Gloria Green v. Office of Personnel Management

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GLORIA D. GREEN, DOCKET NUMBER
Appellant, AT-844E-22-0166-I-1
v.
OFFICE OF PERSONNEL DATE: June 26, 2023
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Gloria D. Green, Selma, Alabama, pro se.
Heather Dowie, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) denying her application for a disability retirement annuity under the
Federal Employees’ Retirement System (FERS). For the reasons discussed
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
below, we GRANT the appellant’s petition for review, REVERSE the initial
decision and OPM’s reconsideration decision, and ORDER OPM to award a
disability retirement annuity to the appellant.
BACKGROUND
¶2 The appellant worked for the U.S. Army Corps of Engineers (COE) from
August 7, 2017, until she resigned effective March 13, 2021. Initial Appeal File
(IAF), Tab 5 at 29, 42. At the time of her resignation, she was an Administrative
Support Assistant at COE’s Hydropower Branch in Mobile, Alabama. Id. at 42.
Her duties included providing clerical and administrative support in matters such
as timekeeping, purchasing/procurement, supply management, travel, personnel
management, and inventory control. Id. at 52. On March 4, 2021, she applied for
disability retirement under FERS based on major depression and anxiety. Id.
at 31, 35.
¶3 According to the appellant’s medical documentation, she has suffered from
anxiety since at least 2005. Id. at 107. In 2013, the Department of Veterans
Affairs determined that the appellant had a service-connected disability rating of
50% for major depressive disorder, effective September 2003. Id. at 72.
According to the appellant, her mental conditions negatively affect her
concentration and cause her to have paranoid thoughts and experience heart
palpitations, chest pain, and headaches, which resulted in a 17-day stay at a VA
psychiatric hospital in 2019. Id. at 17, 31. She further notes that her conditions
worsen when she is under increased stress, despite her continuous treatment and
taking medication. Id. at 31.
¶4 OPM issued a reconsideration decision, denying the appellant’s application
for a disability retirement annuity. Id. at 4-6. The appellant filed this appeal of
OPM’s reconsideration decision and requested a hearing. IAF, Tab 1. After the
appellant failed to submit prehearing submissions and attend the prehearing
conference, and failed to provide responsive information to an order to show
3
cause, the administrative judge cancelled the hearing and issued a close -of-record
order. IAF, Tabs 11, 14. Following the appellant’s response, the administrative
judge issued an initial decision that affirmed OPM’s decision. IAF, Tab 15,
Initial Decision (ID) at 2, 6. She reasoned that the appellant did not show that her
depression and anxiety were disabling conditions. ID at 4-6. She found that it
was undisputed that the appellant completed 18 months of civilian service under
FERS, suffered from depression and anxiety for many years and those conditions
were expected to continue throughout her lifetime, and that the agency was
unable to accommodate or reassign her. ID at 4.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. OPM has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 In an appeal from an OPM decision on a voluntary disability retirement
application, the appellant bears the burden of proof by preponderant evidence.
Thorne v. Office of Personnel Management, 105 M.S.P.R. 171, ¶ 5 (2007);
5 C.F.R. § 1201.56(b)(2)(ii). To be eligible for a disability retirement annuity
under FERS, an employee must show the following: (1) she completed at least
18 months of creditable civilian service; (2) while employed in a position subject
to FERS, she became disabled because of a medical condition, resulting in a
deficiency in performance, conduct, or attendance, or, if there is no such
deficiency, the disabling medical condition is incompatible with either useful and
efficient service or retention in the position; (3) the condition is expected to
continue for at least 1 year from the date that the application for disability
retirement benefits was filed; (4) accommodation of the disa bling medical
condition in the position held must be unreasonable; and (5) she did not decline a
reasonable offer of reassignment to a vacant position. 5 U.S.C. § 8451(a);
Thorne, 105 M.S.P.R. 171, ¶ 5; 5 C.F.R. § 844.103(a).
