UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

CHRISTINE L. SEED,

Appellant,

v.

DEPARTMENT OF ENERGY,

Agency.

DOCKET NUMBER

SF-0432-12-0736-I-1

DATE: August 15, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Franklyn J. Fragomene, Jr., Esquire, Washington, D.C., for the appellant.

Donna A. Oden-Orr, Esquire, Portland, Oregon, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The agency has filed a petition for review of the initial decision, which 

reversed its action removing the appellant under 5 U.S.C. chapter 43. 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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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). 

After fully considering the filings in this appeal, and based on the following 

points and authorities, 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).

¶2 The agency removed the appellant from her GS-6 Library Technician 

position, effective April 29, 2011, under chapter 43. Initial Appeal File (IAF), 

Tab 9 at 162-68. The agency determined, at the conclusion of the appellant’s 

90-day Performance Improvement Plan (PIP), that her performance did not rise to 

the level of “meets expectations” in two Critical Elements: (1) Maintain 

Bonneville Power Administration (BPA) Library Collection; and (2) Effective 

Teamwork and Communication. 2

 Id. at 4-10, 163-68.

¶3 The appellant timely3 filed an appeal with the Board regarding her removal 

and requested a hearing. IAF, Tab 1. She alleged that: (1) the PIP was not 

properly drafted with measurable outcomes and failed to take into consideration 

her need for a reasonable accommodation; and (2) her removal was motivated by 

age and disability discrimination. Id. After holding a hearing, the administrative 

 2 The appellant’s performance plan specified only three performance levels: 

unacceptable, meets expectations, and significantly exceeds expectations. IAF, Tab 9 

at 37-46.

3 The appellant first filed a formal equal employment opportunity complaint, and the 

final agency decision in that matter was issued on July 23, 2012. IAF, Tab 1 at 7, 39.
3

judge issued an initial decision reversing the agency’s removal action. IAF, 

Tab 21, Initial Decision (ID). The administrative judge found that the agency’s 

performance standards were valid but that the agency failed to establish by 

substantial evidence that the appellant’s performance during the PIP was 

unacceptable under those standards in either Critical Element at issue. ID 

at 8-22. The administrative judge also found that the appellant failed to prove her 

affirmative defenses of age and disability discrimination. ID at 22-29.

¶4 The agency has filed a petition for review, arguing that it proved by 

substantial evidence that the appellant failed both Critical Elements at issue. 

Petition for Review (PFR) File, Tab 1. The appellant filed a response in 

opposition and the agency submitted a reply. PFR File, Tabs 3-4.

¶5 As an initial matter, in its petition for review, the agency repeatedly argues

that proof of one “specification,” i.e., one instance of the appellant failing to 

properly complete any one task assigned under one of the required Improvements 

set forth in the PIP, is sufficient to sustain its “charge,” i.e., failure of a required 

Improvement under the PIP. See, e.g., PFR File, Tab 1 at 17-18. According to 

the agency, failure of any one required Improvement under the PIP, all of which 

were “important” to the Critical Elements, constitutes failure of a Critical 

Element. See, e.g., id.

¶6 The agency seems to be applying a 5 U.S.C. chapter 75 analysis, although it 

brought its action under chapter 43. It is true that, under chapter 75, where more 

than one event or factual specification supports a single charge, proof of one or 

more, but not all, of the supporting specifications is sufficient to sustain the 

charge. Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 

1990). Under chapter 43, however, where an employee’s performance is 

unacceptable on one or more, but not all, components of a Critical Element, the 

agency must show by substantial evidence that his performance warranted an 

unacceptable rating on the element as a whole. Lee v. Environmental Protection 

Agency, 115 M.S.P.R. 533, ¶ 36 (2010). Applying the agency’s logic, if the 
4

appellant did not properly complete even one task assigned during the PIP, 

regardless of the task’s relation to her position and the Critical Elements as a 

whole, she would fail an Improvement and, therefore, a Critical Element, thus 

justifying her removal. We reject this argument. It is not sufficient for the 

agency to assert that the appellant failed a Critical Element because of her failure 

to properly complete a single task, without providing any explanation of how the 

task itself, not simply the corresponding Improvement, warranted failure of the 

Critical Element as a whole if not done properly.

¶7 We also reject the agency’s argument that the administrative judge erred in 

finding that the agency “did not communicate to the appellant the standard of 

measure for evaluating her assignments on any particular Improvement, or 

whether difficulty in one particular area or task would preclude a finding that she 

had successfully completed the PIP.” PFR File, Tab 1 at 18; ID at 15. Although 

the agency stated that the appellant must demonstrate the required Improvements 

in order for her performance to meet expectations in the Critical Elements, it did 

not inform her that her failure of just one task assigned under any Improvement 

would result in her failure of the PIP. We also note that the PIP did not identify 

which Improvements related to which Critical Element. IAF, Tab 9 at 175-76.

