UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

CELESTINE GREEN THOMPSON,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

AT-0752-15-0303-I-1

DATE: July 22, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Celestine Green Thompson, Pompano Beach, Florida, pro se.

Kaleb M. Kasperson, Miami, Florida, 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 her removal appeal without prejudice as prematurely filed. 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 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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). For 

the reasons discussed below, we DENY the petition for review, AFFIRM the 

initial decision as MODIFIED by this Order, finding that the appellant’s appeal is 

now ripe for adjudication, and FORWARD the case to the regional office for 

docketing and adjudication as a refiled appeal. 

BACKGROUND

¶2 Effective January 24, 2015, the agency removed the appellant from her 

position of Mission Support Assistant based on the following charges: (1) willful 

refusal to comply with an instruction of a supervisor; and (2) conduct unbecoming 

a federal employee. Initial Appeal File (IAF), Tab 8 at 50-56. In its decision 

letter, the agency informed the appellant of her Board appeal rights and the 

procedures for filing a formal complaint of discrimination regarding the action 

with the agency. Id. at 52-54. The appellant filed a formal equal employment 

opportunity (EEO) complaint of discrimination with the agency on January 27, 

2015. Id. at 17-20. The next day, she sent the agency an email amending her 

EEO complaint to include her removal. Id. at 47-48. The agency accepted the 

appellant’s complaint for investigation. IAF, Tab 11 at 6-9.

¶3 On February 3, 2015, the appellant appealed her removal to the Board, 

raising claims of harmful error and retaliation for EEO activity and 

whistleblowing. IAF, Tab 1. Without holding a hearing, the administrative judge 

issued an initial decision dismissing the appeal without prejudice as prematurely 

filed. IAF, Tab 12, Initial Decision (ID) at 1, 7-8. He found that the appellant 
3

made an informed election to challenge her removal first via the agency’s EEO 

complaint process by amending her pending formal EEO complaint on 

January 28, 2015, prior to filing her Board appeal on February 3, 2015. ID at 5. 

Accordingly, the administrative judge held that her right to appeal her removal to 

the Board had not vested and found it prudent to dismiss the appeal without 

prejudice under 5 C.F.R. § 1201.154(c). ID at 5.

¶4 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 1. The agency has filed a response in opposition. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 Where an appellant has filed a timely formal complaint of discrimination 

with the agency prior to appealing to the Board, the right to appeal does not vest 

until either the agency issues a final decision on the discrimination complaint or 

120 days elapse from the date the discrimination complaint is filed with the 

agency. Price v. Department of Veterans Affairs, 105 M.S.P.R. 126, ¶ 9 (2007); 

5 C.F.R. § 1201.154(b). In her petition for review, the appellant contests the 

administrative judge’s finding that the email she sent on January 28, 2015,

amended her EEO complaint to include her removal. PFR File, Tab 1 at 4. 

However, she does not adequately explain why the challenged factual 

determination is incorrect or identify specific evidence in the record that 

demonstrates the error. See 5 C.F.R. § 1201.115(a). We agree with the 

administrative judge that the appellant made an informed election to challenge 

her removal through the EEO complaint process by sending the email before she 

filed her Board appeal, and that such election was binding. See ID at 4-7; see 

also Carey v. Department of the Interior, 103 M.S.P.R. 534, ¶ 11 (2006). 

Therefore, we find that the administrative judge properly dismissed her appeal 

without prejudice as prematurely filed under 5 C.F.R. § 1201.154(c).

¶6 The appellant further argues that the administrative judge erred by not 

providing her requested hearing. PFR File, Tab 1 at 3. An appellant’s right to a 
4

hearing generally is contingent on the appellant filing a timely appeal within the 

Board’s jurisdiction. See 5 C.F.R. § 1201.24(d). We find that the appellant had 

no entitlement to a hearing because her appeal was premature, and thus the Board 

lacked jurisdiction to adjudicate it. See 5 C.F.R. § 1201.154. Additionally, she

has not explained how any procedural error or abuse of discretion affected the 

outcome of the case. See 5 C.F.R. § 1201.115(c). The appellant also argues that 

the administrative judge was biased. PFR File, Tab 1 at 3. We find her broad 

allegation of bias insufficient to overcome the presumption of honesty and 

integrity that accompanies administrative adjudicators. See Oliver v. Department 

of Transportation, 1 M.S.P.R. 382, 386 (1980). Finally, we decline to discuss the 

appellant’s arguments on review addressing the merits of her appeal because they 

do not address the relevant jurisdictional issue. PFR File, Tab 1 at 4-5.

¶7 Although we agree with the administrative judge’s conclusion that the 

appellant’s appeal was premature, we modify the initial decision to find that the 

appellant’s appeal is now ripe for adjudication because 120 days have elapsed 

since she filed her amended EEO complaint. See Price, 105 M.S.P.R. 126, ¶ 10; 

see also 5 C.F.R. § 1201.154(b)(2). Therefore, we find it appropriate to forward 

the case to the regional office. See Price, 105 M.S.P.R. 126, ¶ 10.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS2

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 

 2 The administrative judge did not afford the appellant notice of appeals rights under the 

Whistleblower Protection Enhancement Act of 2012 or notice of her mixed-case right to 

appeal her discrimination claims to the Equal Employment Opportunity Commission 

and/or the United States District Court. We notify the appellant of her proper appeal 

rights in this Final Order. See Grimes v. U.S. Postal Service, 39 M.S.P.R. 183, 186-87 

(1988).
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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

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 
6

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 the United States Court of Appeals for the Federal Circuit or any 

court of appeals of competent jurisdiction to review this final decision. The court 

of appeals must receive your petition for review within 60 days after the 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 
7

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 your appeal to 

the 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 

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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board