Filed: Jul. 20, 2016
Latest Update: Mar. 03, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD GREGORY MCINNIS, DOCKET NUMBER Appellant, CH-0752-14-0518-I-1 v. DEPARTMENT OF EDUCATION, DATE: July 20, 2016 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Gregory McInnis, Indianapolis, Indiana, pro se. Eun Kim, Esquire, Washington, D.C., for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained his removal. Generally,
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD GREGORY MCINNIS, DOCKET NUMBER Appellant, CH-0752-14-0518-I-1 v. DEPARTMENT OF EDUCATION, DATE: July 20, 2016 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Gregory McInnis, Indianapolis, Indiana, pro se. Eun Kim, Esquire, Washington, D.C., for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained his removal. Generally, w..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GREGORY MCINNIS, DOCKET NUMBER
Appellant, CH-0752-14-0518-I-1
v.
DEPARTMENT OF EDUCATION, DATE: July 20, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Gregory McInnis, Indianapolis, Indiana, pro se.
Eun Kim, Esquire, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 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 when:
the initial decision contains erroneous findings of material fact; the initial
decision is based on an erroneous interpretation of statute or regulation or the
erroneous application of the law to the facts of the case; the administrative
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. See title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 In March 2011, the appellant, a GS-13 Senior Institutional Review
Specialist, was counseled about his failure to comply with time and attendance
reporting procedures and, in connection therewith, was notified that his use of
sick leave would be restricted for a 6-month period, effective September 9, 2011,
requiring him to submit medical documentation of incapacitation to support any
request for approval of leave because of sickness. Initial Appeal File (IAF),
Tab 14, Subtab 4(d)(4). He was again counseled in March 2012, and advised that,
because he was still failing to follow procedures, the sick leave restrictions would
be continued for another 6-month period. Id., Subtab 4(d)(5). By memorandum
of December 13, 2012, the agency placed the appellant on leave restriction for
6 more months, setting out what he was required to do in the future if he was ill
and unable to report for duty, if he had scheduled medical appointments, if he was
requesting annual leave, and if he was going to be arriving late to work. Id.,
Subtab 4(d)(6). And, on June 10, 2013, based on the appellant’s poor showing of
compliance, the agency again extended his leave restrictions for another 6‑month
period. Id., Subtab 4(d)(7).
¶3 The agency removed the appellant from his position, effective January 24,
2014, based on: (1) absence without leave (AWOL); (2) failure to follow leave
procedures; and (3) failure to follow instructions. IAF, Subtabs 4(a), (b), and (d).
3
In the first charge, the agency alleged that, on 47 occasions from December 20,
2012, to August 22, 2013, totaling 298 hours, the appellant either did not report
to work for part of the day, left early, or did not report at all, that his absences
were not approved in advance, and that he supplied no documentation in support
of his absences. Id., Subtab 4(d) at 293-94. In the second charge, the agency
alleged that, on 61 occasions, again from December 20, 2012, to August 22, 2013,
the appellant did not submit evidence in support of his absences or otherwise
notify his supervisor in accordance with the requirements of his leave restrictions
memoranda. In each specification, the agency set out the appellant’s action or
inaction, the explanations he provided for his absences when he provided
explanations, and his failure to submit supporting documentation, as required. Id.
at 295-303. In the third charge, the agency alleged that the appellant failed to
follow instructions by not timely completing required security training and not
initiating procedures for a security breach incident, resulting in the matter being
reassigned to another employee for completion months later. Id. at 304-05. In
determining to impose a removal penalty, the agency considered the appellant’s
past disciplinary record consisting of a 14-day suspension in February 2011, in
part for his failure to follow supervisory instructions and established work
procedures, and a 30-day suspension in December 2012 for AWOL and failure to
follow leave requesting and reporting procedures. Id. at 307.
¶4 On appeal, the appellant challenged the charges and alleged that other
employees had committed similar infractions but were not removed. IAF, Tab 18
at 5-6. He also raised several affirmative defenses. Specifically, he claimed that
the agency’s action was in retaliation for protected disclosures he made regarding
the underperforming of Perot Systems contracts with Federal Student Aid (FSA). 2
2
The appellant raised this same disclosure in an individual right of action appeal he
filed with the Board on November 16, 2012. In that appeal, he claimed that the agency
took other personnel actions against him based on this disclosure and because he was
perceived as a whistleblower. The administrative judge denied the appellant’s request
for corrective action. McInnis v. Department of Education, MSPB Docket No. CH-
4
Id. at 6-7. The appellant also alleged that the agency removed him because of
complaints he filed alleging that his second-line supervisor was “intertwined”
with female subordinates to whom he provided undeserved promotions, raises,
and bonuses. Id. at 8-9. The appellant alleged disability discrimination based on
a disabling knee condition, id. at 10-17, and military status discrimination based
on his status as a disabled veteran, id. at 17. He requested a hearing. IAF, Tab 1
at 2.
