UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

MAYA BEAUDETTE,

Appellant,

v.
DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER SF

- 315H

- 17

- 0634

- I

- 1

DATE: July 15, 2022



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Maya Beaudette , Las Vegas, Nevada, pro se.

Michael L. Gurnee , Esquire, Centennial, Colorado, for the agency.

BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member Tristan L. Leavitt , Member

FINAL ORDER ¶1 The a ppellant has filed a petition for review of the initial decision, which
dismissed her probationary termination appeal for lack of jurisdiction

. The administrative judge also dismissed the appellant’s V eterans Employment Opportunities Act of 1998 (VEOA) , Uniformed Services Employment and

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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

Reemployment Rights Act of 1994 (USERRA) (codified as amended at 38 U.S.C. §§ 4301

- 4335) , equal employment opportunity (EEO) reprisal, discrimination,
and other p rohibited personnel practice claims for lack of jurisdiction. ¶2 On review, the appellant re argues that she is a career tenured employee with Board appeal rights and submits argument and evidence challenging the merits of
her termination

. Petition for Review (PFR) File, Tab 2 at 11

- 14 , 16

- 4 2 . She
further claims that the Boa rd has jurisdiction over her VEO A appeal concerning
her non selection for positions because she exhausted her administrative remedies with the Department of Labor (DOL) , as reflected in fou r DOL closure letter s , which she submit s for the first time on review. PFR File, Tab 1 at 4

- 5, Tab 4

at 4

- 11

. S he also allege s that she is a “whistle blower
, ” discusses matters related to her EEO complaint , and alleges that the agency “did not honor [the] union agreement

. ” 2 PFR File, Tab 1 at 5 , Tab 2 at 4

- 5 , 11

. ¶3 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 er roneous 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 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 t he Code of

2 For the first time on review, t he appellant also alleges that the agency terminated her for partisan political reasons . PFR File, Tab 2 at 12 ; see 5 C.F.R. § 315.806 (a)

- (b) (providing for limited Board jurisdiction over such claims)

. However, her allegation that her termination was due to her affiliation with a group that is “pro Muslim, Pro immigrant anti Neo

- Nazi ” [sic] is insu fficient to meet her jurisdictional burden

. PFR File, Tab 2 at 12. To show that the Board has jurisdiction because an agency terminated an appointee for partisan political reasons , a n appellant must provide supporting facts to show that the allegation is not merely a pro forma pleading

. Smirne v. Department of Army , 115 M.S.P.R. 51 , ¶ 8 (2010). The appellan t has not alleged any specific facts concerning her claim and thus has not met her jurisdictional burden.3

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 address the appellant’s claim of Board jurisdiction over her VEOA and whistleblower reprisal claims , we AFFIRM the i nitial decision. ¶4 As to the appellant’s VEOA claim concerning her nonselection for agency
vacancies , it is undisputed that she is a 10

- point preference eligible. Initial Appeal File (IAF) , Tab 6 at 15, Tab 7 at 27

. T he administrative judge dismissed
her claim for lack of jurisdiction because she failed to allege that she exhausted
her administrative remedies with DOL

. 3 IAF , Tab 10, Initial Decision (ID) at 8 ;

see Gingery v. Office of Personnel Management , 119 M.S.P.R. 43 , ¶ 1 3 (2012) (explaining that, t o establish Board jurisdiction over a VEOA appeal, the appellant must show that he exhausted his remedy with DOL, among other
requ irements ) . We find that the DOL closure letter s , which are dated after the issuance of the initial decision, are new and material evidence under 5 C.F.R. § 1201.115 (d). By submitting DOL’s letter s stating the results of its investigation into complaint s asserting the appellant’s veterans preference rights were violated , she has satisfied the exhaustion requirement

. S ee Gingery , 119 M.S.P.R. 43 , ¶ 15

. ¶5 We nevertheless deny corrective action

. DOL declined to investigate the
VEOA complaint s because they were not filed with DOL within the 60

- day filing
deadline. PFR File, Tab 4 at 4

- 11 ; see 5 U.S.C. § 3330a (a)(2)(A) (explaining that a VEOA complaint must be filed within the 60 days following the alleged violation). The 60

- day filing deadline is subject t o equitable tolling, which, if

3 The appellant filed a separate VEOA claim concerning a different nonselection

. Beaudette v. Department of Homeland Security , MSPB Docket No. SF

- 3330

- 18

- 0181

- I

- 1, In itial Decision at 2 (Apr. 23, 2018)

. The administrative judge issued an initial decision in that appeal, granting corrective action. Id. at 1, 10.4

applicable, may allow the Board to review the appeal. Gingery , 119 M.S.P.R. 43 , ¶ 17. The appell ant argued equitable tolling should apply because she relied on the agency’s determination that she was ineligible for the positions at issue

