UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ORLANDIS M. DUNN,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

CH-0752-16-0505-I-1

DATE: February 9, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 additional 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 
4

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 
5

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. 
7

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.
8

reliance on Portal to be misplaced. In that case, the agency had made 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 timeliness 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.
9

NOTICE OF APPEAL RIGHTS4

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 decision 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 
11

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. 

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 
12

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.5The 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. 
13

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:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board