Orlandis Dunn v. United States Postal Service ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ORLANDIS M. DUNN, DOCKET NUMBER
Appellant, CH-0752-16-0505-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: February 9, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
David W. Neel, Esquire, Shaker Heights, Ohio, for the appellant.
Raymond Wacker, South Euclid, Ohio, for the appellant.
Miriam Dole, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his mixed-case removal appeal as untimely. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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 affe cted the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to supplement the administrative judge’s analysis on the
question of whether the appellant made contact with an equal employment
opportunity (EEO) representative within the regulatory timeframe, we AFFIRM
the initial decision.
BACKGROUND
¶2 The appellant, a preference-eligible Carrier Technician with the agency in
Cleveland, Ohio, was removed from his position for failure to maintain a regular
work schedule, effective March 13, 2015. Initial Appeal File (IAF), Tab 7
at 39-42, 60. Believing that his removal was based on disability discrimination,
the appellant contacted the agency’s EEO office on April 21, 2015, but he did not
engage in any further process related to filing a formal complaint of
discrimination at that time. IAF, Tab 27 at 8. He later filed a grievance, which
was denied by the arbitrator as untimely filed. IAF, Tab 7 at 62. After the
issuance of the arbitrator’s decision on August 20, 2015, the appellant again
contacted an EEO counselor with the agency on August 25, 2015, alleging
disability discrimination over his removal. Id. at 74. He advised the EEO office
that the “date of incident” was August 20, 2015—the date of the arbitration
decision—as opposed to March 13, 2015— the effective date of his removal. Id.3
The appellant and the agency engaged in the appropriate process to investigate a
complaint of discrimination, and on June 10, 2016, the agency issued a final
decision finding no discrimination. Id. at 18-34. On July 20, 2016, the appellant
filed the instant appeal with the Board. IAF, Tab 1.
¶3 The administrative judge issued an order on timeliness requiring the
appellant to show that his appeal to the Board was timely filed. IAF, Tab 3. Both
parties responded, and the administrative judge scheduled a hearing on the
question of timeliness. IAF, Tabs 5, 7, 14, 17, 19. In addition, the agency also
raised the question of the timeliness of the appellant’s contact with an agency
EEO counselor in its narrative response and motion to dismiss and in its
prehearing submission. IAF, Tabs 7, 22. After reviewing the pleadings and
holding two telephonic status conferences, IAF, Tabs 13, 20, the administrative
judge issued an order requiring the parties to file addi tional pleadings on the
question of whether the appellant’s contact with the agency’s EEO counselor was
timely, as it bore on the ultimate timeliness of the appellant’s appeal, IAF, Tab 24
at 1-2 (citing 5 C.F.R. § 1201.154(b); Landingham v. U.S. Postal Service,
81 M.S.P.R. 77, ¶ 10 (1999)). The administrative judge canceled the scheduled
hearing to allow more time for the parties to submit additional pleadings. IAF,
Tab 24 at 2.
¶4 Without holding a hearing, the administrative judge issued an initial
decision. IAF, Tab 29, Initial Decision (ID). He acknowledged the appellant’s
contact with the EEO counselor on April 21, 2015, but noted that the appellant
failed to provide any of the agency’s requested information, resulting in the
agency closing his request for counseling. ID at 6. The administrative judge
determined that the actual date of the appellant’s initial contact with the agency’s
EEO counselor was August 25, 2015. ID at 3. Because this date exceeded the
time limit imposed by 29 C.F.R. § 614.105(a)(1), which requires the appellant to
make initial contact with an EEO counselor within 45 days of the discriminatory
action, the administrative judge found that the appellant’s formal complaint of
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discrimination was untimely. ID at 3-4. He also found that the appellant failed to
meet any of the permissible reasons for extending the 45 -day deadline, and he
dismissed the appeal as untimely. ID at 3-7 (citing 29 C.F.R. § 1614.105(a)(2)).
¶5 The appellant has filed a petition for review arguing that he was entitled to
a hearing on the question of timeliness and that , contrary to the administrative
judge’s finding, he made timely contact with an EEO counselor. Petition for
Review (PFR) File, Tab 1 at 4. The agency has filed a response to the appellant’s
petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 When an appellant has been subjected to an action appealable to the Board
and raises issues of prohibited discrimination, he may file a timely formal
complaint of discrimination with the agency or a timely appeal with the Board.
Hess v. U.S. Postal Service, 124 M.S.P.R. 40, ¶ 11 (2016); 5 C.F.R.