Critical Element 1

¶8 The agency found that the appellant failed Critical Element 1 (Maintaining 

BPA Library Collection) because she did not satisfy two required Improvements 

set forth in the PIP. IAF, Tab 9 at 4-6. Specifically, the appellant was instructed 

to: (1) dispose of library materials within a few days of being instructed to do so, 

rather than hoarding them; and (2) perform the basic functions of her position in a 

largely independent manner. Id. at 175. Concerning hoarding materials, the 

agency found that the appellant removed blank, but unusable, patron survey cards 

from the recycling bin and placed them in a stack with usable survey cards. Id.

at 4-5. As to performing her duties in an independent manner, the agency found 
5

that the appellant failed to follow written instructions for: (1) weeding 

newsletters from the library collection, in that she discarded newsletters she was 

instructed to retain, resulting in a loss of approximately $14,000 worth of 

materials; and (2) completing a shelf shift, which involved condensing library 

materials onto fewer shelves, because she had to be reminded several times to fill 

the top shelves for space reasons. 4

 Id. at 5-6.

¶9 The administrative judge found that the appellant’s retrieving survey cards 

from the recycling bin did not indicate that she was hoarding library materials of 

which she had been instructed to dispose because: (1) the appellant’s supervisor 

did not instruct her to dispose of the cards; (2) there was no evidence that the 

appellant knew that her supervisor had discarded the cards because they were 

unusable; and (3) this one instance of the appellant retrieving something from the 

recycling bin did not constitute hoarding. ID at 10-11. The administrative judge 

found that, although the appellant began the shelf shift project leaving the top 

shelves empty, this was only because the top shelves had always been left empty 

during previous shelf shifts and that the appellant correctly and timely completed 

the project after her supervisor provided her with the new instruction to fill the 

top shelves. ID at 12-13. Thus, the administrative judge concluded that the 

appellant completed the shelf shift project in a largely independent manner. ID 

 4 The agency also found, regarding Critical Element 1, that the appellant: (1) failed to 

follow library retention patterns by unnecessarily retaining an extra year’s worth of 

various publications; (2) failed to timely replace an ink toner cartridge as instructed, 

including failing to have extra cartridges in stock at the library; and (3) informed her 

supervisor that she would keep surplus toner in her work area, which was contrary to an 

established procedure of keeping printer supplies in a central supply cabinet. IAF, 

Tab 9 at 5-6. The administrative judge found that these examples were not indicative of 

poor performance in Critical Element 1 because: (1) the appellant retained materials as 

approved by her former supervisors for 19 years with no change in instructions; 

(2) maintaining office supplies, including toner, was listed in the appellant’s 

performance plan under a separate, noncritical element; and (3) replacing toner 

correctly and efficiently has little to do with maintaining a library collection. ID 

at 13-15. On review, the agency does not challenge these findings, as they relate to 

Critical Element 1.
6

at 12-13. The administrative judge also found that the appellant improperly 

discarded newsletters when performing the newsletter weeding task, as specified 

in the agency’s proposal notice. ID at 11-12. The administrative judge 

concluded that, notwithstanding the appellant’s serious error in the newsletter 

weeding project, the agency failed to prove by substantial evidence that the 

appellant’s performance in Critical Element 1 was unacceptable as a whole. ID 

at 15-16.

¶10 On review, the agency disagrees with the administrative judge’s findings

concerning the survey cards, arguing that it proved the “essence of the charge,” in 

that the appellant’s retrieval of the cards from the recycling bin was contrary to 

its desire for her to cease hoarding materials. PFR File, Tab 1 at 25. We 

disagree. The examples listed in the PIP indicate that the agency was concerned 

with the appellant’s alleged hoarding because it could result in keeping obsolete

library materials and having inadequate space to grow the library collection with 

new materials. See IAF, Tab 9 at 171-72. We fail to see how the appellant’s 

retrieval of the survey cards, which are not part of the library’s collection, is 

contrary to these goals. We also note that the appellant’s supervisor testified that, 

with the exception of three incidents, only one of which was listed in the proposal 

notice, the appellant disposed of materials “on a regular basis” during the PIP 

period. 5

 Hearing Compact Disc (HCD 1) (Jan. 22. 2013) (supervisor’s 

 5 The agency contends that the administrative judge erred in failing to consider the two

additional examples of hoarding, which were not listed in its proposal notice, but were 

discussed with the appellant during the PIP period. PFR File, Tab 1 at 22-23; see IAF, 

Tab 9 at 13, 34. However, the administrative judge’s failure to mention all of the 

evidence of record does not mean that she did not consider it in reaching her decision. 

