UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

BRIAN G. GLADDEN,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBER

DC-0752-18-0553-I-1

DATE: June 12, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Charity C. Emeronye Swift, Esquire, and Stephen Christopher Swift, 

Esquire, Alexandria, Virginia, for the appellant.

John B. Reese, Bethesda, Maryland, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

sustained his removal. Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains erroneous findings of

material fact; the initial decision is based on an erroneous interpretation of statute

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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 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. 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 MODIFIED to

supplement the analysis regarding the appellant’s discrimination claims, we

AFFIRM the initial decision. 

BACKGROUND

The appellant was employed by the agency as a GS-5 Medical Support

Assistant at the Walter Reed National Military Medical Center. Initial Appeal

File (IAF), Tab 4 at 89. His primary duty was to serve as a clerk at the front desk

at the Hospital Dentistry Clinic. Id. at 24. Shortly after the appellant began to

work at the front desk, the agency also appointed another front desk clerk who

regularly worked with the appellant. Id. Almost immediately, the two had a

strained working relationship, and the agency issued them identical letters of

counseling regarding their “disruptive tension” in the workplace. Id. at 59-60,

65-66. 

Several months later, the other front desk clerk and, to a far lesser extent,

other coworkers, made allegations of sexual harassment against the appellant, and

the agency conducted an investigation. IAF, Tab 4 at 23-60. Following the

investigation, the agency proposed the appellant’s removal on one charge of

inappropriate conduct (three specifications) and one charge of “Violation of the

Health Insurance Portability and Accountability Act (HIPAA) Privacy and

Security Regulations” (four specifications). Id. at 67-70. Following the

2
appellant’s written and oral responses, id. at 71-78, the deciding official issued a

final decision, sustaining only the inappropriate conduct charge and removing the

appellant from Federal service, id. at 84-85. 

The appellant filed the instant appeal with the Board challenging his

removal and asserting that it was the result of discrimination. IAF, Tabs 1, 20.

Following a hearing, IAF, Tab 25, Hearing Compact Disc (HCD), the

administrative judge issued an initial decision sustaining two of the three

specifications of the inappropriate conduct charge and finding that the appellant

failed to prove his affirmative defense of discrimination, IAF, Tab 29,

Initial Decision (ID) at 8-10. She also found a nexus between the sustained

charge and the efficiency of the service and that the penalty of removal was

reasonable. ID at 10-13. The appellant has filed a petition for review of the

initial decision, and the agency has responded. 2 Petition for Review (PFR) File,

Tabs 3, 5. The appellant has also filed a reply to the agency’s response.

PFR File, Tab 6. 

DISCUSSION OF ARGUMENTS ON REVIEW

The agency proved the charge of inappropriate conduct by preponderant evidence.

A charge of inappropriate conduct has no specific elements of proof; it is

established by proving that the appellant committed the acts alleged in support of

the broad label. See Alvarado v. Department of the Air Force , 103 M.S.P.R. 1,

¶ 22 (2006) (considering the charge of “improper conduct”); Otero v. U.S. Postal

Service, 73 M.S.P.R. 198, 202 (1997) (stating that an agency need not affix any

label to its charges and can instead describe actions that constitute misbehavior in

narrative form and have its discipline sustained if the efficiency of the service

suffers because of the misconduct). Specification A of the charge alleged that on

August 23, 2016, the appellant was working at the front desk and made crude

2

 There is a question as to the timeliness of the petition for review, Petition for Review

(PFR) File, Tabs 5-6, that we need not, and do not, resolve, given our disposition of the

petition for review on the merits. See, e.g., Alcantara v. Office of Personnel

Management, 88 M.S.P.R. 61, ¶ 3 n.* (2001). 

3
comments that were sexual in nature to fellow coworkers. IAF, Tab 4 at 67.

Specifically, it alleged that the appellant stated, while on duty and in front of two

coworkers, “I think I will go back here and jerk off.” Id. During the hearing, a

Specialist and the other front desk clerk testified that the appellant made the

comment referencing masturbation and that it made them uncomfortable.

HCD (testimony of the Specialist and front desk clerk). The appellant testified to

the contrary, stating that he did not make the comment or any other similarly

inappropriate comment. HCD (testimony of the appellant). 

