John D. Reed v. United States Postal Service ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN D. REED, DOCKET NUMBER
Appellant, CH-0752-15-0467-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: November 4, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Eli J. Turner, Lewis Center, Ohio, for the appellant.
Gina M. MacNeill, Philadelphia, Pennsylvania, 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
dismissed the appeal as untimely. 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
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 On May 20, 2015, the appellant appealed his removal from the position of
City Letter Carrier and requested a hearing. Initial Appeal File (IAF), Tab 1.
The appellant filed his appeal after the agency issued a final agency decision
(FAD) on his equal employment opportunity complaint regarding his removal
finding no discrimination. Id. The agency’s FAD is dated April 2, 2014. Id.
at 24.
¶3 Because the appellant filed his appeal over a year after the FAD was issued,
the administrative judge ordered the appellant to file evidence and argument
establishing the timeliness of his appeal or good cause for the delay. IAF, Tab 3.
The appellant did not respond to this order. IAF, Tab 7, Initial Decision at 4.
The administrative judge issued an initial decision, without holding a hearing,
dismissing the appellant’s appeal as untimely filed. Id.¶4 The appellant has filed a petition for review alleging that his appeal was
untimely because he did not receive the FAD. Petition for Review (PFR) File,
Tab 1. The appellant also explained that stress from being removed from his
position, combined with health, marital, and financial problems, may have
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contributed to him filing his appeal late. Id. The agency has filed a response in
opposition to the petition for review. PFR File, Tab 3.
¶5 The appellant was required to file his appeal within 30 days of the date he
or his representative received the agency’s final decision on the discrimination
complaint, whichever is earlier. Foley v. Department of Health & Human
Services, 84 M.S.P.R. 402, ¶ 5 (1999); 5 C.F.R. § 1201.154(b)(1). Under the
Board’s regulations, the appellant is deemed to have received the agency’s
decision if it was received by his designated representative. 5 C.F.R.
§ 1201.22(b)(3). If an appellant fails to timely submit his appeal, it will be
dismissed as untimely filed absent a showing of good cause for the filing delay.
5 C.F.R. § 1201.22(c).
¶6 To establish good cause for an untimely appeal, a party must show that he
exercised due diligence or ordinary prudence under the particular circumstances
of the case. Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980).
To determine if the appellant has shown good cause, the Board will consider the
length of the delay, the reasonableness of his excuse and his showing of due
diligence, whether he is proceeding pro se, and whether he has presented evidence
of the existence of circumstances beyond his control that affected his ability to
comply with the time limits or of unavoidable casualty or misfortune which
similarly shows a causal relationship to his inability to timely for his petition.
Moorman v. Department of the Army, 68 M.S.P.R. 60, 62-63 (1995), aff’d,
79 F.3d 1167 (Fed. Cir. 1996). The appellant bears the burden of proof with
regard to timeliness, which he must establish by preponderant evidence. 5 C.F.R.
§ 1201.56(b)(2)(i)(B).
¶7 According to the evidence produced by the agency, the appellant’s
representative received the FAD on April 5, 2014, and the appellant received it on
April 14, 2014. IAF, Tab 6, Subtabs 4c-4d. The FAD informed the appellant of
his appeal rights, the time limits for filing his appeal, and the Board’s address.
IAF, Tab 1 at 23-24. The appellant’s 1-year delay in filing his appeal is not
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minimal. See De La Cruz Espan v. Office of Personnel Management, 95 M.S.P.R.
403, ¶ 5 (2004) (finding that a 50-day filing delay was not minimal and did not
provide a basis for waiving the filing deadline).
¶8 Although the appellant claims that he did not receive the FAD despite the
agency’s evidence confirming delivery, he has not offered any evidence or
argument regarding whether his representative received the FAD. Receipt by an
appellant’s designated representative constitutes constructive receipt by the
appellant. See Earls v. Department of the Treasury, 95 M.S.P.R. 391, ¶ 4, aff’d,
113 F. Appx 924 (2004); 5 C.F.R. § 1201.22(b)(3). The appellant has described
the stressors that may have contributed to his late filing, but it is well established
that general family difficulties do not constitute good cause for waiver of a filing
deadline. See Moorman, 68 M.S.P.R. at 63.
¶9 The Board will find good cause for waiver of its filing time limits if a party
demonstrates that he suffered from a physical or mental condition that affected
his ability to file on time. Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437
(1998). The appellant refers to several health problems that may have contributed
to his appeal being untimely. PFR File, Tab 1 at 3. To establish that an untimely
filing was the result of an illness, the party must (1) identify the time period
during which he suffered from the illness, (2) submit medical evidence showing
that he suffered from the alleged illness during that time period, and (3) explain
how the illness prevented him from timely filing his appeal or a request for an
extension of time. Lacy, 78 M.S.P.R. at 437. The administrative judge provided
the appellant with explicit information regarding the legal standard for
establishing good cause for an untimely filing based on an illness in her order on
timeliness. IAF, Tab 3 at 3-4. The appellant did not respond to that order and
has not submitted any evidence to support his contention that his medical
conditions may have contributed to his failure to timely file his appeal.
¶10 Accordingly, we find no basis on review to disturb the administrative
judge’s finding that the appeal is untimely without good cause shown.
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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.
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
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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. § 2000e-5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.