Brian Gladden v. Department of Defense ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRIAN G. GLADDEN, DOCKET NUMBER
Appellant, DC-0752-18-0553-I-1
v.
DEPARTMENT OF DEFENSE, DATE: June 12, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Charity C. Emeronye Swift , Esquire, and Stephen Christopher Swift ,
Esquire, Alexandria, Virginia, for the appellant.
John B. Reese , Bethesda, Maryland, 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.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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
supplement the analysis regarding the appellant’s discrimination claims, we
AFFIRM the initial decision.
BACKGROUND
The appellant was employed by the agency as a GS-5 Medical Support
Assistant at the Walter Reed National Military Medical Center. Initial Appeal
File (IAF), Tab 4 at 89. His primary duty was to serve as a clerk at the front desk
at the Hospital Dentistry Clinic. Id. at 24. Shortly after the appellant began to
work at the front desk, the agency also appointed another front desk clerk who
regularly worked with the appellant. Id. Almost immediately, the two had a
strained working relationship, and the agency issued them identical letters of
counseling regarding their “disruptive tension” in the workplace. Id. at 59-60,
65-66.
Several months later, the other front desk clerk and, to a far lesser extent,
other coworkers, made allegations of sexual harassment against the appellant, and
the agency conducted an investigation. IAF, Tab 4 at 23-60. Following the
investigation, the agency proposed the appellant’s removal on one charge of
inappropriate conduct (three specifications) and one charge of “Violation of the
Health Insurance Portability and Accountability Act (HIPAA) Privacy and
Security Regulations” (four specifications). Id. at 67-70. Following the
3
appellant’s written and oral responses, id. at 71-78, the deciding official issued a
final decision, sustaining only the inappropriate conduct charge and removing the
appellant from Federal service, id. at 84-85.
The appellant filed the instant appeal with the Board challenging his
removal and asserting that it was the result of discrimination. IAF, Tabs 1, 20.
Following a hearing, IAF, Tab 25, Hearing Compact Disc (HCD), the
administrative judge issued an initial decision sustaining two of the three
specifications of the inappropriate conduct charge and finding that the appellant
failed to prove his affirmative defense of discrimination, IAF, Tab 29,
Initial Decision (ID) at 8-10. She also found a nexus between the sustained
charge and the efficiency of the service and that the penalty of removal was
reasonable. ID at 10-13. The appellant has filed a petition for review of the
initial decision, and the agency has responded. 2 Petition for Review (PFR) File,
Tabs 3, 5. The appellant has also filed a reply to the agency’s response.
PFR File, Tab 6.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved the charge of inappropriate conduct by preponderant evidence.
A charge of inappropriate conduct has no specific elements of proof; it is
established by proving that the appellant committed the acts alleged in support of
the broad label. See Alvarado v. Department of the Air Force , 103 M.S.P.R. 1,
¶ 22 (2006) (considering the charge of “improper conduct”); Otero v. U.S. Postal
Service, 73 M.S.P.R. 198, 202 (1997) (stating that an agency need not affix any
label to its charges and can instead describe actions that constitute misbehavior in
narrative form and have its discipline sustained if the efficiency of the service
suffers because of the misconduct). Specification A of the charge alleged that on
August 23, 2016, the appellant was working at the front desk and made crude
2
There is a question as to the timeliness of the petition for review, Petition for Review
(PFR) File, Tabs 5-6, that we need not, and do not, resolve, given our disposition of the
petition for review on the merits. See, e.g., Alcantara v. Office of Personnel
Management, 88 M.S.P.R. 61, ¶ 3 n.* (2001).
4
comments that were sexual in nature to fellow coworkers. IAF, Tab 4 at 67.
Specifically, it alleged that the appellant stated, while on duty and in front of two
coworkers, “I think I will go back here and jerk off.” Id. During the hearing, a
Specialist and the other front desk clerk testified that the appellant made the
comment referencing masturbation and that it made them uncomfortable.
HCD (testimony of the Specialist and front desk clerk). The appellant testified to
the contrary, stating that he did not make the comment or any other similarly
inappropriate comment. HCD (testimony of the appellant).