When, as here, there is conflicting testimony concerning the appellant’s

conduct, and it is impossible to believe the testimony of witnesses on both sides,

an administrative judge must make credibility determinations to properly resolve

the case. Vicente v. Department of the Army, 87 M.S.P.R. 80, ¶ 7 (2000). In the

initial decision, the administrative judge assessed the credibility of the Specialist,

the other front desk clerk, and the appellant pursuant to the factors set forth in

Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). ID at 8.

In doing so, she relied on their demeanors and the degree of consistency with

other evidence in the record, such as statements made during the agency

investigation into the appellant’s conduct. ID at 8. She concluded that the

Specialist and the other front desk clerk were more credible witnesses than the

appellant and sustained the specification. Id. 

On review, the appellant generally argues that the specification contains no

specificity, such as the circumstances surrounding the alleged comment or the

nature of the comment. PFR File, Tab 3 at 5-6. He also asserts that the other

front desk clerk was biased because the two of them did not get along and that her

testimony is therefore not credible. Id. at 6, 12-13. He further alleges that the

Specialist’s and the front desk clerk’s testimony was contradictory because they

could not agree about whether the alleged comment was made in reference to a

jerked chicken lunch. Id.

4
The appellant’s arguments do not provide a basis to disturb the initial

decision. The two witnesses’ testimony provided the degree of specificity that

the appellant alleges the agency failed to show; they testified regarding the nature

and circumstances surrounding the alleged comment, providing the date of the

incident and the time of day, and explaining the expressions on the appellant’s

face and general demeanor when he made the comment. HCD (testimony of the

Specialist and front desk clerk). Further, although there was a poor workplace

history between the other front desk clerk and the appellant, the Board cannot

discount testimony based solely on the potential bias of a witness. Redschlag v.

Department of the Army, 89 M.S.P.R. 589, ¶ 12 (2001). Furthermore, although

the appellant is correct that the other front desk clerk and the Specialist’s

testimony conflicted regarding whether the comment was made in reference to the

jerked chicken lunch, the administrative judge acknowledged this discrepancy,

but nevertheless found the Specialist, in particular, to be a credible witness

because she testified in a “straightforward” and “clear” manner. ID at 8. Given

this demeanor-based finding, we defer to the administrative judge’s credibility

determination. See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed.

Cir. 2002) (observing that the Board generally must give deference to an

administrative judge’s credibility determinations when they are based, explicitly

or implicitly, on the observation of the demeanor of witnesses testifying at a

hearing). Accordingly, we decline to disturb the administrative judge’s finding

that the other front desk clerk and Specialist were more credible witnesses than

the appellant. The appellant’s attempts on review to have the Board reweigh this

evidence are unpersuasive. PFR File, Tab 3 at 5-7; see Crosby v. U.S. Postal

Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the

administrative judge’s findings when she considered the evidence as a whole,

drew appropriate inferences, and made reasoned conclusions on issues of

credibility); Broughton v. Department of Health and Human Services,

33 M.S.P.R. 357, 359 (1987) (same). 

5
Specification C3

 of the charge alleges that, on August 8, 2016,

while speaking to a coworker about the television show “Law and Order,” the

appellant stated to the Specialist that “pedophiles get off on [a] baby’s natural

sucking reflex.” IAF, Tab 4 at 67. At the hearing, the Specialist testified

regarding the incident, stating that the appellant made that statement to her and

that she had to ask him several times to stop talking about it before he quit.

HCD (testimony of the Specialist). The appellant acknowledged that he made the

comment, but claimed that it was “academic in nature” and stopped talking about

it when the Specialist asked him to. HCD (testimony of the appellant); PFR File,

Tab 3 at 10-11. The administrative judge credited the Specialist’s testimony, in

part because it was consistent with her prior statements during the investigation,

and she sustained the specification. ID at 9. 

On review, the appellant argues that the agency viewed the comment in the

wrong context and that it was not harassment 4 because he was discussing the

“punishment for pedophiles.” PFR File, Tab 3 at 10-11. These arguments are

unconvincing. The Specialist testified that she knew “where [the appellant] was

going” with his comments and that they made her uncomfortable, particularly

because she had two children. HCD (testimony of the Specialist).

