Tanya F. Pelcher-Herring v. Federal Mediation and Conciliation Service

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

TANYA F. PELCHER-HERRING, DOCKET NUMBER
Appellant, DC-0752-13-0152-B-1

v.

FEDERAL MEDIATION AND DATE: November 12, 2014
CONCILIATION SERVICE,
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Tanya F. Pelcher-Herring, Brentwood, Maryland, pro se.

William B. Wiley, Esquire, San Francisco, California, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the remand initial decision
which denied her affirmative defenses under 5 U.S.C. § 2302(b)(9)(B) and
(b)(12). For the reasons set forth below, the appellant’s petition for review is

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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DISMISSED as untimely filed without good cause shown. 5 C.F.R.
§ 1201.114(e), (g).

BACKGROUND
¶2 The appellant filed an initial appeal of her removal based on her medical
inability to perform the duties of her position. Initial Appeal File (IAF), Tab 1.
In a nonprecedential remand order, we affirmed the majority of the administrative
judge’s initial decision sustaining the appellant’s removal and denying her
affirmative defenses of discrimination, whistleblower reprisal, harmful error, and
due process violations. MSPB Docket No. DC-0752-13-0152-I-1, Petition for
Review File, Tab 6, Remand Order at 2-3 (Jan. 23, 2014). Upon reviewing the
appellant’s initial appeal and the administrative judge’s prehearing orders and
initial decision, however, we found that the administrative judge failed to address
the appellant’s affirmative defenses of prohibited personnel practices
under 5 U.S.C. § 2302(b)(9)(B) and (b)(12). Id. at 3. We remanded the case to
the administrative judge with instructions to apprise the appellant of her burdens
to establish these defenses, to hold a supplemental hearing, and to reissue the
initial decision addressing these claims. Id. at 18-19. We further explained that,
if the administrative judge denied these affirmative defenses, he could readopt the
prior initial decision sustaining the appellant’s removal and denying the other
affirmative defenses. Id. at 19-20.
¶3 Following our remand order, the administrative judge allowed the parties a
limited opportunity to develop the record on the issues raised in connection with
the appellant’s affirmative defenses under 5 U.S.C. § 2302(b)(9)(B) and (b)(12),
and he held a supplemental hearing. On July 2, 2014, the administrative judge
issued a remand initial decision denying the appellant’s affirmative defenses,
finding that, although she established that she engaged in a protected activity
under section 2302(b)(9)(B) by testifying and assisting other employees with
equal employment opportunity and Office of Special Counsel complaints, she
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failed to establish that any of the agency officials involved in her removal
proceedings were aware of her protected activity. Remand Appeal File, Tab 24,
Remand Initial Decision (RID) at 5-6. The administrative judge then readopted
the findings in the prior initial decision sustaining her removal and denying her
other affirmative defenses. RID at 6.
¶4 The appellant filed a petition for review of the initial decision on August 7,
2014, via the Board’s e-Appeal system. Petition for Review (PFR) File, Tab 1.
The administrative judge’s initial decision, however, became final on August 6,
2014. RID at 7; 5 C.F.R. § 1201.113. In response to the Board’s timeliness
questionnaire, the appellant alleged that she did not receive the initial decision
until July 8, 2014, 6 days after it was issued by the administrative judge, and that
she also experienced a medical condition during the petition for review filing
period which established good cause for her untimely filing. PFR File, Tabs 1, 4.
The agency has filed a response in opposition to the petition for review, and the
appellant has filed a reply. PFR File, Tabs 5-6.