¶5 Thereafter, the administrative judge issued an initial decision affirming the
agency’s action. IAF, Tab 18, Initial Decision (ID) at 1, 40. Regarding the
AWOL charge, she reviewed the evidence the agency submitted in support of all
the specifications, ID at 9, and noted that the appellant did not deny that he was
absent during the alleged periods or that his absences were recorded as AWOL,
ID at 7. She considered his claim that his absences were the result of his medical
condition, but found that, of the 47 specifications, only 4 could be attributed to
any illness whatsoever, that none of those related to his medical condition or
disability, and that, in any event, he failed to submit leave requests and
supporting documentation in connection with these absences. ID at 10. The
administrative judge sustained the remaining specifications except for three
instances when the appellant’s supervisor acknowledged that the appellant
should not have been charged AWOL because of the agency’s liberal leave policy
and because he did submit leave requests in connection with his arriving late or
leaving early on those dates due to extreme inclement weather. ID at 11-15.
Notwithstanding, the administrative judge found the AWOL charge sustained
(44 occasions, 293 hours). ID at 15. Regarding the failure to follow leave
procedures charge, the administrative judge found that the appellant was well
aware of the procedures required, having been disciplined previously for the same
1221-13-0118-W‑2, Initial Decision at 2, 9 (Dec. 20, 2013). The initial decision
became final when neither party filed a petition for review.
5
type of behavior. ID at 16. She further found that he did not dispute that he was
absent or tardy on the dates in question, but claimed that he always notified his
supervisor. The administrative judge found, however, that the agency’s
documentary and testimonial evidence showing that the appellant failed to
comply with his leave restrictions was more credible than his contrary assertions.
Id. As to the 61 specifications, the administrative judge sustained all except for
3 specifications having to do with the inclement weather, ID at 18, and another
instance wherein the appellant requested advanced leave during a time when the
agency’s time and attendance database, WebTA, was malfunctioning.
Notwithstanding, the administrative judge found the charge of failure to follow
leave procedures sustained (57 specifications). ID at 20. She also sustained both
specifications of the charge of failure to follow instructions, ID at 20‑22, and
concluded that discipline for the sustained charges promoted the efficiency of the
service, ID at 22‑23.
¶6 As to the appellant’s affirmative defenses, the administrative judge first
addressed his whistleblowing claim. She found that he failed to show that he
reasonably believed that the agency’s actions regarding the Perot Systems
contracts evidenced a gross waste of funds, gross mismanagement, or a violation
of law, rule, or regulation, ID at 26-27, and that he provided no evidence to
support his claim that the agency mistakenly viewed his disclosures as protected
activity, thereby perceiving him as a whistleblower, ID at 27. The administrative
judge further found that, even if the appellant showed that he had made a
protected disclosure or that the agency perceived him as a whistleblower, he
failed to show that either was a contributing factor in his removal because of the
time lapse between the disclosures and the relevant action. ID at 27-29. The
administrative judge further found that, even if the appellant established that his
disclosures were a contributing factor in the agency’s action, the agency showed
6
by clear and convincing evidence that it would have removed the appellant, even
absent any disclosures. 3 ID at 29‑31.
¶7 As to the appellant’s claim of disability discrimination, the administrative
judge found that he was disabled by his knee condition that he sustained during
his time in the military and that he was a qualified individual with a disability, ID
at 33-34, but that he failed to show that his removal was a result of his disability
because his numerous absences were not attributed to his knee condition, but
rather to other unspecific illnesses, a court appearance, home maintenance issues,
a personal appointment, and a missed train, and that, for a number of the
absences, he had provided no specific reasons, ID at 34-35. To the extent the
appellant argued that he was treated more harshly than others when it came to his
medical issues, the administrative judge found that he failed to prove that his
disabling condition was a motivating factor in the agency’s decision to remove
him. ID at 35‑36.