When, as here, there is conflicting testimony concerning the appellant’s
conduct, and it is impossible to believe the testimony of witnesses on both sides,
an administrative judge must make credibility determinations to properly resolve
the case. Vicente v. Department of the Army, 87 M.S.P.R. 80, ¶ 7 (2000). In the
initial decision, the administrative judge assessed the credibility of the Specialist,
the other front desk clerk, and the appellant pursuant to the factors set forth in
Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). ID at 8.
In doing so, she relied on their demeanors and the degree of consistency with
other evidence in the record, such as statements made during the agency
investigation into the appellant’s conduct. ID at 8. She concluded that the
Specialist and the other front desk clerk were more credible witnesses than the
appellant and sustained the specification. Id.On review, the appellant generally argues that the specification contains no
specificity, such as the circumstances surrounding the alleged comment or the
nature of the comment. PFR File, Tab 3 at 5-6. He also asserts that the other
front desk clerk was biased because the two of them did not get along and that her
testimony is therefore not credible. Id. at 6, 12-13. He further alleges that the
Specialist’s and the front desk clerk’s testimony was contradictory because they
could not agree about whether the alleged comment was made in reference to a
jerked chicken lunch. Id.5
The appellant’s arguments do not provide a basis to disturb the initial
decision. The two witnesses’ testimony provided the degree of specificity that
the appellant alleges the agency failed to show; they testified regarding the nature
and circumstances surrounding the alleged comment, providing the date of the
incident and the time of day, and explaining the expressions on the appellant’s
face and general demeanor when he made the comment. HCD (testimony of the
Specialist and front desk clerk). Further, although there was a poor workplace
history between the other front desk clerk and the appellant, the Board cannot
discount testimony based solely on the potential bias of a witness. Redschlag v.
Department of the Army, 89 M.S.P.R. 589, ¶ 12 (2001). Furthermore, although
the appellant is correct that the other front desk clerk and the Specialist’s
testimony conflicted regarding whether the comment was made in reference to the
jerked chicken lunch, the administrative judge acknowledged this discrepancy,
but nevertheless found the Specialist, in particular, to be a credible witness
because she testified in a “straightforward” and “clear” manner. ID at 8. Given
this demeanor-based finding, we defer to the administrative judge’s credibility
determination. See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed.
Cir. 2002) (observing that the Board generally must give deference to an
administrative judge’s credibility determinations when they are based, explicitly
or implicitly, on the observation of the demeanor of witnesses testifying at a
hearing). Accordingly, we decline to disturb the administrative judge’s finding
that the other front desk clerk and Specialist were more credible witnesses than
the appellant. The appellant’s attempts on review to have the Board reweigh this
evidence are unpersuasive. PFR File, Tab 3 at 5-7; see Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions on issues of
credibility); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same).
6
Specification C 3 of the charge alleges that, on August 8, 2016,
while speaking to a coworker about the television show “Law and Order,” the
appellant stated to the Specialist that “pedophiles get off on [a] baby’s natural
sucking reflex.” IAF, Tab 4 at 67. At the hearing, the Specialist testified
regarding the incident, stating that the appellant made that statement to her and
that she had to ask him several times to stop talking about it before he quit.
HCD (testimony of the Specialist). The appellant acknowledged that he made the
comment, but claimed that it was “academic in nature” and stopped talking about
it when the Specialist asked him to. HCD (testimony of the appellant); PFR File,
Tab 3 at 10-11. The administrative judge credited the Specialist’s testimony, in
part because it was consistent with her prior statements during the investigation,
and she sustained the specification. ID at 9.
On review, the appellant argues that the agency viewed the comment in the
wrong context and that it was not harassment 4 because he was discussing the
“punishment for pedophiles.” PFR File, Tab 3 at 10-11. These arguments are
unconvincing. The Specialist testified that she knew “where [the appellant] was
going” with his comments and that they made her uncomfortable, particularly
because she had two children. HCD (testimony of the Specialist).