4
¶7 The administrative judge found, and the parties do not dispute on review,
that the appellant met the 18-month service requirement under FERS at the time
she filed her application, that her conditions were expected to continue for 1 year
from that date, that providing her an accommodation in her position was
unreasonable, and that she did not decline a reasonable offer of reassignment to a
vacant position. ID at 4; IAF, Tab 5 at 27-28, Tab 15 at 8-9. We decline to
disturb those findings. The administrative judge affirmed OPM’s denial of the
appellant’s disability retirement appeal on the basis that the appellant failed to
prove that she had a disabling medical condition. ID at 4-6; see Thorne,
105 M.S.P.R. 171, ¶ 5. We disagree.
¶8 There are two ways to meet the statutory requirement that the employee “be
unable, because of disease or injury, to render useful and efficie nt service in the
employee’s position.” Jackson v. Office of Personnel Management, 118 M.S.P.R.
6, ¶¶ 6-7 (2012) (quoting 5 U.S.C. §§ 8337(a), 8451(a)(1)(B)). First, an appellant
can establish that the medical condition caused a deficiency in performance,
attendance, or conduct by showing that her medical condition affects her ability
to perform specific work requirements, prevents her from being regular in
attendance, or causes her to act inappropriately. Id., ¶¶ 7-8. Alternatively, the
employee can show that her medical condition is incompatible with either useful
and efficient service or retention in the position by showing that it is inconsistent
with working in general, in a particular line of work, or in a particular type of
work setting. Id.¶9 The administrative judge found that the appellant failed to demonstrate that
her depression and anxiety caused deficiencies in her performance, conduct, or
attendance. ID at 4-6. The administrative judge also concluded that the appellant
failed to establish that her medical condition was incompatible with useful or
efficient service; however, she did not explain her reasoning. ID at 6. Because
we disagree with the administrative judge and find that the appellant did
demonstrate that her depression and anxiety caused deficiencies in at least her
5
performance and attendance, we need not reach the issue of whether her medical
conditions were inconsistent with working in general, in a particular line of work,
or in a particular type of work setting. 2
The administrative judge erred in finding that the appellant failed to establish that
her medical conditions caused a deficiency in performance and attendance.
¶10 In concluding that the appellant had failed to establish that her medical
conditions caused a deficiency in performance, conduct, or attendance, the
administrative judge acknowledged that the appellant’s depressive paranoid
behaviors impacted her work. ID at 6. However, she found that absent additional
medical evidence from the appellant, she could not conclude that the appellant
was disabled by her conditions. Id. This determination was in error.
¶11 Although objective medical evidence must be considered if available, such
evidence is not required to establish disability. Confer v. Office of Personnel
Management, 111 M.S.P.R. 419, ¶ 9 (2009) (citing Vanieken-Ryals v. Office of
Personnel Management, 508 F.3d 1034, 1040-44 (Fed. Cir. 2007)). The Board
will consider all pertinent evidence in determining an appellant’s entitlement to
disability retirement: objective clinical findings, diagnoses and medical opinions,
2
On review, the appellant alleges for the first time that she also suffered from a “sleep
disorder (Obstructive Sleep Apnea),” which negatively affected her performance of her
job duties. PFR File, Tab 1 at 5. Other than this allegation and general claims in the
record below that she does not sleep well, there is no evidence in the record related to a
sleep apnea condition. The appellant also did not include it in her disability retirement
application. IAF, Tab 5 at 31. Generally, the Board will not consider evidence relating
to a different or additional medical condition that was not the subject of the appellant’s
application to OPM. Rozar v. Office of Personnel Management, 61 M.S.P.R. 136, 140
(1994). An exception to this general rule exists if there is sufficient evidence that the
newly raised condition was related to the condition on which the application was based
and, thus, is not a totally different or additional condition. Gardner v. Office of
Personnel Management, 91 M.S.P.R. 391, ¶ 11 (2002) (citing Chappell v. Office of
Personnel Management, 79 M.S.P.R. 302, ¶ 6 (1998)). Because we conclude, below,
that the appellant has proven that her depression and anxiety were disabling, we decline
to make a finding regarding whether the appellant’s sleep apnea is related to those
conditions.