¶8 The administrative judge found unsupported the appellant’s allegation of
military status discrimination under the Uniformed Services Employment and
Reemployment Rights Act (USERRA) on the basis that his claim that the
agency’s action was based on his disability, as opposed to his military status, was
not protected under USERRA. ID at 36-37; see McBride v. U.S. Postal Service,
78 M.S.P.R. 411, 414-15 (1998).
¶9 Finally, the administrative judge addressed the reasonableness of the
removal penalty, finding that the deciding official carefully considered the
3
In addressing the appellant’s claim that the agency retaliated against him because of
complaints he filed against his second-level supervisor regarding his allegedly improper
actions with female subordinates to whom he provided special treatment, the
administrative judge found no evidence that the appellant ever filed a sex
discrimination complaint or engaged in other activity protected by 5 U.S.C.
§ 2302(b)(9), and that, even if he had, he did not show that the accused officials or
actors in this appeal were aware of it. ID at 31‑32.
7
appropriate Douglas factors 4 in determining to impose removal for the sustained
charges and that the decision was within the tolerable limits of reasonableness.
ID at 37‑40.
¶10 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 4.
¶11 On review, the appellant first argues that the agency issued the letter of
decision outside of the required time frame as set forth in section 41.09 of the
collective bargaining agreement; that is, no later than 15 workdays from the
agency’s receipt of his response to the notice of proposed removal. PFR File,
Tab 1 at 3. The record does not reflect that the appellant raised any claim of
harmful error below. IAF, Tab 18 (Summary of Prehearing Conference).
Moreover, the administrative judge advised the parties that, if either believed her
summary of the conference to be incorrect, that party must notify her within
7 days of the Order and that, in the absence of any such notice, the parties would
be bound by the issues as set forth in the summary. Id. The appellant did not
note any exception to the summary. Because he failed to preserve an objection to
the absence of this claim from the issues to be considered below, he is precluded
from raising it on review. Brown v. Department of the Army, 96 M.S.P.R. 232,
¶ 6 (2004).
¶12 In challenging the administrative judge’s upholding of the AWOL charge,
the appellant argues generally that, because he was on leave restriction, he was
unable to record his time and attendance and that he had, in fact, been directed by
his supervisor not to enter any information in WebTA. PFR File, Tab 1 at 4-5.
He refers to an email allegedly sent to him by his supervisor, id. at 7, and the
supervisor’s hearing testimony, both of which he argues are supportive of his
claim. However, he did not submit the email into the record, and, in fact, the
4
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of factors, both aggravating and mitigating, that are
relevant to the penalty determination in adverse action cases.
8
supervisor testified that, while the appellant was directed not to complete his time
sheets, he remained at all times responsible for documenting reasons or
justifications for taking leave. Hearing Transcript (HT) at 89-92. As such, the
appellant’s unsupported arguments in this regard do not outweigh the agency’s
contrary preponderant evidence.
¶13 The appellant challenges most, if not all, of the 44 specifications of AWOL
that the administrative judge sustained. 5 PFR File, Tab 1 at 7-13. For example,
the appellant argues that well more than four of the specifications were weather
related, and he claims that, in these cases, he timely notified his supervisor that
he would not be able to come to work and/or requested administrative leave. Id.
at 8-9, 10-11. However, the weather-related excuses the appellant now offers are
different than the excuses he offered below and are contradicted by the agency’s
supporting documentation. See, e.g., IAF, Tab 4(d)(7). As to his other absences,
the appellant insists that he reported to duty and came to work on time. PFR File,
Tab 1 at 11. Again, this is not an argument the appellant raised below, and it too
is contradicted by the agency’s evidence. And, as to numerous other absences,
the appellant claims that he notified his supervisor that he was incapacitated for
duty by virtue of his being a disabled veteran. Id. at 11‑12. However, the
appellant did not raise this argument below, and therefore the Board will not now
consider it. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).
In many of the other instances, the appellant offered contrary excuses below for
his absences. See, e.g., IAF, Tab 14, Subtab 4(d)(7). In sum, he has not
supported his claims on review with any documentation, whereas the agency has,
in each instance, provided documentation sufficient to establish the AWOL
charge by a preponderance of the evidence.
5
The appellant even challenges the three specifications that the administrative judge
did not sustain. PFR File, Tab 1 at 8-9; ID at 15.
9
¶14 As to charge 2, failure to follow leave procedures, the appellant argues
generally, as he did in his challenge to the AWOL charge, that his supervisor had
directed him not to enter any information in WebTA. PFR File, Tab 1 at 13-14.