The administrative judge credited the Specialist’s testimony, emphasizing that she

provided it “in an earnest manner.” ID at 9. The appellant’s arguments on

review are not sufficient to disturb this demeanor-based credibility finding.

Haebe, 288 F.3d at 1301 (stating that the Board may overturn demeanor-based

credibility determinations only when it has “sufficiently sound” reasons to do so);

3

 Although the appellant included in his petition for review arguments that addressed

Specification B, PFR File, Tab 3 at 7-9, the administrative judge did not sustain that

specification, ID at 8-9, and the agency has not challenged that determination in its

response to the appellant’s petition for review, PFR File, Tab 5. As such, it is not

necessary to consider the appellant’s arguments regarding that specification. 

4

 To the extent the appellant characterizes the agency’s charge as one of sexual

harassment in his petition for review, PFR File, Tab 3 at 10, he is mistaken.

The agency charged him with inappropriate conduct. IAF, Tab 4 at 67. 

6
see Faucher v. Department of the Air Force, 96 M.S.P.R. 203, ¶ 8 (2004)

(stating that “sufficiently sound” reasons for overturning an administrative

judge’s demeanor-based credibility determinations include circumstances when

the administrative judge’s findings are incomplete, inconsistent with the weight

of evidence, and do not reflect the record as a whole). 

Based on the foregoing, we agree with the administrative judge’s decision

to sustain the charge, and we will not disturb it. 

The appellant failed to prove his affirmative defenses of Title VII and age

discrimination.

The appellant asserted as an affirmative defense that his removal was the

result of race, color, sex, religion, national origin, and age discrimination.

IAF, Tab 20. An appellant alleging discrimination must prove that such

discrimination was at least a motivating factor in the agency’s employment

decision. Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 21.

Here, the administrative judge considered the appellant’s assertion that his

age, race, color, sex, religion, and national origin played a “major role” in the

way he was perceived. ID at 10. She found, however, that he failed to submit

any evidence supporting his claim, either in response to the affirmative defenses

order, in his prehearing submission, or at the hearing. Id. She also concluded

that the record did not contain any evidence that the responsible management

officials were motivated by discriminatory factors. Id. 

On review, the appellant reasserts his discrimination claim and appears to

argue that he was discriminated against because his “accusers” were of a different

age, sex, race, and national origin. PFR File, Tab 3 at 4, 13. Although this

statement may be true, it does not prove that the appellant’s age, sex, race, and

national origin were motivating factors in his removal. Further, the deciding

official specifically testified that he did not consider the appellant’s age, race,

sex, national origin, or religious faith when he effected the removal action.

HCD (testimony of the deciding official). The administrative judge did not

7
discuss this testimony or make an explicit credibility finding on this point,

ID at 10, but the appellant bears the burden of proof on his affirmative defense,

see 5 C.F.R. § 1201.56(b)(2)(i)(C). We find that the appellant has not proven by

preponderant evidence that any of the prohibited categories discussed above were

motivating factors in his removal, and we discern no basis to disturb in the initial

decision in this regard. Because we affirm the administrative judge’s finding that

the appellant failed to show that any prohibited consideration was a motivating

factor in the agency’s action, we need not resolve the issue of whether the

appellant proved that discrimination was a “but-for” cause of the agency’s

decisions. See Pridgen, 2022 MSPB 31, ¶¶ 20-22, 29-33. 

The penalty of removal is reasonable. 5

When, as here, the Board sustains the agency’s charges, but not all of the

specifications of those charges, it will review the agency-imposed penalty to

determine whether it is within the parameters of reasonableness.

Dunn v. Department of the Air Force, 96 M.S.P.R. 166, ¶ 10 (2004), aff’d, 139 F.

App’x 280 (Fed. Cir. 2005). The Board’s function is not to displace

management’s responsibility or to decide what penalty it would impose, but to

assure that management’s judgment has been properly exercised and that the

penalty selected by the agency does not exceed the maximum limits of

reasonableness. Stuhlmacher v. U.S. Postal Service, 89 M.S.P.R. 272, ¶ 20

(2001); Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). Thus,

the Board will modify a penalty only when it finds that the agency failed to weigh

the relevant factors or that the penalty the agency imposed clearly exceeds the

bounds of reasonableness. Stuhlmacher, 89 M.S.P.R. 272, ¶ 20. 

