UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DIANNA M. WORTHEY,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

DC-0432-15-0650-I-2

DATE: December 8, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Dianna M. Worthey, Woodbridge, Virginia, pro se.

Christina Knott, Esquire, Washington, D.C., 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 of her performance-based removal as untimely filed without 

good cause shown. 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 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 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).

BACKGROUND

¶2 Effective February 24, 2012, the agency removed the appellant for 

unacceptable performance. Initial Appeal File (IAF), Tab 6 at 40. The removal 

decision informed the appellant that she could file a grievance, a mixed-case 

equal employment opportunity (EEO) complaint, or a Board appeal and that 

whichever she filed first was an election to proceed in that forum. Id. at 45-46. 

She timely requested EEO counseling. Id. at 21; Refiled Appeal File (RAF),

Tab 8 at 13-14, 21-22. On April 19, 2012, the agency closed the appellant’s 

informal counseling and, according to its records, mailed her a notice of her right 

to file a formal complaint (NORF). RAF, Tab 8 at 13-19. The NORF further 

clarified her mixed-case appeal rights and informed her that she had 15 days from 

receipt to file a formal discrimination complaint. Id. at 13-16. 

¶3 The appellant did not contact the agency again regarding her EEO 

complaint until January 2015, at which time an EEO investigator informed the 

appellant that her case had been closed. RAF, Tab 6 at 30-45. On 

April 29, 2015, the agency again notified her, this time in writing, that it had 

closed her EEO case because she never filed a formal complaint. RAF, Tab 8 

at 20. There is no indication that the appellant responded to the agency’s letter.
3

¶4 The appellant filed her Board appeal on April 25, 2015, over 3 years after 

her removal. IAF, Tab 1. The agency filed a motion to dismiss the appeal as 

untimely filed. IAF, Tab 6 at 9-12, Tab 17. After the appellant requested an 

extension of time to respond, the administrative judge issued a timeliness order 

and dismissed the appeal without prejudice, subject to refiling by the appellant.2 

IAF, Tab 18 at 4, Tab 20, Initial Decision (ID) at 1-3. She timely refiled, and the 

matter was redocketed as the instant appeal. RAF, Tab 1, Tab 7.

¶5 In her refiled appeal, the appellant argued that the agency failed to notify 

her of her right to file a formal EEO complaint, which constituted good cause for 

the delay in filing her mixed-case Board appeal. RAF, Tab 6 at 3-4. She 

contended that she never received the NORF and challenged the sufficiency of the 

agency’s evidence of mailing and delivery.

3

 Id. She further attributed the delay 

to being confused about the mixed-case appeal process, as she was pro se. Id.

at 4. She also argued the merits of her appeal, including that her removal was 

discriminatory and in retaliation for whistleblowing.4 Id. at 2-5.

 

2

The appellant filed a petition for review of the initial decision dismissing her appeal 

without prejudice to the U.S. Court of Appeals for the Federal Circuit. The court 

dismissed that petition on August 9, 2016. As a result, we do not address her arguments 

concerning the dismissal of her I-1 appeal.

3

The appellant also argues that the “Notice to File” should be issued after the agency 

investigates a claim. RAF, Tab 6 at 4; see IAF, Tab 2 at 4. It appears that she confused

the NORF, which is issued at the close of informal counseling, with the final agency 

decision (FAD), which is issued after a formal investigation. 29 C.F.R. 

§§ 1614.105(b)(1), 1614.108(f), 1614.302(d). To trigger the investigation, an employee 

must file a formal mixed-case discrimination complaint. 29 C.F.R. §§ 1614.106(e)(2),

1614.302(d). Upon acceptance of the complaint, the agency must advise a complainant 

that she may file a Board appeal within 30 days of a FAD’s issuance, or within 120 

days of filing the formal complaint, if no FAD has been issued. 29 C.F.R. 

§ 1614.302(d)(1). Because the appellant never filed a formal complaint, the agency was 

not required to issue the acceptance notice or to initiate a formal investigation into her 

allegations.

4 After the appellant raised allegations of whistleblower reprisal during the adjudication 

of her refiled appeal, the administrative judge determined that the appellant was 

attempting to file an individual right of action (IRA) appeal concerning her removal 

action and docketed the IRA appeal separately in MSPB Docket No. 

DC-1221-16-0514-W-1.
4

¶6 The administrative judge issued an initial decision without holding the 

requested hearing, dismissing the appeal as untimely filed without good cause 

shown. RAF, Tab 9, Initial Decision (I-2 ID) at 1, 10-11; IAF, Tab 1 at 1. She 

found that the appellant had received the NORF and that the NORF and the 

agency’s removal decision properly notified her of her options and the associated 

deadlines for pursuing a mixed-case appeal. I-2 ID at 7-9. She further found that 

although the appellant was again notified of the closure of her informal complaint 

in January 2015, she waited 3 more months to pursue her Board appeal. I-2 ID 

at 9-10. She therefore found that the over 3-year filing delay was not attributable 

to the agency, but rather to the appellant’s lack of due diligence or ordinary 

prudence under the circumstances. I-2 ID at 7-10.