§ 1201.154(a). When, as in this case, an appellant elects to file a complaint of
discrimination, it must comport with the regulatory requirements set forth in
29 C.F.R. §§ 1614.105-1614.106. These regulations require a “pre-complaint
process.” 29 C.F.R. § 1614.105. Part of that process requires an aggrieved
person to make initial contact with an EEO counselor within 45 days of the date
of the matter alleged to be discriminatory or, in the case of a personnel action,
within 45 days of the effective date of the action. Conover v. Department of the
Army, 78 M.S.P.R. 605, 613-14 (1998); 29 C.F.R. § 1614.105(a)(1). The
regulations further discuss the pre-complaint steps that must be taken by the
agency and the appellant, which ultimately determine the date by which a formal
complaint of discrimination must be filed with the agency. 29 C.F.R.
§§ 1614.105-1614.106.
¶7 After filing a timely formal complaint, the appellant may file an appeal with
the Board within 30 days of his receipt of the agency’s final decision or, if the
agency failed to resolve his complaint within 120 days, any time after those
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120 days. 5 C.F.R. § 1201.154(b). Thus, to gain the right to appeal to the Board
in a mixed case in which the appellant elected to proceed with the agency’s
internal EEO process, both an appellant’s formal complaint of discrimination to
the agency and his appeal to the Board must be timely filed. 5 C.F.R.
§ 1201.154(b); 29 C.F.R. § 1614.106(b). The appellant bears the burden of proof,
by a preponderance of the evidence, on the issue of timeliness. See Mauldin v.
U.S. Postal Service, 115 M.S.P.R. 513, ¶5 (2013); 5 C.F.R.
§ 1201.56(b)(2)(i)(B).
¶8 In the initial decision, the administrative judge found that the appellant’s
complaint to the agency was untimely under 29 C.F.R. § 1614.105(a), thereby
depriving the appellant of his right to appeal his removal to the Board. ID at 4.
This finding was based on the administrative judge’s determination that the
appellant made initial contact with an agency EEO counselor on August 25, 2015.
ID at 1-2. Although we agree with the administrative judge’s ultimate conclusion
that the appellant’s EEO activity prior to his Board appeal was untimely, we
modify his analysis to consider in greater detail the appellant’s April 21, 2015
contact with an EEO counselor.
¶9 The plain language of 29 C.F.R. § 1614.105(a)(1) requires only that an
aggrieved person “initiate contact” with an EEO counselor within 45 days of the
effective date of the agency action. Id. On review, the appellant argues that he
initially contacted the EEO counselor on April 21, 2015, which would place him
within the 45-day time limit mandated by the regulation. PFR File, Tab 1 at 4.
To support this argument, the appellant refers to a letter from the agency’s EEO
contact center. IAF, Tab 27 at 8. Although the letter ultimately closes the
appellant’s request for counseling due to his failure to provide the requested
information, it reiterates the appellant’s initial contact date of April 21, 2015. Id.Thus, it appears that the appellant met the 45-day initial contact requirement set
forth in 29 C.F.R. § 1614.105(a)(1); see Lengerich v. Department of the Interior,
6
454 F.3d 1367, 1370 (Fed. Cir. 2006) (stating that a regulation should be
interpreted by its plain language).
¶10 Nonetheless, 5 C.F.R. § 1201.154, the regulation providing for Board
review in mixed-case appeals, requires the appellant to have filed a timely formal
complaint of discrimination with the agency. Because the appellant did not
continue with the pre-complaint process outlined in 29 C.F.R. § 1614.105, there
was no timely complaint filed, or any formal complaint at all, as a result of the
April 21, 2015 contact. IAF, Tab 27 at 8. Therefore, we find that, due to the
appellant’s own inaction, he failed to file a timely formal complaint of
discrimination and that, although the administrative judge relied on the
August 25, 2015 date as the date of initial contact, the ultimate dismissal for
untimeliness was proper.
¶11 Although it is not clear why the administrative judge disregarded the
April 21, 2015 contact, his reliance on August 25, 2015, as the initial contact date
is not entirely misplaced. ID at 6. In an EEO dispute resolution specialist’s
inquiry report, the date recorded for the initial contact with the EEO office is
August 25, 2015. IAF, Tab 7 at 74. Even if we determined, in the alternative,
that the date of the appellant’s initial contact was August 25, 2015, we would still
find the administrative judge’s dismissal for untimeliness to be proper.
¶12 Initial contact made on August 25, 2015, would exceed the 45-day limit
imposed by 29 C.F.R. § 1614.105(a)(1) by several months; however, the
regulation provides four permissible reasons for extending the 45-day deadline.
ID at 3-7 (citing 29 C.F.R. § 1614.105(a)(2)). One of those reasons is that,
despite due diligence, the appellant was prevented from making counselor
contact. 29 C.F.R. § 1614.105(a)(2). 2 The appellant has argued that after his
2
The administrative judge discussed the other possible reasons for extending the
deadline and found that none applied to the appellant. ID at 3 -7. These findings have
not been challenged on review, PFR File, Tab 1 at 4, and we find no reason to disturb
them here.