. IAF, Tab 6 at 10. This argument goes to the merits of the appellant’s VEOA claim and does not explain why she d id not meet the filing deadline. Similarly, the appellant’ s assertion that she was unaware of her right to file a VEOA complaint , PFR File, Tab 4 at 4, is not a sufficient reason to equitably toll the filing
deadline , Gingery , 119 M.S.P.R. 43 , ¶ ¶ 17

- 18 (explaining that equitable tolling is applied sparingly, such as when the appellant ha s actively pursued his remedies by filing a defective pleading during the statutory period or been “induced or tricked” by an agency representative into filing late (quoting Irwin v. Department of Veterans Affairs , 498 U.S. 89 , 96 (1990)). When an appellant files an untimely DOL complaint and equitable tolling does not apply, the request for corrective
action must be denied for failure to meet the 60

- day time limit. Gingery , 119 M.S.P.R. 43 , ¶ 16 n.3. We therefore deny the appellant’s request for
corrective action under VEOA based on her failure to meet the time limit for filing a complaint with DOL

. ¶6 Regarding the appellant’s wh istleblower reprisal claim, PFR File Tab 1 at 5; IAF, Tab 6 at 8, 17, she has not raised it in connection with an othe rwise appealable action because the Board lack s jurisdiction over her probationary termination for the reasons explained by the administrative judge in the initial decision, which we have affirmed above

. ID at 3

- 6 . Thus , f or the Board to
review that claim , the appellant must satisfy the jurisdiction al requirements of an individual right of action (IRA) appeal

. S ee Neice v. Department of Homeland Security , 105 M.S.P.R. 211 , ¶ ¶ 13

- 14 (2007) (finding that, although the Board lacked jurisdiction over the appellant’s resignation as an otherwise appealable action, the Board would consider any whistleblo wer reprisal claims that satisfied the jurisdictional requirements of an IRA appea l )

. To establish Board jurisdiction over an IRA appeal, the appellant must have exhausted her administrative5

remedies before the O ffice of Special Counsel and make nonfrivolou s allegations of the following: (1) she made a protected disclosure described u nder 5 U.S.C. § 2302 (b)(8) or engaged in protected activity as specified in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D); and (2) the dis closure or protected activity

was a co ntributing factor in the agency’ s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302 (a)

. 5 U.S.C. §§ 1214 (a)(3),
1221 (a) ; Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 5 (2016). The appellant has not made that necessary showing. ¶7 However, the administrative judge did not notify the appellant of the jurisdictional requirements for an IRA appeal in any of his orders or the initial decision; the agency’s response did not cure that def ect. The appellant must receive explicit information on what is required to establish Board jurisdiction
b efore dismissing a claim for lack of jurisdiction. 4 See Burgess v. Merit Systems
Protection Board , 758 F.2d 641 , 643

- 44 (Fed. Cir. 1985). Accordingly, w e FORWARD the appellant’ s whistleblowing allegation to the Board’s Western Regional O ffice for docketing as an IRA appeal and further adjudication in
accordance with this O rder

. ¶8 T he appellant has filed a union grievance over her termination ; however, she asserted that the agency refused to arbitrate her claim . IAF, Tab 7

at 5, 13 ; PFR File, Tab 2 at 5 . The filing of that g rievance may affect her right to pursue her whistleblower reprisal claim in another forum. See Savage v. Department of the Army , 122 M.S.P.R. 612 , ¶ ¶ 17

- 18 (2015) (explaining that , if

4 Even if the appellant establishes Board jurisdiction over her whistleblower reprisal claims, under thes e circumstances, it would not provide a basis for reviewing her EEO reprisal claims or allegations that the agency violated the applicable collective bargaining agreement

. See Benton

- Flores v. Department of Defense , 121 M.S.P.R. 428 , ¶ 6 n.1 (2014) (finding that the Board does not have jurisdiction over the appellant’ s claims of harmful proc edural error and EEO retaliation in the context of an IRA appeal ) ; Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980) (holding that prohibited per sonnel practices under 5 U.S.C. § 2302 (b) are not an independent source of Board jurisdiction), aff’d
, 681 F.2d 867 , 871

- 73 (D.C. Cir. 1982)

.6

made knowingly and voluntarily, a n appellant ’ s election first to file, as applicable here, either a grievance or an OSC complaint , potentially followed by an IRA appeal, is a binding election of that remedy ) , clarified on other grounds by Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647 , ¶¶ 30

- 31 (2016)

. Accordingly, upon docketing of the IRA appeal , the administrative judge should
address this election of remedies issue.

NOTICE OF APPEAL RIG HTS 5 The initial decision, as supplemented by this Final O rder, 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 o ffer 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 ru le 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
with in 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 f orum for more information.

5 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 wh ich option is most appropriate in any matter.7

(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 t he 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: 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 availabl e 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 you8

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 clai m of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court

- appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. 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 revi ew 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:9

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
Enhanc ement 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 disposition of allegations of a prohibited personnel practice described in s ection 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. 6 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 judicia l 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

6 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 cour t of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115

- 195, 132 Stat. 1510.10

Additional information a bout 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 Practic e, 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 repre sentation 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. Contact information for the c ourts 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