6
subjective evidence of pain and disability, and evidence relating to the effect of
the applicant’s conditions on her ability to perform the duties of her position.
Henderson v. Office of Personnel Management, 117 M.S.P.R. 313, ¶ 19 (2012).
Nothing in the law mandates that a single provider tie all of this evidence
together. Id. For example, if the medical provider sets forth clinical findings, a
diagnosis, and a description of how the medical condition affects the appellant’s
activities in general terms, the Board could consider that evidence, together with
the appellant’s subjective account of how the condition has affected her ability to
do her job and her daily life, testimony or statements from supervisors,
co-workers, family members, and friends, and the appellant’s position description
to conclude that the appellant’s medical conditions were disabling. Id.¶12 Considering the evidence as a whole, we find that the appellant’s medical
history does roughly correlate with her performance and attendance deficiencies.
The appellant alleged that her depression and anxiety caused her t o have paranoid
thoughts that affected her ability to concentrate at work and miss deadlines,
resulting in performance deficiencies. IAF, Tab 5 at 17; PFR File, Tab 1 at 5. In
her disability retirement application, she explains that she believed that her
coworkers and supervisors were “plotting” and “scheming” against her. IAF,
Tab 5 at 31. She claims that her supervisors would have “people” communicate
with her “only to gain information to conspire and use it against [her].” Id. They
would then “twist” things she said in an effort to “breakdown her relationship[s]
and isolate [her]” in order to “frame [her] in a work related crime, and VA fraud.”
Id. She describes that as a result of these thoughts she “spiraled out of control
and feared for [her] life [when] traveling to work and at work.” Id. For example,
on April 23, 2019 she left work because she believed she was in “emanate [sic]
danger,” called ONSTAR vehicle security as she drove to a safe place, and was
then admitted to a VA Psychiatric Hospital until May 10, 2019. Id. at 17.
¶13 The appellant’s medical records corroborate that she was admitted to the
VA Medical Center during this 17-day period and recommended not to return to
7
work for an additional week, until she was medically cleared. Id. at 111. Indeed,
according to her supervisor, following her hospitalization, the appellant was not
able to return to work until September 23, 2019. Id. at 30. Similarly, the
appellant’s daughter’s statement further corroborates that the appellant’s
depression with psychotic features began to worsen in early 2019. IAF, Tab 15
at 10. The daughter describes an incident where she accidentally turned the gas
stove on and the appellant thought “someone else had come in to do it
intentionally.” Id. She claims that the appellant made repeated statements about
“feeling ‘unsafe’ being ‘way out there in the woods,’” referring to her remote
work location. Id. Her daughter also claims that the appellant was so fearful of
her well-being that she would send pictures of herself “to show her clothing”
before heading to work in the morning. Id.¶14 The record reflects that during early 2020, at the beginning of the COVD -19
pandemic, the appellant’s depression and psychotic features improved whil e she
teleworked, although according to her daughter there was “always a sense of
carefulness or mistrust about coworkers and supervisors.” Id. However, the
appellant’s depressive psychotic thoughts began to worsen again in the 6 months
leading up to her March 2021 resignation and disability retirement application.
Id. According to the appellant, around the fall of 2020 when employees were
instructed to return to the office 2 days a week, the appellant came in several
days, but thereafter refused to work in the office because she believed that her
coworkers and supervisor were trying to harm her and she became fearful for her
life. IAF, Tab 5 at 17. For example, she implied on one occasion that her
coworkers and supervisor tried to poison her or harm her when they insisted she
eat food they cooked and were “looking at [her] and smirking, as if they had done
something to the food.” Id. She also claims that she believed that they turned off
the camera monitor in the office parking and gate areas in order to tamper with
her car, as she believed they had done on several other occasions. Id. Around
8
March 2021, she also believed she was being followed while driving home from
work. IAF, Tab 1 at 11.