See Marques v. Department of Health & Human Services, 22 M.S.P.R. 129, 132 (1984), 

aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). Notably, the agency does not contend 

that it was precluded from introducing any evidence. In any event, even if the 

administrative judge failed to consider these additional instances, we discern no harm 

because they would not alter the outcome in this matter. See Panter v. Department of 

the Air Force, 22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not prejudicial 

to a party’s substantive rights provides no basis for reversal of an initial decision).
7

testimony). Therefore, we discern no basis to disturb the administrative judge’s 

analysis.

¶11 The agency argues that the appellant’s performance on the shelf shift 

project was not acceptable because she did not complete it largely independently, 

in that her supervisor had to tell her several times to fill the top shelves. PFR 

File, Tab 1 at 26-28. There does not appear to be any dispute regarding the 

appellant’s repeated requests for clarification. However, the appellant’s 

supervisor testified that the instruction to fill the top shelves was a departure from 

the way shelf shifts had generally been done in the past and that this particular 

shelf shift was “very unusual” because it involved removing three stacks and 

condensing the entire collection, which is not done regularly during a shelf shift. 

HCD 1 (supervisor’s testimony). We find that the appellant’s repeated questions 

about a new instruction regarding a basic function of her position do not indicate 

that she failed to complete a basic function of her position in a largely 

independent manner. We note that, before beginning the project, the appellant 

sent her supervisor an e-mail detailing what she believed she must do to properly 

complete the project. IAF, Tab 9 at 22. The appellant’s supervisor responded 

with instructions that, with the exception of the issue regarding whether to fill the 

top shelves, essentially mirrored the parameters the appellant had set forth. Id. 

This suggests that, other than the new instruction, the appellant understood how 

to perform the shelf shift. Indeed, after the appellant completed the project, her 

supervisor sent her an e-mail stating that the “end result of this shift look[ed] 

excellent.” Id. at 28.

¶12 The agency also contends, regarding the shelf shift, that the administrative 

judge misconstrued its “charge” (Improvement 4), in that she improperly inserted 

a “temporal element” when she considered that the appellant completed the 

project successfully by the deadline. PFR File, Tab 1 at 26, 28. We find this 

argument to be without merit. Again, this is not a chapter 75 case involving 

charges and elements of proof. In any event, we discern no error in the 
8

administrative judge’s referencing the deadline because, regardless of whether 

Improvement 4 included a temporal element, the appellant’s supervisor set a 

deadline for her to complete the project.

¶13 The agency further argues that the administrative judge’s finding that the 

appellant committed a serious error in discarding numerous newsletters contrary 

to her supervisor’s instructions is sufficient to find that she failed Critical 

Element 1. Id. at 17-18, 21. In finding that the appellant’s performance on the 

newsletter weeding project was not sufficient to find that her performance was 

unacceptable in Critical Element 1 as a whole, the administrative judge noted 

that, as to Critical Element 1, the appellant’s supervisor “seemed most concerned 

with correcting the appellant’s ‘hoarding’ than any other performance 

deficiency.” ID at 15. The agency agrees with this finding. PFR File, Tab 1 

at 24. The agency does not explain why, if the appellant’s supervisor was most 

concerned with her alleged hoarding under Critical Element 1, her improper 

discarding of certain newsletters warrants a finding that she failed Critical 

Element 1 as a whole. Rather, the agency reiterates the seriousness of the error, 

which the administrative judge clearly considered in reaching her decision. See

PFR File, Tab 1 at 20-21; see also ID at 15.

Critical Element 2

¶14 The agency found that the appellant failed Critical Element 2 (Effective 

Teamwork and Communication) because she did not satisfy Improvements 3, 5, 

and 6 set forth in the PIP. IAF, Tab 9 at 6-8. Specifically, the appellant was 

instructed to: (1) “follow instructions regularly the first time,” with clarification 

available “when first given instructions” (Improvement 3); (2) “demonstrate 

attention to detail, alertness, and focus,” including using effective communication 

skills, “following instructions correctly the first time, paying attention to details 

in [her] work, and completing tasks fully and correctly” (Improvement 5); and 

(3) perform routine tasks that are a normal part of her position without being 
9

asked and show initiative and apply her extensive experience working in the 

library, and her 2 years of experience working with her current supervisor, to 

decide for herself the best course of action to take when given instructions or a 

task (Improvement 6). Id. at 175.