The administrative judge credited the Specialist’s testimony, emphasizing that she
provided it “in an earnest manner.” ID at 9. The appellant’s arguments on
review are not sufficient to disturb this demeanor-based credibility finding.
Haebe, 288 F.3d at 1301 (stating that the Board may overturn demeanor-based
credibility determinations only when it has “sufficiently sound” reasons to do so);
3
Although the appellant included in his petition for review arguments that addressed
Specification B, PFR File, Tab 3 at 7-9, the administrative judge did not sustain that
specification, ID at 8-9, and the agency has not challenged that determination in its
response to the appellant’s petition for review, PFR File, Tab 5. As such, it is not
necessary to consider the appellant’s arguments regarding that specification.
4
To the extent the appellant characterizes the agency’s charge as one of sexual
harassment in his petition for review, PFR File, Tab 3 at 10, he is mistaken.
The agency charged him with inappropriate conduct. IAF, Tab 4 at 67.
7
see Faucher v. Department of the Air Force, 96 M.S.P.R. 203, ¶ 8 (2004)
(stating that “sufficiently sound” reasons for overturning an administrative
judge’s demeanor-based credibility determinations include circumstances when
the administrative judge’s findings are incomplete, inconsistent with the weight
of evidence, and do not reflect the record as a whole).
Based on the foregoing, we agree with the administrative judge’s decision
to sustain the charge, and we will not disturb it.
The appellant failed to prove his affirmative defenses of Title VII and age
discrimination.
The appellant asserted as an affirmative defense that his removal was the
result of race, color, sex, religion, national origin, and age discrimination.
IAF, Tab 20. An appellant alleging discrimination must prove that such
discrimination was at least a motivating factor in the agency’s employment
decision. Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 21.
Here, the administrative judge considered the appellant’s assertion that his
age, race, color, sex, religion, and national origin played a “major role” in the
way he was perceived. ID at 10. She found, however, that he failed to submit
any evidence supporting his claim, either in response to the affirmative defenses
order, in his prehearing submission, or at the hearing. Id. She also concluded
that the record did not contain any evidence that the responsible management
officials were motivated by discriminatory factors. Id.On review, the appellant reasserts his discrimination claim and appears to
argue that he was discriminated against because his “accusers” were of a different
age, sex, race, and national origin. PFR File, Tab 3 at 4, 13. Although this
statement may be true, it does not prove that the appellant’s age, sex, race, and
national origin were motivating factors in his removal. Further, the deciding
official specifically testified that he did not consider the appellant’s age, race,
sex, national origin, or religious faith when he effected the removal action.
HCD (testimony of the deciding official). The administrative judge did not
8
discuss this testimony or make an explicit credibility finding on this point,
ID at 10, but the appellant bears the burden of proof on his affirmative defense,
see 5 C.F.R. § 1201.56(b)(2)(i)(C). We find that the appellant has not proven by
preponderant evidence that any of the prohibited categories discussed above were
motivating factors in his removal, and we discern no basis to disturb in the initial
decision in this regard. Because we affirm the administrative judge’s finding that
the appellant failed to show that any prohibited consideration was a motivating
factor in the agency’s action, we need not resolve the issue of whether the
appellant proved that discrimination was a “but-for” cause of the agency’s
decisions. See Pridgen, 2022 MSPB 31, ¶¶ 20-22, 29-33.
The penalty of removal is reasonable. 5
When, as here, the Board sustains the agency’s charges, but not all of the
specifications of those charges, it will review the agency-imposed penalty to
determine whether it is within the parameters of reasonableness.
Dunn v. Department of the Air Force, 96 M.S.P.R. 166, ¶ 10 (2004), aff’d, 139 F.
App’x 280 (Fed. Cir. 2005). The Board’s function is not to displace
management’s responsibility or to decide what penalty it would impose, but to
assure that management’s judgment has been properly exercised and that the
penalty selected by the agency does not exceed the maximum limits of
reasonableness. Stuhlmacher v. U.S. Postal Service, 89 M.S.P.R. 272, ¶ 20
(2001); Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). Thus,
the Board will modify a penalty only when it finds that the agency failed to weigh
the relevant factors or that the penalty the agency imposed clearly exceeds the
bounds of reasonableness. Stuhlmacher, 89 M.S.P.R. 272, ¶ 20.