¶7 The appellant has filed a petition for review. Refiled Petition for Review 

(RPFR) File, Tab 1. The agency has filed a response in opposition. RPFR File , 

Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶8 On review, the appellant reasserts her contentions and resubmits a chain of 

emails, involving her, the EEO investigator, and others, from below concerning 

the timeliness of her appeal. RPFR File, Tab 1 at 4-25; RAF, Tab 6 at 30-44. We 

discern no error with the administrative judge’s finding that the appeal was 

untimely filed without good cause shown.

The appellant’s initial appeal is untimely filed.

¶9 An appellant bears the burden of proving by preponderant evidence that her 

appeal has been timely filed. 5 C.F.R. § 1201.56(b)(2)(i)(B). When an appellant 

has been subjected to an action appealable to the Board and raises issues of 

prohibited discrimination, she may either file a timely formal complaint of 

discrimination with the agency, or a timely appeal with the Board, but not both. 

5 C.F.R. § 1201.154(a). Whichever she files first is deemed an election to 

proceed in that forum. Augustine v. Department of Justice, 100 M.S.P.R. 156, ¶ 7 
5

(2005). However, an appellant who has only filed an informal EEO complaint or 

pursued informal counseling has not elected either remedy and, thus, is not 

precluded from filing a Board appeal. Gonzales v. U.S. Postal Service, 

11 M.S.P.R. 574, 575-76 (1982). If the appellant elects to file with the Board in 

the first instance, she must do so within 30 days of the effective date of the action 

being appealed or the date of receipt. 5 C.F.R. § 1201.154(a). If she fails to file

within the Board’s time limits, the appeal may be dismissed as untimely filed 

unless good cause is shown for the delay. Cranston v. U.S. Postal Service, 

106 M.S.P.R. 290, ¶ 8 & n.1 (2007); 5 C.F.R. § 1201.22(c).

¶10 As the administrative judge correctly found, the agency provided 

uncontroverted evidence that the appellant only filed an informal EEO complaint

of her removal. IAF, Tab 6 at 21; RAF, Tab 8 at 20-22; I-2 ID at 8. Thus, in the 

absence of a formal EEO complaint, the deadlines set forth in 5 C.F.R. 

§ 1201.154(b) are inapplicable to her appeal. See Cranston, 106 M.S.P.R. 290, 

¶ 8 n.1 (observing that the time limit applicable to a mixed-case appeal did not 

apply because the appellant did not file a formal EEO complaint). Because the 

appellant did not contest timely receiving the removal decision, she had 30 days 

from the effective date of her removal, until March 26, 2012, to appeal directly to 

the Board.

5

 5 C.F.R. §§ 1201.22(b)(1), 1201.23, 1201.154(a); IAF, Tab 6 at 40. 

It is undisputed that she did not file her appeal until April 25, 2015. IAF, Tab 1. 

Thus, we agree with the administrative judge that the appeal was untimely by 

over 3 years. I-2 ID at 10.

 

5 As the appellant admittedly received the agency’s removal notice in February 2012, 

her claims of insufficient notice concerning the status of her EEO case do not impact 

the timeliness determination. Rather, her contentions affect whether there is good cause 

to excuse the delay in filing her Board appeal over 3 years late. See Kirkland-Zuck v. 

Department of Housing & Urban Development, 85 M.S.P.R. 180, ¶¶ 8-10 (2000) 

(analyzing the appellant’s claims of improper notice of his EEO rights to determine 

whether there is good cause for his untimely filed Board appeal); Mincey v. U.S. Postal 

Service, 79 M.S.P.R. 663, 666-67 (1998) (same).
6

The appellant has not shown good cause for the delay.

¶11 A party must show that she exercised due diligence or ordinary prudence 

under the particular circumstances of the case to establish good cause for a 

late-filed appeal. Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 

(1980). If the agency failed in its obligation to provide a notice of appeal rights, 

an appellant must show that she was diligent in filing an appeal after she learned 

that she could do so. Gingrich v. U.S. Postal Service, 67 M.S.P.R. 583, 588 

(1995). To determine whether the appellant has shown good cause, the Board 

will consider the length of the delay; the reasonableness of her excuse and her

showing of due diligence; whether she is proceeding pro se; and whether she has 

presented evidence of the existence of circumstances beyond her control that 

affected her ability to comply with the time limits or of unavoidable casualty or 

misfortune that similarly shows a causal relationship to her inability to timely file 

her Board appeal. Moorman v. Department of the Army, 68 M.S.P.R. 60, 62-63 

(1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).