Here, the deciding official completed a Douglas factor worksheet and

reiterated his conclusions at the hearing. IAF, Tab 4 at 79-83; HCD (testimony of

5

 As noted, the administrative judge found that the appellant’s misconduct had a nexus

to the efficiency of the service. ID at 10-11. The appellant has not challenged that

finding on review, and we discern no reason to disturb it. 

8
the deciding official). He testified that removal was reasonable considering the

nature of the appellant’s workplace and the importance of maintaining integrity in

that environment. HCD (testimony of the deciding official). He further testified

that he consulted the agency’s table of penalties and that removal was consistent

with the suggested penalty for inappropriate behavior that was sexual in nature.

Id. He also testified that he considered that the appellant exhibited a pattern of

inappropriate conduct without signs of improvement and concluded that he lacked

the potential for rehabilitation. IAF, Tab 4 at 82. He considered the appellant’s

past disciplinary history, noting that he had a record of inappropriate conduct,

id. at 80, as well as mitigating factors, such as the appellant’s performance and

strained work relationship with the other front desk clerk, but concluded that they

were overshadowed by the negative climate created by his offenses, id. at 81-82.

In the initial decision, the administrative judge found that the deciding official

properly weighed the relevant Douglas factors in affirming the removal, and she

credited his testimony based on his demeanor and its consistency with the written

record. ID at 12. 

On review, the appellant argues that both the administrative judge and the

deciding official erred in sustaining the penalty of removal. PFR File, Tab 3

at 11-13. He argues that the administrative judge improperly considered the

second charge that was included in the proposal action but not sustained by the

deciding official in finding that the penalty of removal was reasonable. Id. at 3.

Although the administrative judge discussed the second charge that was not

sustained by the deciding official in the background section of the initial

decision, there is no indication that she considered the charge in her assessment

of the reasonableness of the penalty of removal. ID at 11-13.

Additionally, the appellant generally argues that the deciding official’s

penalty analysis was not sufficient for a variety of reasons, including that he

failed to explain why the table of penalties on which the he relied was relevant

and why he did not find the appellant dependable, or how the misconduct

9
rendered him unable to perform his job. PFR File, Tab 3 at 11-13. He also

contends that the deciding official’s finding that he lacked the potential for

rehabilitation was “incendiary, demeaning, and humiliating” because it likened

him to “a criminal in prison, whose issue was about rehabilitation from his past

crime.” Id. at 11. 

The appellant’s arguments are unconvincing. Whether an employee has the

potential for rehabilitation and whether the proposed penalty is consistent with

the agency’s table of penalties are both relevant factors for a deciding official to

consider when determining the appropriate penalty. Douglas, 5 M.S.P.R. at 305.

Here, the table of penalties indicates that the similar charge of conduct

unbecoming a Federal employee, which also has a broad label but is accompanied

by a narrative detailing alleged misconduct, see Canada v. Department of

Homeland Security, 113 M.S.P.R. 509, ¶ 9 (2010), warrants a penalty in the range

of a 5-day suspension to a removal after the first offense. IAF, Tab 4 at 115.

Thus, we see no error in the deciding official’s reliance on the table of penalties

to determine the appropriate penalty. Further, the deciding official testified at

length why he believed the appellant was no longer dependable or able to perform

his duties, focusing on the environment created by the misconduct and the

agency’s mission of dealing with veterans. HCD (testimony of the deciding

official); IAF, Tab 4 at 80. After our review of the hearing testimony and the

written Douglas factor analysis, we find that that the deciding official weighed

the relevant factors, including mitigating factors, before concluding that removal

was the appropriate penalty. IAF, Tab 4 at 79-83; HCD (testimony of the

deciding official). 

