Fanny Mak v. Tennessee Valley Authority ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FANNY MAK, DOCKET NUMBER
Appellant, AT-0351-14-0767-I-1
v.
TENNESSEE VALLEY AUTHORITY, DATE: March 16, 2016
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Floyd Kilpatrick, Chattanooga, Tennessee, for the appellant.
John E. Slater, Knoxville, Tennessee, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s action separating her from Federal service by reduction in
force (RIF). For the reasons discussed below, we GRANT the appellant’s
petition for review, VACATE the initial decision, and REMAND the case to the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Atlanta Regional Office for further adjudication in accordance with this Remand
Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant filed an appeal with the Board challenging the agency’s
action separating her from Federal service by RIF, effective June 16, 2014.
Initial Appeal File (IAF), Tab 1, Tab 4 at 28-30. On August 4, 2015, the
administrative judge issued an initial decision based on the written record 2
affirming the agency’s action. IAF, Tab 19, Initial Decision (ID). She found
that: (1) the agency invoked the RIF regulations for a legitimate reason, and
properly applied them as to the appellant’s competitive level and competitive
area; and (2) as an excepted-service employee, the appellant did not have
assignment rights upon her release from her competitive level. ID at 2-7.
¶3 The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. She challenges the validity of the RIF action,
arguing that it was motivated by discrimination based on her race and age. Id.
at 3. The agency filed a response in opposition to the petition for review, to
which the appellant did not reply. PFR File, Tab 4. It argues that the appellant’s
petition for review was untimely filed and that she has not shown good cause for
her filing delay. Id. at 5-7. It further argues that the appellant’s discrimination
claims should not be considered because she did not timely raise them below. Id.
at 7-9.
The appellant’s petition for review was untimely filed, but she has established
good cause for her filing delay.
¶4 The administrative judge correctly advised the parties that the initial
decision would become final on September 8, 2015, unless a petition for review
was filed by that date. ID at 7; see 5 C.F.R. § 1201.114(e). The appellant’s
2
The appellant declined a hearing on her initial appeal form. IAF, Tab 1 at 3. She
subsequently expressed her desire for a hearing, but thereafter withdrew that request
during the close-of-record conference. IAF, Tab 7 at 3, Tab 12 at 1.
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petition for review was postmarked September 9, 2015. PFR File, Tab 1 at 12.
Under the Board’s regulations, the date of filing by mail is determined by the
postmark date. 5 C.F.R. § 1201.4(l). Accordingly, it appears that her petition
for review was filed 1 day late.
¶5 The appellant argues that her petition was timely filed. PFR File, Tab 3
at 1. Mr. Kilpatrick, the individual whom the appellant has designated on review
to represent her, has provided a sworn statement that the administrative judge
contacted him by telephone on August 3, 2015, and requested that he submit a
designation of representative form signed by the appellant. PFR File, Tab 1 at 1,
Tab 3 at 1, 3. He states that he had the appellant sign a designation form on the
same day and that he and the appellant “sent that [form] to the Atlanta Regional
Office.” PFR File, Tab 3 at 1. He asserts that, after doing so, he did not hear
from the administrative judge. Id. He claims that he did not receive a copy of
the initial decision until the appellant provided it to him on August 12, 2015. Id.The appellant contends that her petition for review was timely filed based on the
date Mr. Kilpatrick received the initial decision. Id.¶6 The appellant’s claim regarding when Mr. Kilpatrick received the initial
decision does not establish that her petition for review was timely filed. The
Board’s regulations plainly state that, if an appellant is represented, the deadline
for filing a petition for review runs from either her or her representative’s receipt
of the initial decision, whichever comes first. 5 C.F.R. § 1201.114(e). The
appellant was registered as an e-filer and therefore is deemed to have received
the initial decision on August 4, 2015, the date it was sent to her by electronic
mail. IAF, Tab 1 at 3, Tab 20; see 5 C.F.R. § 1201.14(m)(2). Thus, the deadline
for filing, which began to run from the appellant’s receipt of the initial decision
on August 4, 2015, was September 8, 2015. See 5 C.F.R. § 1201.114(e).
Therefore, we find that the petition for review was untimely filed.
¶7 Where a petition for review is untimely filed, the Board will waive the time
limit for filing if the appellant shows good cause for her filing delay. Miller v.
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Department of the Army, 112 M.S.P.R. 689, ¶ 13 (2009); 5 C.F.R. § 1201.114(g).