Here, the deciding official completed a Douglas factor worksheet and
reiterated his conclusions at the hearing. IAF, Tab 4 at 79-83; HCD (testimony of
5
As noted, the administrative judge found that the appellant’s misconduct had a nexus
to the efficiency of the service. ID at 10-11. The appellant has not challenged that
finding on review, and we discern no reason to disturb it.
9
the deciding official). He testified that removal was reasonable considering the
nature of the appellant’s workplace and the importance of maintaining integrity in
that environment. HCD (testimony of the deciding official). He further testified
that he consulted the agency’s table of penalties and that removal was consistent
with the suggested penalty for inappropriate behavior that was sexual in nature.
Id. He also testified that he considered that the appellant exhibited a pattern of
inappropriate conduct without signs of improvement and concluded that he lacked
the potential for rehabilitation. IAF, Tab 4 at 82. He considered the appellant’s
past disciplinary history, noting that he had a record of inappropriate conduct,
id. at 80, as well as mitigating factors, such as the appellant’s performance and
strained work relationship with the other front desk clerk, but concluded that they
were overshadowed by the negative climate created by his offenses, id. at 81-82.
In the initial decision, the administrative judge found that the deciding official
properly weighed the relevant Douglas factors in affirming the removal, and she
credited his testimony based on his demeanor and its consistency with the written
record. ID at 12.
On review, the appellant argues that both the administrative judge and the
deciding official erred in sustaining the penalty of removal. PFR File, Tab 3
at 11-13. He argues that the administrative judge improperly considered the
second charge that was included in the proposal action but not sustained by the
deciding official in finding that the penalty of removal was reasonable. Id. at 3.
Although the administrative judge discussed the second charge that was not
sustained by the deciding official in the background section of the initial
decision, there is no indication that she considered the charge in her assessment
of the reasonableness of the penalty of removal. ID at 11-13.
Additionally, the appellant generally argues that the deciding official’s
penalty analysis was not sufficient for a variety of reasons, including that he
failed to explain why the table of penalties on which the he relied was relevant
and why he did not find the appellant dependable, or how the misconduct
10
rendered him unable to perform his job. PFR File, Tab 3 at 11-13. He also
contends that the deciding official’s finding that he lacked the potential for
rehabilitation was “incendiary, demeaning, and humiliating” because it likened
him to “a criminal in prison, whose issue was about rehabilitation from his past
crime.” Id. at 11.
The appellant’s arguments are unconvincing. Whether an employee has the
potential for rehabilitation and whether the proposed penalty is consistent with
the agency’s table of penalties are both relevant factors for a deciding official to
consider when determining the appropriate penalty. Douglas, 5 M.S.P.R. at 305.
Here, the table of penalties indicates that the similar charge of conduct
unbecoming a Federal employee, which also has a broad label but is accompanied
by a narrative detailing alleged misconduct, see Canada v. Department of
Homeland Security, 113 M.S.P.R. 509, ¶ 9 (2010), warrants a penalty in the range
of a 5-day suspension to a removal after the first offense. IAF, Tab 4 at 115.
Thus, we see no error in the deciding official’s reliance on the table of penalties
to determine the appropriate penalty. Further, the deciding official testified at
length why he believed the appellant was no longer dependable or able to perform
his duties, focusing on the environment created by the misconduct and the
agency’s mission of dealing with veterans. HCD (testimony of the deciding
official); IAF, Tab 4 at 80. After our review of the hearing testimony and the
written Douglas factor analysis, we find that that the deciding official weighed
the relevant factors, including mitigating factors, before concluding that removal
was the appropriate penalty. IAF, Tab 4 at 79-83; HCD (testimony of the
deciding official).