¶15 The evidence described above is consistent with the medical notes from the
appellant’s medical appointments prior to and following her March 2021
resignation and application for disability retirement. On January 14, 2021, the
appellant contacted her provider, the Central Alabama Veterans Health Care
System’s Mental Health department, requesting to speak to her doctor about
changing the dosage of her antipsychotic and depression medication, Quetiapine
Fumarate (whose brand name is Seroquel). IAF, Tab 5 at 96. She stated that
“[t]his past month was not good for work” and that she was “having trouble
focusing and concentrating on [her] work.” Id. Then, on March 18, 2021, shortly
after her March 13 resignation, she again contacted her doctor to increase the
dosage of her Seroquel. Id. at 95. That day, her doctor conducted a telemedicine
appointment with the appellant and noted that the appellant stated that she was
“not doing well, not resting . . . having a lot of problem[s] on the job, [she had]
been depressed, stressed out.” Id. at 89-90. She stated that the appellant was
“having paranoid thoughts, felt that the people she worked with were plotting
against her, playing games towards her well being.” Id. at 91. She further noted
that the appellant “felt she was in a hostile work environment” and “she was
afraid for her safety.” Id. She stated that the appellant provided an example
about leaving work and thinking someone driving behind her was trying to harm
her. Id.¶16 First, the administrative judge determined that there was insufficient
evidence to establish that the appellant’s medical condition caused a deficiency in
attendance, particularly because she was able to telework effectively in the spring
of 2020 during the COVID-19 pandemic. ID at 4-5. We disagree.
¶17 There is sufficient evidence to conclude that the appellant’s absences were
due to her medical conditions. According to her supervisor’s statement, the
appellant’s attendance deficiencies began in April 22, 2019, which correlates with
9
her hospitalization and resulting inability to work until September 23, 2019. IAF,
Tab 5 at 30. The record also shows that, between April 2019 and March 2021, the
appellant used 83 hours of annual leave, 60 hours of sick leave, 860 hours of
leave without pay, and was absent without leave for about 24 hours. Id.Although the exact dates and reasons for the leave are not a part of the record ,
given the timing involved, we find that the appellant’s excessive absences were,
more likely than not, at least partly attributable to her depression and anxiety.
¶18 Second, the administrative judge found that the appellant had not
established a performance deficiency because, in the appellant’s response to
OPM, she alleged that her performance deficiencies were due to harassment . ID
at 4; IAF, Tab 5 at 16. We disagree and find sufficient evidence that the
appellant’s performance deficiencies were cause d by her depressive paranoid
thoughts and anxiety.
¶19 For instance, in the appellant’s supervisor’s statement, she indicated that
the appellant’s performance became unacceptable beginning in September 2018.
IAF, Tab 5 at 29. Indeed, the appellant’s most recent performance appraisal,
covering the rating period from April 1, 2020, to March 31, 2021, demonstrates
that the agency rated the appellant’s performance at the lowest possible level,
Unacceptable, leading up to her retirement and disability retirement application in
March 2021. Id. at 55-60. Consistent with the appellant’s statement that her
conditions affected her ability to concentrate, meet deadlines, and made her
paranoid in her communications with coworkers and supervisors, her supervisor
noted that the appellant’s critical elements of customer servic e and acquisition of
supplies and equipment were unacceptably low, particularly due to her difficulty
communicating with her supervisor and coworkers and timely placing and
tracking purchase card orders. Id. at 30. Her supervisor further observes that the
appellant’s medical absences and performance deficiencies negativel y impacted
the agency’s mission and work operations, and caused undue administrative
burdens on other administrative personnel. Id.10
¶20 Lastly, the administrative judge essentially gave no weight to the
appellant’s statement and her supervisor’s statements that her work deficiencies
were related to her medical conditions because the appellant claimed that her
work deficiencies were due to her supervisor’s harassment and her hostile work
environment. ID at 4. This was error. The Board has rejected disability claims
when the appellant’s conditions were largely situational, i.e. , based exclusively
on her reaction to a particular workplace or in the context of what she perceives
as a hostile work environment. Luzi v. Office of Personnel Management,
109 M.S.P.R. 79, ¶ 9 (2008); Cosby v. Office of Personnel Management,
106 M.S.P.R. 487, ¶¶ 7, 10 (2007). However, the Board has distinguished such
circumstances from ones in which job-related stress precipitated and exacerbated
an appellant’s condition, which was itself disabling. Kimble v. Office of
Personnel Management, 102 M.S.P.R. 604, ¶ 14 (2006) (finding that the
appellant’s work-related stress exacerbated her depression and anxiety to the
point that her condition became disabling); Thorne, 105 M.S.P.R. 171, ¶ 15
(finding that the appellant’s job-related stress precipitated and exacerbated his
psychiatric condition to the point that it became disabling ). Job-related stress
resulting in mental impairments that prevent an employee from performing the
duties required in her position can warrant the granting of disability retirement.