As we have found, however, the appellant’s supervisor testified that, while the
appellant was directed not to complete his time sheets, he remained at all times
responsible for documenting reasons or justifications for taking leave, HT
at 89‑92, and the record includes several examples wherein he did, in fact, submit
leave requests for approval, see, e.g., IAF, Tab 14, Subtab 4(d)(10), (12). As for
the email the appellant contends establishes the supervisor’s directive that he not
enter information into WebTA, as we have found, the appellant did not submit
any such email into the record. Therefore, he has not shown any error in the
administrative judge’s finding that the agency proved this charge by preponderant
evidence because the appellant was given proper instructions for requesting leave,
yet failed to comply. See Hamilton v. U.S. Postal Service, 71 M.S.P.R. 547,
555‑57 (1996).
¶15 Regarding the first specification of charge 3, failure to timely complete
security training, the appellant argues on review that he already had completed
the training by means of a Department-approved workaround, told his supervisor
so, and provided him a copy, even before the supervisor specifically reminded
him to do it. PFR File, Tab 1 at 14. In support, the appellant refers to an email
sent to staff acknowledging and describing the workaround. IAF, Tab 14,
Subtab 4(d) at 228. Although the administrative judge did not specifically find
that the appellant took the training by means of the workaround, she nonetheless
found that he did not email the agency of his completion, as required, he therefore
did not complete the training, and that, because he did not, the agency proved that
he failed to follow instructions. Id.; ID at 21. Although the appellant argues on
review that he did notify his supervisor that he had completed the training, he
10
submitted no evidence in support of his claim. 6 The agency, on the other hand,
submitted notice of the training requirement, IAF, Tab 14, Subtab 4(d)(28),
various reminders, id., Subtab 4(d)(29), specific notification of the due date,
id.,
Subtab 4(d)(30), and an email showing the appellant as one of several employees
who had not yet completed the training, id., Subtab 4(d)(31). Therefore, the
appellant has not shown error in the administrative judge’s finding that the
agency proved this specification. Hamilton, 71 M.S.P.R. at 555‑57.
¶16 As to the second specification of charge 2, failure to timely initiate certain
required security breach procedures and update the results on PCNet, the
appellant argues on review that this only required a call to the specific institution
at issue, and, inexplicably, that the matter “was over 4 years old.” PFR File,
Tab 1 at 16. The administrative judge found that the appellant was given the
tasks on May 29, 2013, and that, when they had not been completed by
August 29, 2013, they were reassigned to another employee. ID at 22; IAF,
Tab 14, Subtab 4(d)(32). The appellant’s claim that the task was easily
accomplished does not explain why he did not accomplish it. As such, he has not
shown error in the administrative judge’s finding that the agency proved this
specification, and thus, the charge.
¶17 On review, the appellant challenges the administrative judge’s finding that
he did not establish his claim that the agency’s action was taken in retaliation for
his whistleblowing disclosure regarding the Perot Systems contract. PFR File,
Tab 1 at 16-17. He alleges that a number of managers knew about his disclosure
because they were present during discussions regarding the contract, and that the
personnel action took place within a period of time such that a reasonable person
could conclude that the disclosure was a contributing factor. He also contends
that the agency failed to establish that the evidence in support of the charges is
clear and convincing. Id. In addressing the appellant’s whistleblowing claim, the
6
The appellant did not testify at the hearing.
11
administrative judge found that, based on his lack of knowledge about the
contract’s terms and conditions, payments made by FSA, negotiations concerning
performance, or any other relevant circumstances pertaining to the agreement
with Perot Systems, the appellant failed to prove that he reasonably believed that
the agency engaged in a gross waste of funds, gross mismanagement, or a
violation of law, rule, or regulation, and that he therefore did not establish that he
made a protected disclosure. ID at 26-27. The appellant has not challenged that
finding on review, and we discern no basis upon which to reweigh the evidence or
substitute our assessment of the evidence for that of the administrative judge.
Crosby v. U.S. Postal Service, 71 M.S.P.R. 98, 105-06 (1997). Because the
appellant failed to show that he made a protected disclosure, his claim of
retaliation for whistleblowing must fail. See Wadhwa v. Department of Veterans
Affairs, 110 M.S.P.R. 615, ¶ 5, aff’d, 353 F. App’x 435 (Fed. Cir. 2009). The
appellant’s challenges to the administrative judge’s alternate findings, that the
agency established by clear and convincing evidence that it would have removed
him absent any protected disclosure, cannot change that result and are
therefore unavailing.