Because the deciding official properly considered Douglas factors, we only

review the penalty to determine whether it is reasonable. See Stuhlmacher,

89 M.S.P.R. 272, ¶ 20. We agree with the administrative judge that it is. In

assessing whether the agency’s selected penalty is within the tolerable limits of

reasonableness, the most important factor is the nature and seriousness of the

10
misconduct and its relation to the employee’s duties, position, and

responsibilities. Martin v. Department of Transportation, 103 M.S.P.R. 153, ¶ 13

(2006), aff’d, 224 Fed. App’x 974 (Fed. Cir. 2007). The Board has found that

conduct similar to the appellant’s is serious and may warrant removal. See, e.g.,

Social Security Administration v. Carr, 78 M.S.P.R. 313, 325-27, 341, 343 (1998)

(finding that good cause existed for removal of an administrative law judge when

she engaged in persistent use of vulgar and profane language, sexual harassment,

and ridicule, and made demeaning comments, even if they were intended as jokes,

when aggravating factors were present such as a prior reprimand, a relatively

brief Federal tenure of less than 4 years, difficulty with interpersonal

relationships in the office, and lack of potential for rehabilitation), aff’d, 185 F.3d

1318 (Fed. Cir. 1999); Wilson v. Department of Justice, 68 M.S.P.R. 303, 310-11

(1995) (concluding that disrespectful conduct manifested by the use of abusive,

language is unacceptable and not conducive to a stable working atmosphere and is

grounds for removal). Further, the appellant’s duties and responsibilities require

him to deal with the public, specifically with veterans, is a relevant factor and

may be considered aggravating. See Douglas, 5 M.S.P.R. at 305-06. 

In addition to these factors and the previously discussed table of penalties,

the record also reflects that the appellant had prior discipline, which the deciding

official considered. IAF, Tab 4 at 80. The record contains two letters of

counseling and a letter of reprimand, which concern performance issues and the

appellant’s ability to get along with coworkers. 6 Id. at 61-66. The record further

indicates that the appellant had been appointed to his position with the agency in

April of 2016, giving him less than 2 years of service. IAF, Tab 4 at 28.

Based on the foregoing, we find removal to be within the bounds of

reasonableness. The appellant’s mere disagreement with the weight the deciding

6

 Although two of these letters were issued after the appellant engaged in the charged

misconduct, and, therefore, generally could not be considered as prior discipline,

see Cantu v. Department of the Treasury, 88 M.S.P.R. 253, ¶ 6 (2001), they nonetheless

are relevant to the appellant’s potential for rehabilitation. 

11
official afforded to each Douglas factor provides no basis to disturb the initial

decision. See Kirkland v. Department of Homeland Security, 119 M.S.P.R. 74,

¶ 25 (2013) (explaining that the issue in determining whether the Board should

exercise its mitigation authority is not whether the Douglas factors could have

been weighed differently but whether the agency considered the relevant Douglas

factors and reasonably exercised management discretion in making its penalty

determination).

The appellant has not presented any new and material evidence that warrants a

reversal of the initial decision.

On review, the appellant seeks to resubmit three documents with his

petition for review, which include: (1) the final decision of removal; (2) an email

regarding Specification B of the charge of inappropriate conduct; and

(3) a summary document of the internal investigation into the appellant’s

misconduct. PFR File, Tab 3 at 15-27. However, all three of these documents are

included in the record below in the agency file, and, therefore, are not new. IAF,

Tab 4 at 23-33, 55, 84-85; see Meier v. Department of the Interior, 3 M.S.P.R.

247, 256 (1980) (concluding that evidence that was in the record below and was

considered by the administrative judge is not new simply because a party believes

that the evidence was not properly weighed or considered by the administrative

judge). Moreover, the appellant has not explained how any of these documents

would have a material impact on, or would change the outcome of, his appeal.

Accordingly, we find that the additional documents provide no basis for granting

review. See 5 C.F.R. § 1201.115(d) (providing that the Board will grant a

petition for review based on new and material evidence). 

We have considered all of the appellant’s arguments on review but have

concluded that a different outcome is not warranted. Accordingly, we DENY the

appellant’s petition for review and AFFIRM the initial decision. 

12
NOTICE OF APPEAL RIGHTS7

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 and

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). 

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: 

7

 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.

13
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. 420 (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 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

14
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

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

15
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.8 The 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

8

 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. 

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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: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

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