In determining whether an appellant has shown good cause, the Board may
consider several nonexclusive factors, including: the length of the delay;
whether the appellant was notified of the time limit or was otherwise aware of it;
the existence of circumstances beyond the control of the appellant that affected
her ability to comply with the time limits; the degree to which negligence by the
appellant has been shown to be present or absent; circumstances that show that
any neglect involved is excusable neglect; a showing of unavoidable casualty or
misfortune; and the extent and nature of the prejudice to the agency that would
result from waiver of the time limit. Barnes v. Merit Systems Protection
Board, 625 F. App’x 996, 999 (Fed. Cir. 2015) (citing Herring v. Merit Systems
Protection Board, 778 F.3d 1011, 1013-14 (Fed. Cir. 2015) (finding good cause
for a 10-day delay)); Miller, 112 M.S.P.R. 689, ¶ 13. The Board may find good
cause for an appellant’s untimely filing of a petition for review if her properly
designated representative did not timely receive a copy of the initial decision.
See Channell v. U.S. Postal Service, 76 M.S.P.R. 630, 631-33 (1997)
(determining that it was improper to penalize the appellant for failing to respond
to a timeliness order that was not served on his designated representative);
Farrell v. U.S. Postal Service, 70 M.S.P.R. 564, 565-67 (1996) (finding good
cause to excuse a 7-day delay in filing a motion for attorney fees where the
appellant’s attorney filed the fee motion on the same day he learned the initial
decision had been issued).
¶8 There is no evidence in the record to contradict Mr. Kilpatrick’s sworn
statement that the administrative judge instructed him to submit a designation of
representative form and that he promptly complied with that instruction. He then
acted diligently by filing the appellant’s petition for review within 30 days of his
receipt of the initial decision. Although the filing was 1 day beyond the
deadline, this delay was minimal. See Barnes, 625 F. App’x at 999 (finding that
the Board should have excused a 1-day delay in filing a petition for review
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because the delay was minimal and was due to the appellant’s counsel’s attempts
to comply with the Board’s length of pleading limitations). Further, we discern
no prejudice to the agency because it received an opportunity to respond to the
appellant’s petition for review. PFR File, Tab 4. Accordingly, given the unique
circumstances in this case, we find that the appellant has established good cause
for her filing delay.
We remand this appeal for the administrative judge to address the appellant’s
discrimination claims.
¶9 In January 2015, Mr. Kilpatrick raised claims of race and age discrimination
on the appellant’s behalf and requested a hearing regarding those claims. 3 IAF,
Tab 15. Although the administrative judge acknowledged receipt of that
pleading in the initial decision, ID at 5 n.2, she did not adjudicate the appellant’s
discrimination claims. See generally ID. On review, the appellant asserts that
this was error. PFR File, Tab 1 at 3. We agree.
¶10 The administrative judge should have apprised the appellant of the
applicable burdens of proving her discrimination claims, as well as the kind of
evidence she was required to produce to meet her burden. See Wynn v. U.S.
Postal Service, 115 M.S.P.R. 146, ¶ 13 (2010). Because she failed to do so, we
must remand this appeal for her to afford the parties such notice and an
opportunity to submit evidence and argument under the proper standard. See id.;
Abakan v. Department of Transportation, 98 M.S.P.R. 662, ¶¶ 7-9 (2005)
(remanding an appeal of a RIF action because the administrative judge failed to
examine the appellant’s discrimination claims). The administrative judge should
3
As the agency points out, the appellant did not raise these claims prior to the end of
the close-of-record conference in September 2014. See 5 C.F.R. § 1201.24(b)
(requiring an appellant to show good cause for raising claims or defenses for the first
time after the conferences defining the issues in the case); IAF, Tab 12; PFR File,
Tab 4 at 8. However, because the administrative judge later reopened the record in May
2015, albeit for a limited purpose, IAF, Tab 16, she should have adjudicated the
appellant’s discrimination claims, which relate directly to the agency’s burden of proof
in this appeal.
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determine whether the appellant wishes to have a hearing regarding her
discrimination claims and, if so, hold the requested hearing. See Savage v.
Department of the Army, 122 M.S.P.R. 612, ¶¶ 45-46 (2015). She thereafter
must address the merits of those claims, as they relate to the agency’s RIF
action, in a new initial decision. See Abakan, 98 M.S.P.R. 662, ¶ 10; Spithaler v.
Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980) (holding that an
initial decision must identify all material issues of fact and law, summarize the
evidence, resolve issues of credibility, and include the administrative judge’s
conclusions of law and his legal reasoning, as well as the authorities on which
that reasoning rests).
ORDER
For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.