¶15 The agency found that the appellant failed to follow instructions the first 

time (Improvement 3) concerning the aforementioned newsletter weeding and 

shelf shift projects, as well as when she: (1) failed to determine how to cancel 

the library’s subscription to Department of Energy publications (“SuDocs”); and 

(2) did not fully complete an assignment to record the beginning and ending call 

numbers and titles on each row for all library stacks because she admittedly failed 

to read her supervisor’s instructions all the way through. 6

 Id. at 6-8. The agency 

also found that the appellant did not show initiative (Improvement 6) because she 

took no action to correct the library’s receipt of extra copies of the Federal 

Register and the Congressional Record, which had been occurring for 14 years 

and 20 years, respectively. 7

 Id. at 8.

¶16 For the same reasons set forth under Critical Element 1, the administrative 

judge found that the appellant did not complete the newsletter weeding project 

properly but successfully completed the shelf shift project. ID at 16. The 

administrative judge found that the appellant attempted to find how to cancel the 

 6 The proposing official also noted that the appellant put a publication request in the 

wrong mailbox and improperly completed an assignment to transfer her handwritten 

Code of Federal Regulations (CFR) records to a computer spreadsheet. IAF, Tab 9 

at 7-8. However, the deciding official credited the appellant’s claim that she properly 

completed the spreadsheet and found that the example of incorrectly placing a 

document in the wrong mailbox did not support a finding of unacceptable performance 

in Critical Element 2. Id. at 165.

7 The agency also found that the appellant did not demonstrate attention to detail, 

alertness, and focus because she: (1) forgot to cover the front desk during her 

coworker’s lunch break; and (2) kept a handwritten list of CFR check-ins, although she 

was required to keep the list updated electronically. Id. at 8. The administrative judge 

found that the agency failed to prove that the appellant failed to meet Improvement 5 

during the PIP. ID at 18-19. The agency does not challenge this finding on review. 

PFR File, Tab 1.
10

library’s SuDocs subscription and, therefore, followed instructions in that regard, 

notwithstanding the fact that she was unsuccessful in obtaining the information. 

ID at 16-17. The administrative judge also found that the appellant completed the 

call numbers project by the deadline after receiving clarification from her 

supervisor, as allowed under the Improvement. ID at 17-18. The administrative 

judge found that the appellant’s failure to take action regarding the library’s 

receipt of extra publication copies did not demonstrate unacceptable performance 

because the appellant had raised the issue with prior supervisors and had been 

instructed to continue as she had been; there was no evidence to support the 

appellant’s supervisor’s claim that the appellant was responsible for identifying 

wasted efforts in her GS-6 position; and the requirement to show initiative did not 

specify any particular task or action that the appellant was required to perform to 

demonstrate acceptable performance. ID at 20-21. Based on the foregoing, the 

administrative judge concluded that the agency did not prove by substantial 

evidence that the appellant’s performance in Critical Element 2 was unacceptable 

as a whole. ID at 22.

¶17 On review, the agency argues that the administrative judge erred in finding 

that the appellant met expectations in Critical Element 2 and that it failed to 

prove that the appellant did not satisfy Improvements 3 and 6. PFR File, Tab 1 

at 29-36. As to Improvement 3, the agency argues that: (1) the administrative 

judge improperly focused on whether the appellant completed the shelf shift 

project by the deadline, rather than whether she followed instructions the first 

time they were given; (2) the administrative judge’s finding that the appellant 

failed to properly complete the newsletter weeding project warrants a finding that 

she failed the Critical Element as a whole; (3) notwithstanding the fact that the 

appellant timely completed the call numbers project, her performance of the 

project was initially incomplete because she admittedly failed to fully read her 

supervisor’s instructions; and (4) the appellant’s failure to determine how to 

cancel the SuDocs subscription by the deadline her supervisor established 
11

constituted a failure to follow instructions. PFR File, Tab 1 at 29-32. We find 

these arguments to be without merit. 

¶18 Although the appellant failed to follow instructions regarding the shelf shift 

the first time, in that she asked several times for clarification as to whether she 

should fill the top shelves, the agency has failed to explain why the fact that the 

appellant asked for clarification regarding a new instruction constitutes complete 

failure of Critical Element 2. The agency similarly has failed to explain why the 

appellant’s performance on the call numbers project, which she completed fully 

and correctly by the deadline, warrants a finding that she failed Critical Element 2 

as a whole simply because she initially turned in an incomplete work product. 