Because the deciding official properly considered Douglas factors, we only
review the penalty to determine whether it is reasonable. See Stuhlmacher,
89 M.S.P.R. 272, ¶ 20. We agree with the administrative judge that it is. In
assessing whether the agency’s selected penalty is within the tolerable limits of
reasonableness, the most important factor is the nature and seriousness of the
11
misconduct and its relation to the employee’s duties, position, and
responsibilities. Martin v. Department of Transportation, 103 M.S.P.R. 153, ¶ 13
(2006), aff’d, 224 Fed. App’x 974 (Fed. Cir. 2007). The Board has found that
conduct similar to the appellant’s is serious and may warrant removal. See, e.g.,
Social Security Administration v. Carr, 78 M.S.P.R. 313, 325-27, 341, 343 (1998)
(finding that good cause existed for removal of an administrative law judge when
she engaged in persistent use of vulgar and profane language, sexual harassment,
and ridicule, and made demeaning comments, even if they were intended as jokes,
when aggravating factors were present such as a prior reprimand, a relatively
brief Federal tenure of less than 4 years, difficulty with interpersonal
relationships in the office, and lack of potential for rehabilitation), aff’d, 185 F.3d
1318 (Fed. Cir. 1999); Wilson v. Department of Justice, 68 M.S.P.R. 303, 310-11
(1995) (concluding that disrespectful conduct manifested by the use of abusive,
language is unacceptable and not conducive to a stable working atmosphere and is
grounds for removal). Further, the appellant’s duties and responsibilities require
him to deal with the public, specifically with veterans, is a relevant factor and
may be considered aggravating. See Douglas, 5 M.S.P.R. at 305-06.
In addition to these factors and the previously discussed table of penalties,
the record also reflects that the appellant had prior discipline, which the deciding
official considered. IAF, Tab 4 at 80. The record contains two letters of
counseling and a letter of reprimand, which concern performance issues and the
appellant’s ability to get along with coworkers. 6 Id. at 61-66. The record further
indicates that the appellant had been appointed to his position with the agency in
April of 2016, giving him less than 2 years of service. IAF, Tab 4 at 28.
Based on the foregoing, we find removal to be within the bounds of
reasonableness. The appellant’s mere disagreement with the weight the deciding
6
Although two of these letters were issued after the appellant engaged in the charged
misconduct, and, therefore, generally could not be considered as prior discipline,
see Cantu v. Department of the Treasury, 88 M.S.P.R. 253, ¶ 6 (2001), they nonetheless
are relevant to the appellant’s potential for rehabilitation.
12
official afforded to each Douglas factor provides no basis to disturb the initial
decision. See Kirkland v. Department of Homeland Security , 119 M.S.P.R. 74,
¶ 25 (2013) (explaining that the issue in determining whether the Board should
exercise its mitigation authority is not whether the Douglas factors could have
been weighed differently but whether the agency considered the relevant Douglas
factors and reasonably exercised management discretion in making its penalty
determination).
The appellant has not presented any new and material evidence that warrants a
reversal of the initial decision.
On review, the appellant seeks to resubmit three documents with his
petition for review, which include: (1) the final decision of removal; (2) an email
regarding Specification B of the charge of inappropriate conduct; and
(3) a summary document of the internal investigation into the appellant’s
misconduct. PFR File, Tab 3 at 15-27. However, all three of these documents are
included in the record below in the agency file, and, therefore, are not new. IAF,
Tab 4 at 23-33, 55, 84-85; see Meier v. Department of the Interior, 3 M.S.P.R.
247, 256 (1980) (concluding that evidence that was in the record below and was
considered by the administrative judge is not new simply because a party believes
that the evidence was not properly weighed or considered by the administrative
judge). Moreover, the appellant has not explained how any of these documents
would have a material impact on, or would change the outcome of, his appeal.
Accordingly, we find that the additional documents provide no basis for granting
review. See 5 C.F.R. § 1201.115(d) (providing that the Board will grant a
petition for review based on new and material evidence).
We have considered all of the appellant’s arguments on review but have
concluded that a different outcome is not warranted. Accordingly, we DENY the
appellant’s petition for review and AFFIRM the initial decision.
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NOTICE OF APPEAL RIGHTS 7
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.
(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:
7
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.
14
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
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
15
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:
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
16
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. 8 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
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.
8
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.
17
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.