among
other things, the agency dismissed it. PFR File, Tab 1 at 4, 12-13. Although it is true
that the agency did not sustain the prior lack of candor (inaccurate statements) charge,
IAF, Tab 21 at 71, we find no error, because the deciding official only considered the
previous lack of candor charge as evidence that the appellant was on notice that such
11
as evidence that she was on notice that this type of discourteous behavior
constituted misconduct. 6 See Thomas, 2022 MSPB 35, ¶ 26 (finding that an
appellant’s prior discipline served as a general warning that his conduct was
inappropriate and constituted misconduct). Additionally, as the deciding official
testified, a 30-day suspension is consistent with the policy of progressive
discipline. HCD (testimony of the deciding official).
Finally, we have considered the fact that the decision letter did not identify
any mitigating factors, including that the appellant had received commendations
and initiated collaboration, she was recommended for a Senior Service
Fellowship, and she allegedly never had issues at work prior to reporting
inappropriate nude photographs in the workplace and allegedly being harassed by
her supervisor. IAF, Tab 12 at 232; PFR File, Tab 1 at 21. However, we find
that these mitigating factors do not outweigh the seriousness of the appellant’s
misconduct and her previous disciplinary history. 7 Accordingly, we find that the
30-day suspension is a reasonable penalty for the sustained misconduct. See, e.g.,
Guzman-Muelling v. Social Security Administration, 91 M.S.P.R. 601, ¶¶ 2, 16-17
(2002) (finding that a suspension of 30 days was within the parameters of
reasonableness for discourteous and disruptive conduct, absence without leave for
behavior was unacceptable and could be subject to discipline. HCD (testimony of the
deciding official).
6
The appellant also asserts that agency policy only allows for the use of prior discipline
that occurred within the previous 3 years. PFR File, Tab 1 at 11-15. The appellant does
not identify on review any policy prohibiting the agency from considering prior
suspensions that are more than 3 years old. Even if such a policy exists, we discern
nothing improper about the deciding official considering prior discipline under the
notice factor as discussed herein.
7
On review, the appellant reasserts her argument that the agency treated her more
harshly than three other individuals who had committed similar misconduct. PFR File,
Tab 1 at 15-17. However, for the reasons explained in the initial decision, we agree
with the administrative judge that the appellant’s proffered comparators were not
similarly situated to her for purposes of a consistency of the penalty analysis. ID
at 13-14. See Singh v. U.S. Postal Service, 2022 MSPB 15, ¶ 13 (holding that the
universe of potential comparators “should be limited to those employees whose
misconduct and/or other circumstances closely resemble those of the appellant”).
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1 hour, and providing poor public service, especially considering that the
appellant had been suspended previously for 3 days and 10 days, respectively, for
some of the same misconduct); Ally v. Department of the Navy, 58 M.S.P.R. 680,
682-83, 686-87 (1993) (upholding the appellant’s removal for disrespectful
conduct towards her supervisor for calling him an “ex-alcoholic” and “idiot”
when she had a prior suspension for similar misconduct). We have considered the
appellant’s remaining arguments on review, but a different outcome is
not warranted.
NOTICE OF APPEAL RIGHTS 8
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 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.
8
Since the issuance of the initial decision in this matter, the Board has 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.
13
(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
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
14
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
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:
15
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. 9 The court of appeals must receive your petition for
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
9
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.
16
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.