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removal an EEO counselor informed him that it would be more prudent to
proceed with a grievance before filing a formal complaint of discrimination with
the agency. IAF, Tab 27 at 6-7. Regardless of the veracity of this assertion, the
record is clear that in April 2015, the agency sent the appellant information to be
completed and returned in order to proceed with the pre-complaint process, and
the appellant did neither. 3 Id. at 8. Ultimately, it was his own inactions that
halted the first contact with an EEO counselor, not the agency’s alleged
prevention. Thus, we agree with the administrative judge’s conclusion that the
appellant failed to engage in basic due diligence as required by 29 C.F.R.
§ 1614.105(a)(2) to receive a waiver of the 45-day period. ID at 6.
¶13 The appellant also argues on review that the Board is required to defer to
the agency’s determination on the timeliness of a formal complaint of
discrimination. PFR File, Tab 1 at 4. He references a nonprecedential order
issued by the Board that remanded an appeal in which the initial decision rejected
an agency’s determination that the appellant’s EEO complaint was timely filed,
finding instead that the EEO complaint was untimely because the appellant did
not contact the agency’s EEO counselor within 45 days of the discriminatory act.
Id. (citing Portal v. Department of Labor, MSPB Docket No. DC-0752-14-0225-
I-1, Remand Order (Portal RO), ¶ 10 (Feb. 27, 2015)). We find the appellant’s
3
On review, the appellant argues that the administrative judge improperly made
credibility determinations concerning his assertions that an EEO counselor told him to
file a grievance before filing an EEO complaint. PFR File, Tab 1 at 4. He argues that
the administrative judge should have held a hearing to determine the credibility of his
claims. Id. The Board has held that when an appellant has requested a hearing in his
appeal and the administrative judge determines that there is a dispute of material facts
relating to timeliness, the appellant is entitled to a hearing on timeliness. Brown v. U.S.
Postal Service, 106 M.S.P.R. 12, ¶ 16 (2007). Here, the administrative judge found
there to be no disputed material facts, ID at 3, and we agree. We find the appellant’s
assertions regarding the conversations with an EEO counselor to be immaterial. Other
portions of the written record show that the agency’s actions, regardless of its alleged
statements, prove that it properly engaged in the pre-complaint process with the
appellant and that the appellant failed to engage in return. IAF, Tab 27 at 7. Therefore,
we agree with the administrative judge that there is no dispute of material fact, and we
find his decision on the written record to be proper. Brown, 106 M.S.P.R. 12, ¶ 16.
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reliance on Portal to be misplaced. In that case, the agency had mad e an explicit
determination on the question of timeliness, Portal RO, ¶ 5, and it is well settled
that the Board must defer to the employing agency’s determinations regarding the
timeliness of discrimination complaints, Cloutier v. U.S. Postal Service,
89 M.S.P.R. 411, ¶ 6 (2011).
¶14 In this case, however, there was no explicit determination on the question of
timeliness. IAF, Tab 7 at 18-34. The appellant provided inaccurate information
to the EEO counselor by claiming that the date of the discriminatory action was
August 20, 2015, the date of the arbitrator’s grievance decision, rather than
March 13, 2015, the effective date of his removal. Id. at 74. Given that the
initial contact date recorded on the relevant form was August 25, 2015—five days
after the arbitrator’s decision—the EEO counselor would have had no reason to
question the timeliness of the contact. Further, both the Board and the Equal
Employment Opportunity Commission have indicated that an agency’s acceptance
and investigation of a complaint with no finding on the issue of timelin ess is not a
waiver of the time limit for initiating contact with an EEO counselor.
Landingham, 81 M.S.P.R. 77, ¶ 10; Ziman v. U.S. Postal Service, EEOC Appeal
No. 01842595, 1986 WL 635226 at 8 (July 23, 1986). Because we have no
timeliness determination to which to defer, and in the absence of such a
determination, the 45-day time limit is not considered to be waived, we find the
appellant’s argument to be meritless.
¶15 Regardless of whether the appellant’s initial contact date with an agency
EEO counselor was April 21, 2015, or August 25, 2015, we find that the appellant
failed to file a timely formal complaint of discrimination. Accordingly, we affirm
the initial decision as modified herein.
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NOTICE OF APPEAL RIGHTS 4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
4
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.
10
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:
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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decis ion 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
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discrimination based on race, color, religion, sex, national origin, or a disa bling
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. § 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
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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
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. 5 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
5
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.
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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.