¶18 Finally, the appellant challenges on review the administrative judge’s
finding that he failed to establish his claim of disability discrimination. PFR File,
Tab 1 at 17. He claims that the agency placed him on AWOL because of his
disability, and denied him the use of flexiplace or other accommodations,
including leave under the Family and Medical Leave Act (FMLA). Id. The
appellant has not, however, shown error in the administrative judge’s finding that
the absences the agency relied upon in its decision to remove him were not
related to the knee condition he claimed as disabling. ID at 34. Rather, as the
administrative judge found, the record showed that the reasons the appellant
provided for those absences included court appearances, unspecified illnesses not
related to his knee, home maintenance matters, weather, and missed
transportation, and that, in the remaining instances, he provided no explanations.
12
ID at 8. Therefore, the appellant has not shown error in the administrative
judge’s finding that the agency did not charge him AWOL because of his
disability. Moreover, while he claims that the agency did not allow him to use
flexiplace as it did others, he also has not challenged the administrative judge’s
findings that his performance was rated as unsatisfactory for FY 2012, 7 ID at 35,
and that poor performance may properly be considered in the agency’s decision to
allow flexiplace, ID at 11; IAF, Tab 20 at 15. In addition, while the appellant
asserts that the agency should have granted him leave under the FMLA, he
has not shown that the administrative judge erred in finding that he never
formally requested such leave, even though his supervisor suggested that he do
so. ID at 13; IAF, Tab 14, Subtab 4(d)(6), (7). Further, because, as noted, the
appellant did not attribute his numerous absences to his disabling medical
condition or allege that he was incapacitated on the dates in question, he
would not have been entitled to FMLA leave for those dates in any event. See,
e.g., Jones v. U.S. Postal Service, 103 M.S.P.R. 561, ¶ 13 (2006), aff’d,
248 F. App’x 160 (Fed. Cir. 2007). In sum, the administrative judge correctly
found that the appellant did not establish his claim of disability discrimination
because he did not show that the action appealed was based upon his disability,
and because, to the extent that he claimed disparate treatment regarding the issue
of possible accommodations, he failed to show that his disability was a
motivating factor in the agency’s decision to remove him. Forte v. Department of
the Navy, 123 M.S.P.R. 124, ¶ 27 (2016); ID at 33‑36.
¶19 On review, the appellant also argues generally that he was denied the
opportunity to furnish documentation, PFR File, Tab 1 at 21, and he has
submitted such documents with his petition for review. Certain of them are news
reports on the weather conditions on some of the dates at issue. Id. at 25‑27,
7
The appellant was also denied a within-grade increase to step 7 on December 20,
2012. IAF, Tab 17 at 5‑9.
13
30‑37. The appellant did not, however, submit these documents below. IAF,
Tab 18. His failure to show that they were unavailable prior to the close of the
record below precludes them from being considered for the first time on review.
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). The same may be
said for a document relating to train delays, although it does not appear that the
date of the article coincides with any of the dates at issue. PFR File, Tab 1
at 38‑39. Other documents the appellant has submitted on review are a part of
the record below, id. at 46-47; IAF, Tab 14, Subtab 4(d)(30), and therefore they
are not new evidence. Meier v. Department of the Interior, 3 M.S.P.R. 247, 256
(1980). Finally, documents related to the appellant’s alleged protected
disclosure, PFR File, Tab 1 at 49-50, 53-56, are also not new. Avansino,
3 M.S.P.R. at 214. And, to the extent the appellant argues generally that certain
documents related to his whistleblowing disclosure were not considered or
mentioned, PFR File, Tab 1 at 21, it is well established that an administrative
judge’s failure to mention all of the evidence of record does not mean that she
did not consider it in reaching her decision. Marques v. Department of Health &
Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d,
776 F.2d 1062 (Fed. Cir.
1985) (Table).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision. There
are several options for further review set forth in the paragraphs below. You may
choose only one of these options, and once you elect to pursue one of the avenues
of review set forth below, you may be precluded from pursuing any other avenue
of review.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
14
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request 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 your request 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, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after your
receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time. 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
15
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
Other Claims: Judicial Review
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U.S. Court of Appeals for the
Federal Circuit or by any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time.
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
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, and 11. Additional
information about other 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.
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
16
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