DISCUSSION OF ARGUMENTS ON REVIEW
¶5 A petition for review generally must be filed within 35 days after the date
of issuance of the initial decision or, if the party filing the petition shows that the
initial decision was received more than 5 days after it was issued, within 30 days
after the party received the initial decision. 5 C.F.R. § 1201.114(e). Here, the
initial decision was issued on July 2, 2014, thus making the petition for review
filing deadline August 6, 2014. RID at 7. The appellant, however, filed her
petition for review on August 7, 2014. PFR File, Tab 1. Although the appellant
claims she received the remand initial decision on July 8, 2014, PFR File, Tab 1
at 3, the appellant was registered as an e-filer, see IAF, Tab 1 at 2, and pursuant
to 5 C.F.R. § 1201.14(m)(2), the appellant is deemed to have received the remand
initial decision on the date of its electronic submission, July 2, 2014. We thus
find that the appellant filed her petition for review 1 day late.
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¶6 The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g).
The party submitting the untimely petition for review has the burden of
establishing good cause for the untimely filing by showing that she exercised due
diligence or ordinary prudence under the particular circumstances of the case.
Palermo v. Department of the Navy, 120 M.S.P.R. 694, ¶ 4 (2014). To determine
whether a party has established good cause, the Board will consider the length of
the delay, the reasonableness of the excuse and the party’s showing of due
diligence, whether she is proceeding pro se, and whether she has presented
evidence of circumstances beyond her control that affected her ability to comply
with the time limits or of unavoidable casualty or misfortune which similarly
shows a causal relationship to her inability to timely file her petition. Id.
¶7 We find that the appellant has not established good cause for accepting her
untimely petition for review. Although the appellant is proceeding pro se, and
her petition for review was filed only 1 day late, we find that the appellant has
offered no justification for her late filing other than to assert that she received the
remand initial decision 6 days after it was electronically transmitted to the
parties. See PFR File, Tab 1 at 3. Pursuant to 5 C.F.R. § 1201.14(m)(2),
however, Board documents served electronically on registered e-filers are deemed
received on the date of electronic submission, and the appellant has offered no
basis to substantiate her claim that she received the decision 6 days after it was
electronically issued. See PFR File, Tabs 1, 4. We therefore find no reason to
deviate from the presumption of receipt under 5 C.F.R. § 1201.14(m)(2). See
Palermo, 120 M.S.P.R. 694, ¶ 5 (explaining that under limited circumstances, the
Board will excuse late filings caused by difficulties encountered with the
e-Appeal system). The appellant, moreover, has not argued that she encountered
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filing difficulties with the e-Appeal system during the petition for review filing
period which could excuse her late filing. 2 PFR File, Tab 4 at 5.
¶8 The Board has also found that a party’s misinterpretation or misreading of
the filing deadline, without more, does not establish good cause for an untimely
filing where the initial decision informs the parties of the proper filing deadline
and provides notice of the process for filing a petition for review. See Waldo v.
Department of the Air Force, 93 M.S.P.R. 58, ¶ 9 (2002). We find no reason to
conclude that any confusion the appellant may have encountered establishes good
cause for her untimely filing. See id. Additionally, although the appellant is
proceeding pro se, and the delay in her filing is minimal, these factors, alone, do
not demonstrate good cause. See Sutton v. Office of Personnel
Management, 113 M.S.P.R. 576, ¶ 12 (2010), aff’d, 414 F. App’x 272 (Fed. Cir.
2011), cert denied, 132 S. Ct. 837 (2011).
¶9 Finally, we find that the appellant’s medical condition, which arose during
the petition for review filing period, does not establish good cause for her
untimely filing. PFR File, Tab 4 at 5 (the appellant’s assertion that she had
surgical procedures and follow up appointments on July 15 and 16, 2014).
Although the appellant has submitted documentation establishing that she
attended medical appointments on two dates in July 2014, the appellant has not
explained how her medical condition or her attendance at these appointments
prevented her from timely filing her petition for review or from requesting an
extension of time. See Sutton, 113 M.S.P.R. 576, ¶ 10. The appellant, therefore,
has not established good cause for her untimely filing based on medical
incapacity. See id.

2
The appellant argues that the e-Appeal system was inaccessible after midnight on
August 7, 2014, due to system maintenance and that it was not accessible again until the
morning of August 8, 2014. See PFR File, Tab 4 at 5. Because this system
maintenance post-dates the remand initial decision’s finality date, we find that it does
not establish good cause for the appellant’s untimely filing.
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¶10 Accordingly, we DISMISS the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The remand initial decision, together with the initial
decision in MSPB Docket No. DC-0752-13-0152-I-1, is the Board’s final decision
affirming the appellant’s removal from employment and denying her affirmative
defenses.

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
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
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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 United States
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
prepayment of fees, costs, or other security. 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 United States 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
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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 United States 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 http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for a list of attorneys who have
expressed interest in providing pro bono representation for Merit Systems
Protection Board appellants before the Federal Circuit. The 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.