Kimble, 102 M.S.P.R. 604, ¶ 14; see Thorne, 105 M.S.P.R. 171, ¶ 15.
¶21 Here, the medical evidence and statements do not support a finding that the
appellant’s depression and anxiety were a reaction to her particular workplace or
harassment from her supervisor or coworkers. Rather, these conditions were
apparent outside of the specific work environment at the COE, where she began
working in 2017. The record shows that in April 2005 the appellant experienced
a similar episode of depression with psychosis including “mostly paranoid
delusions concerning her job,” which also resulted in a 2 -week psychiatric
intensive day treatment program. IAF, Tab 5 at 104. The appellant’s medical
notes in October and March 2020 leading up to her resignation also show that she
11
was experiencing increased anxiety and work -related stress, which exacerbated
her psychotic depression and anxiety. Id. at 31, 90, 100. Lastly, the appellant’s
most recent medical evidence from an appointment on April 22, 2022, shows that
she has continued to suffer from depression and anxiety over a year after
resigning and submitting her disability retirement ap plication in March 2021.
IAF, Tab 15 at 8-9; see Bell v. Office of Personnel Management, 87 M.S.P.R. 1,
¶¶ 18-20 (2000) (finding that the appellant’s problems with interpersonal contacts
following her removal from the agency supported the conclusion that she was
impaired beyond just her assignment under the supervisors who allegedly
precipitated her psychiatric disorder). Thus, we do not find that her depression
and anxiety were situational. 3
¶22 Considering all of the evidence, we conclude that the appellant has shown
by preponderant evidence that, while employed in a position subject to FERS, she
became disabled from useful and efficient service. Accordingly, she has
established her entitlement to a disability retirement annui ty, and we reverse the
administrative judge’s initial decision and OPM’s final decision. 4
ORDER
¶23 We ORDER OPM to award the appellant disability retirement. OPM must
complete this action no later than 20 days after the date of this decision.
3
The administrative judge found that the appellant’s medical conditions did not result
in a deficiency in conduct, without providing an explanation for her finding. ID at 6.
Because we find that the appellant established that her medical conditions caused
deficiencies in attendance and performance, we do not reach the question of whether
they also adversely impacted her conduct. See Beeler-Smith v. Office of Personnel
Management, 112 M.S.P.R. 479, ¶¶ 8-18 (2009) (determining that an appellant proved
she was disabled based solely on a performance deficiency).
4
Because we find that the appellant has established her entitlement to disability
retirement benefits, we need not consider her remaining arguments on review that the
administrative judge did not properly weigh her VA service-connected disability rating
of 50% for major depressive disorder. PFR File, Tab 1 at 4. We also have not
considered the appellant’s new evidence submitted on review. Id at 7-10.
12
¶24 We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and to describe the actions it
took to carry out the Board’s Order. We ORDER the appellant to provide all
necessary information OPM requests to help it carry out the Board’s Order. The
appellant, if not notified, should ask OPM about its progress. See 5 C.F.R.
§ 1201.181(b).
¶25 No later than 30 days after OPM tells the appellant it ha s fully carried out
the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not fully carry out the Board’s Order. The petition should cont ain
specific reasons why the appellant believes OPM has not fully carried out the
Board’s Order, and should include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201.182(a).
¶26 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) ( 5 C.F.R.
§ 1201.113(c)).
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
13
NOTICE OF APPEAL RIGHTS 5
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 bel ow 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:
5
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. 6 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
6
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
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.