UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY B. SARRATT, DOCKET NUMBER
Appellant, PH-0752-14-0550-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: February 3, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Philip K. Miles, Esquire, State College, New York, for the appellant.
Lori L. Markle, Esquire, Philadelphia, Pennsylvania, 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 initial decision, which
dismissed the appellant’s mixed case removal appeal as untimely without good
cause for the delay. Generally, we grant petitions such as this one only when:
the initial decision contains erroneous findings of material fact; the initial
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
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 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, and based on the following points and authorities, 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 The appellant was a preference-eligible Sales, Services, and Distribution
Associate for the agency. Initial Appeal File (IAF), Tab 5 at 19. The agency
removed him for misconduct effective November 25, 2011. Id. at 19, 58-59. The
decision letter informed the appellant of his review rights, including his Board
appeal rights and his equal employment opportunity (EEO) complaint rights, as
well as the time limits for pursuing those appeal rights. Id. at 59-60. On
December 29, 2011, the appellant filed a formal EEO complaint concerning his
removal. IAF, Tab 9, Exhibit 11.
¶3 At that time, the appellant had two other formal EEO complaints concerning
two 7-day suspensions pending before an Equal Employment Opportunity
Commission (EEOC) administrative judge. On January 20, 2012, he filed a
motion to consolidate all three complaints. Id., Exhibit 13. On May 4, 2012, the
EEOC administrative judge granted the motion to consolidate for purposes of a
hearing. Id., Exhibit 16. In the meantime, however, on April 23, 2012, the
agency issued a final decision in the appellant’s removal complaint finding no
discrimination and notifying the appellant of his right to file a Board appeal
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within 30 days of the date he received the decision. IAF, Tab 5 at 38-56. It was
not until February 11, 2014, that the EEOC administrative judge dismissed the
appellant’s request for a hearing on his removal complaint on the basis that it
pertained to mixed-case subject matter and that any appeal rights from the final
agency decision were to the Board. IAF, Tab 9, Exhibit 21. The appellant filed
the instant Board appeal of his removal on February 25, 2014. IAF, Tab 1.
¶4 After notifying the appellant that his appeal appeared to be untimely,
informing him of his burden regarding timeliness, and receiving evidence and
argument on the issue, the administrative judge issued an initial decision
dismissing the appeal as untimely filed without good cause for the delay. IAF,
Tab 7, Tab 10, Initial Decision (ID) at 2, 12. The administrative judge
acknowledged the appellant’s argument that he was confused by the consolidation
order and believed that his removal complaint was still proceeding through the
EEO process despite the April 23, 2012 final agency decision. ID at 5-6; IAF,
Tab 1 at 1, Tab 8 at 8-9. However, she found that, notwithstanding the
consolidation order, the appellant had been advised no fewer than four times
throughout the process that he would have a right to a hearing only before the
Board—not the EEOC—and that any appeal rights from the final agency decision
would be to the Board. ID at 6-11; IAF, Tab 5 at 55-56, 59-60, Tab 9, Exhibits
11, 14. The administrative judge also found that the appellant’s motion to
consolidate failed to notify the EEOC administrative judge that one of the
complaints that he was seeking to consolidate was a mixed case. ID at 10-11.
Considering these matters, along with the length of the filing delay, the
administrative judge found that there was no good cause to waive the deadline. 2
ID at 12.
2
The appellant’s union grieved his removal, and on November 7, 2013, an arbitrator
denied the grievance. IAF, Tab 5 at 21-36. The administrative judge directed the
parties to address the preclusive effect, if any, of that arbitration award. IAF, Tab 6.
Ultimately, the administrative judge declined to reach the issue because she had decided
the appeal on timeliness grounds. ID at 12 n.8. We likewise do not reach the issue of
4
¶5 The appellant has filed a petition for review, reiterating his arguments that
his delayed filing was caused by his reasonable reliance on the EEOC
administrative judge’s consolidation order and that he demonstrated due diligence
by filing his Board appeal promptly after the EEOC administrative judge
dismissed his hearing request. Petition for Review (PFR) File, Tab 1 at 7-8, 10.
He also argues that his appeal should be considered timely under 5 U.S.C.
§ 7702(f), which provides that an appeal that is timely filed with the wrong
agency shall be treated as having been timely filed with the proper agency. Id. at
8-9. The agency has filed a response in opposition. PFR File, Tab 5.
¶6 We first address the issue of whether the instant appeal should be treated as
timely under 5 U.S.C. § 7702(f). At the outset, we note that the appellant has
raised this argument for the first time on petition for review without explaining
why he did not raise it below. See Banks v. Department of the Air Force,
4 M.S.P.R. 268, 271 (1980) (the Board generally will not consider an argument
raised for the first time in a petition for review absent a showing that it is based
on new and material evidence not previously available despite the party’s due
diligence). In any event, even considering this argument, we find that 5 U.S.C.
§ 7702(f) does not apply to this situation. The text of the statute is as follows:
In any case in which an employee is required to file any action,
appeal, or petition under this section and the employee timely files
the action, appeal, or petition with an agency other than the agency
with which the action, appeal, or petition is to be filed, the employee
shall be treated as having timely filed the action, appeal, or petition
as of the date it is filed with the proper agency.