¶12 The appellant attributes her delay to her confusion regarding mixed-case 

appeal procedures, arguing that she was not represented when she received the 

removal decision. RPFR File, Tab 1 at 5. The administrative judge correctly 

concluded that the removal decision, which the appellant does not deny timely 

receiving, notified her of the avenues and associated deadlines for appealing her 

removal, including her right to file a mixed-case Board appeal or a mixed-case 

EEO complaint, but not both. See 5 C.F.R. § 1201.21 (listing the notifications 

that agencies must provide to appellants when issuing a decision notice on 

matters appealable to the Board); see also 29 C.F.R. § 1614.302(b) (requiring 

agencies to notify employees who have raised discrimination claims in connection 

with a Board appealable action of their mixed-case appeal rights); IAF, Tab 6 at 

45-46; I-2 ID at 7-8. We find the removal decision to be clear on its face, and 

thus, the appellant’s alleged confusion is not good cause for her untimeliness.
7

¶13 Furthermore, assuming arguendo that the appellant’s contentions of 

nonreceipt of the April 21, 2012 NORF are true, such finding would not be 

dispositive. As the administrative judge determined, even if the appellant indeed 

did not learn of the closure of her informal EEO counseling until January 2015, 

she afterwards failed to act with adequate promptness to file her appeal. The 

May 8, 2012 letter that the appellant admittedly received notified her that she had 

initiated informal counseling and of her general EEO rights and responsibilities. 

IAF, Tab 6 at 30-34; RAF, Tab 3 at 7. However, she waited until January 2015, 

almost 3 years after receiving this letter, to inquire as to the status of her EEO 

counseling request. RAF, Tab 6 at 30-45. The agency immediately notified her

that a NORF had been issued. Id. at 30. By this time, the appellant, who was 

familiar with the EEO process, was pursuing a separate EEO complaint with the 

assistance of counsel. IAF, Tab 6 at 21; RAF, Tab 6 at 4. Rather than

immediately filing her Board appeal, on March 10, 2015, the appellant, through 

her attorney, filed a motion to amend that pending EEO complaint to include her 

proposed removal and removal. IAF, Tab 6 at 25-29. Thus, to the extent that the 

purportedly delayed notice of the closure of her informal counseling affected her 

ability to timely elect to file a formal discrimination complaint with the agency or 

to pursue a Board appeal, this claim at most explains the delay until 

January 2015. The appellant, however, further delayed filing her Board appeal

until 10 days after the Equal Employment Opportunity Commission

administrative judge denied her motion to amend. IAF, Tab 1, Tab 6 at 22-24. 

The fact that she was engaged in other proceedings between January and April 

2015 does not constitute good cause for the late filing. See Mauldin v. U.S. 

Postal Service, 115 M.S.P.R. 513, ¶ 13 (2011).

¶14 Although the appellant’s pro se status is a factor weighing in her favor, it is 

insufficient to establish good cause considering the length of the delay and that 

she was informed of the fora and time limits to file. Crook v. U.S. Postal Service, 

108 M.S.P.R. 553, ¶ 6 (finding a 1-month delay significant, notwithstanding the 
8

appellant’s pro se status), aff’d per curiam, 301 F. App’x 982 (Fed. Cir. 2008). 

Other than the issues regarding notice and her pro se status, the appellant

presented no circumstances or events that affected her ability to file on time.

6

 

Moreover, she did not identify any efforts undertaken to pursue her Board appeal, 

or explain her inaction between January and April 2015. Thus, as properly 

determined by the administrative judge, we find that the appellant did not

demonstrate due diligence or ordinary prudence that would make a good cause 

finding appropriate.

¶15 Accordingly, we deny the appellant’s petition for review and affirm the 

initial decision, which dismissed her appeal as untimely filed without good cause

shown. In light of this disposition, we decline to address the appellant’s 

arguments regarding the merits of her appeal. Chavez v. Office of Personnel 

Management, 46 M.S.P.R. 390, 392 n.2 (1990) (finding that the administrative 

judge properly declined to address the merits of an appeal when the matter was

dismissed as untimely filed); RPFR File, Tab 1 at 5-6.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS7

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 

 

6

In support of her request below to suspend case processing, the appellant presented 

argument and evidence for her claims of unavoidable casualty or misfortune that had 

ensued since filing her Board appeal. IAF, Tab 13 at 4-6, Tab 14 at 4. However, she 

made no such claims for the period before filing her Board appeal to explain the delay.

7

The administrative judge failed to inform the appellant of her mixed-case right to 

appeal from the initial decision on her discrimination claims to the Equal Employment 

Opportunity Commission and/or the United States District Court. This was error, but it 

does not constitute reversible error, because we notify the appellant of her mixed -case 

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

186-87 (1988).
9

of the U.S. 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 U.S. 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 
10

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:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board