We also discern no error in the administrative judge’s determination that,

notwithstanding the appellant’s failure to successfully locate the SuDocs 

information by the deadline, she complied with her supervisor’s instructions by 

attempting to locate the information. ID at 16-17. As to the newsletter weeding 

project, the agency’s mere disagreement with the administrative judge’s finding 

that the appellant’s performance was not deficient as a whole in Critical 

Element 2, notwithstanding this serious error, does not establish a basis for 

review. See Broughton v. Department of Health & Human 

Services, 33 M.S.P.R. 357, 359 (1987) (a petitioner’s mere disagreement with 

issues already raised and properly resolved by the administrative judge below 

does not establish a basis for review).

¶19 Regarding Improvement 6, the agency argues that: (1) it was error for the 

administrative judge to consider the appellant’s experience with past supervisors,

including a past performance rating, because the Improvement required the 

appellant to apply her experience working with her current supervisor and her 

past ratings are irrelevant to her performance during the PIP; (2) the appellant’s 

supervisor informed her that she should perform her duties in a manner that 

avoided waste and to bring wasteful practices to her supervisor’s attention; 

(3) the administrative judge’s finding that there was no showing that the 
12

appellant’s position required her to identify wasteful efforts misconstrued 

Improvement 6 because the Improvement did not require the appellant to identify 

waste, but, rather, the appellant’s failure to identify waste demonstrated her 

failure to show initiative; (4) the administrative judge’s finding that there was no 

evidence that the appellant initiated the wasteful practices is irrelevant to the 

charge because the agency did not allege that the appellant caused the problem; 

(5) the administrative judge erred in finding that Improvement 6 did not identify 

any specific task or action the appellant should take to perform acceptably under 

the Improvement; and (6) the administrative judge erred in finding that 

instructions in the PIP contradicted the agency’s assertions regarding the 

appellant’s performance under Improvement 6. PFR File, Tab 1 at 33-35.

¶20 We find unpersuasive the agency’s arguments regarding Improvement 6. 

Improvement 6 plainly stated that the appellant should apply her experience 

working with her current supervisor, as well as her “extensive experience working 

in the Library.” IAF, Tab 9 at 175. Thus, we discern no error in the 

administrative judge’s considering the appellant’s customary practices, which 

were based on instructions she had received from prior supervisors. Further, we 

find that it was proper for the administrative judge to reference the appellant’s 

past performance appraisal. Contrary to the agency’s assertions, the 

administrative judge did not rely upon the appellant’s past performance to 

conclude that she performed successfully during the PIP. Rather, the fact that the 

appellant was previously rated as significantly exceeding expectations in Critical 

Element 2, while using the same processes that the agency now finds 

objectionable, lends support to the appellant’s claim that she simply proceeded as 

sanctioned by her previous supervisors. See ID at 21. We also find it wholly 

relevant that the appellant’s supervisor admonished the appellant for “secondguess[ing] [her] decision to throw something out,” and stated that the appellant’s 

job is not “to perform ‘collection development’ and determine which documents 

are marked for disposal,” but, rather, “it is [the appellant’s] job to discard items 
13

when asked.” ID at 21; IAF, Tab 9 at 171-72. It is unreasonable for the agency 

to expect the appellant to show initiative by raising issues previous supervisors 

had already told her not to be concerned with, particularly when the PIP 

instructed her not to question supervisory decisions regarding the discarding of 

materials. 8

 Moreover, the record contains evidence of the appellant’s showing 

initiative several times during the PIP. IAF, Tab 9 at 18 (“You caught something 

nobody else noticed . . . This was a good catch.”), 28 (“I appreciated that you 

moved the newspapers from the back of the Library and incorporated them into 

the periodicals.”), 35 (“You have taken the initiative to weed the Congressional 

Records based on our microfiche. That is good!”).

¶21 Based on the foregoing, we AFFIRM the initial decision. 9

 The agency has 

not established, by substantial evidence, that the appellant’s performance was 

unacceptable in either Critical Element.

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 

 8 The agency argues that the administrative judge erred in failing to consider the 

deciding official’s conclusion, not mentioned in the proposal notice, that the appellant 

also showed a lack of initiative because she claimed that she questioned her 

supervisor’s instruction to discard periodicals as part of the weeding project but did not 

take any further action to ensure that it was appropriate to discard those materials. PFR 

File, Tab 1 at 33; see IAF, Tab 9 at 164. We reject this argument because, as 

previously explained, the administrative judge’s failure to mention all of the evidence 

of record does not mean that she did not consider it in reaching her decision. See

Marques, 22 M.S.P.R. at 132.

9 We have not reviewed the administrative judge’s findings concerning the appellant’s 

discrimination claims because neither party challenges them. However, because this is 

a mixed case, we are providing the appellant with mixed appeal rights.
14

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 

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 
15

prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) 

and 29 U.S.C. § 794a.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board