5 U.S.C. § 7702(f). Under its plain terms, this section only applies to situations
in which “the employee timely files the action, appeal, or petition with an agency
other than the agency with which the action, appeal, or petition is to be filed.”
Id.; see Van Wersch v. Department of Health & Human Services, 197 F.3d 1144,
whether that arbitration award precludes the Board from decid ing the merits of th is
appeal or of any particular issues that this appeal presents.
5
1148 (Fed. Cir. 1999) (statutory construction begins with the language of the
statute itself). This did not occur here. The appellant undertook no act of filing
after he received the final agency decision until he filed the instant Board appeal
nearly 2 years later. Instead, he did nothing, proceeding under the mistaken
assumption that the EEOC would continue to process his claim. We find that the
appellant’s inaction is not tantamount to filing an appeal of the final agency
decision with the EEOC. The appellant argues that he “unquestionably submitted
his removal challenge to the EEOC in a timely manner,” PFR File, Tab 1 at 9, but
he appears to be referring to his formal EEO complaint and not to any timely but
misdirected challenge to the final agency decision on that complaint. The
appellant’s initial timely filing of his EEO complaint does not afford him the
protections of 5 U.S.C. § 7702(f) for filings that he neglected to make during
subsequent stages of the appeals process.
¶7 Second, we address the issue of whether the appellant showed good cause
for his filing delay. We agree with the administrative judge that the filing
deadline in this appeal was 30 days after the appellant received the April 23, 2012
final agency decision, i.e., approximately May 28, 2012. ID at 10; IAF, Tab 5 at
38-56; see 5 C.F.R. § 1201.154(b); see also Butler v. Department of Veterans
Affairs, 119 M.S.P.R. 112, ¶ 5 (2013) (documents placed in the mail are presumed
to be received in 5 days). Thus, the appellant’s February 25, 2014 Board appeal
was untimely by 21 months. Apart from his argument regarding 5 U.S.C.
§ 7702(f), discussed above, the appellant does not dispute this finding.
¶8 Rather, the appellant argues, as he did below, that his filing delay was
caused by his reasonable reliance on the EEOC administrative judge’s
consolidation order stating that he would receive further process from the EEOC
with respect to his removal complaint. PFR File, Tab 1 at 7-8, 10. We agree with
the appellant that the consolidation order implies that the EEOC would conduct a
hearing on all three of his complaints, including his removal complaint, and that a
reasonable person might be mislead by this order under some circumstances.
6
IAF, Tab 9, Exhibit 16; see Forst v. Office of Personnel Management,
97 M.S.P.R. 142, ¶ 7 (2004) (an appellant’s confusion may be taken into account
when determining whether there is good cause for an untimely filing). However,
we find that the appellant himself was the ultimate cause of any confusion
because the EEOC administrative judge’s order was based on affirmatively
misleading information that the appellant supplied. Specifically, the appellant
told the EEOC administrative judge that his removal complaint concerned a
notice of proposed removal, which is an action otherwise unappealable to the
Board and would not be a basis for a mixed case. Id., Exhibit 13 at 5-6; see
Lethridge v. U.S. Postal Service, 99 M.S.P.R. 675, ¶ 13 (2005) (the Board lacks
jurisdiction under 5 U.S.C. chapter 75 over adverse action proposals); 29 C.F.R.
§ 1614.302(a)(1) (a mixed case complaint is a complaint of employment
discrimination filed with a federal agency related to or stemming from an action
that can be appealed to the Board). In addition, the appellant had already been
informed twice before he filed his motion to consolidate that there would be no
further proceedings before the EEOC after the agency issued its final decision.
IAF, Tab 5 at 59-60, Tab 9, Exhibit 11. There is no evidence that the EEOC
administrative judge became aware of the true nature of the appellant’s complaint
until the agency so informed her on August 26, 2013. IAF, Tab 9, Exhibit 17 at
8. Thus, we find no basis to conclude that the EEOC administrative judge misled
the appellant; rather, it was the appellant who misled the EEOC administrative
judge. We find that confusion that the appellant himself caused does not
constitute good cause for his delayed filing in this appeal. See Alonzo v.
Department of the Air Force, 4 M.S.P.R. 180, 184 (1980) (to establish good cause
for the untimely filing, a party must show that he exercised due diligence or
ordinary prudence under the particular circumstances of the case). Considering
that the appellant was represented by an attorney throughout this process, that
notwithstanding the consolidation order, he was on clear notice of his options for
appealing the final agency decision and the time limits for doing so, and that the
7
21-month filing delay was excessive, we agree with the administrative judge that
the appellant has not shown good cause to waive the filing deadline. ID at 11-12;
see generally Moorman v. Department of the Army, 68 M.S.P.R. 60, 62-63 (1995)
(factors that the Board will consider in determining whether there is good cause
to waive a filing deadline), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
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
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.
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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. See 42 U.S.C. § 2000e5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.