UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

BARBARA A. JORDAN, Appellant,

v.
ENVIRONMENTAL PROTEC TION AGENCY, Agency. DOCKET NUMBER AT

- 0752

- 12

- 0036

- I

- 1

DATE: September 22, 2015



### THIS FINAL ORDER IS NONPRECEDENTIAL ∗

Barbara A. Jordan , Stone Mountain, Georgia, pro se. Alexandra Meighan , 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 affirmed the agency’s action removing her from her position as an Administrative
Officer. For the reasons set forth below, the appellant’s petition for review is

∗ A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not
re quired 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

DISMISSED as untimely filed without good cause shown. 5 C.F.R. § 1201.114 (e), (g).

BACKGROUND ¶2 The appellant appealed the agency’s action removing her from her position as an Administrative Officer, GS

- 11. Initial Appeal File (IAF), Tab 1. After holding a hearing, the administrative judge sustained the charged misconduct and affirmed the agency’s removal . Initial Decision (ID) at 10

- 13 . The initial decision also informed the parties that it would become final, unless a party filed a petition for rev iew by April 23, 2012. ID at 13

.

DISCUSSION OF ARGUME NTS ON REVIEW ¶3 The appellant, however, did not file her petition for rev iew until July 9, 2015. Petition for Review (PFR) File, Tab 1. On review, she states that she has been homeless since August 2011 and she asserts that she did not receive the
initial decision “via mail” when it was issued. Id

. at 3. She also appears to assert that she only learned that the initial decision was issued when she went to the
Board’s Atl anta Regional Office on February 14, 2014, over approximately
2 years later. Id

. ¶4 A petition for review must be filed within 35 days after the date of issuance
of the initial decision. Sutton v. Office of Personnel Management
, 113 M.S.P.R.
576 , ¶ 5 (2010), aff’d , 414 F. App’x 272 (Fed. Cir. 2011); 5 C.F.R. § 1201.114 (d). The Board will waive the filing deadline for a petition for review only upon a showing of good cause for the delay in filing. Id

. ; Lawson v. Department of Homeland Security
, 102 M.S.P.R. 185 , ¶ 5 (2006); 5 C.F.R. §§ 1201.12 , 1201.114(f). To establish good cause for the untimely filing of an appeal, a party
must show that s he exercised due diligence or ordinary prudence under the particular circumstances of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180 , 184 (1980). To determine if an appellant has shown good cause, the Board will consider the length of the delay, the reasonableness of h er excuse3

and h er showing of due diligence, whether s he is proceeding pro se, and whether

s he has presented evidence of the existence of circumstances beyond h er control
that affected h er ability to comply with the time limits or of unavoidable casualty
or misfortune which similar ly shows a causal relationship to h er inability to timely file h er petition. Moorman v. Department of the Army
, 68 M.S.P.R. 60 , 62

- 63 (1995), aff’d , 79 F.3d 1167 (Fed. Cir. 1 996) (Table). ¶5 Here, the appellant’s filing delay was substantial as she filed her petition
for revi ew over 3 years after the April 23, 2012 filing deadline. While she asserts that her petition was untimely because she did not become aware of the initial decision until February 14, 2014, she has offered no justification for the delay between February 14, 2014 , and her filing on July 9, 2015, approximately
17 months later. We also find that, even if true that she did not learn about the existence of the initial decision until then, her inordinate delay in checking on the
status of her case did not exhibit ordinary prudence or due diligence. Nor has she explained ho w her hom elessness since August 2011 prevented her from timely filing her petition for review, especially in light of the fact that she pursued t his appeal below from September 2011 to March 2012. ¶6 To the extent the appellant appears to be asserting that she had m edical issues that prevented her from timely filing her petition for review , the Board will find good cause for a filing delay where an appellant has demonstrated that she suffered from an illness that affected her ability to file on time. Sutton , 113 M.S.P.R. 576 , ¶ 10; Lacy v. Department of the Navy
, 78 M.S.P.R. 434 , 437 (1998) . To establish that an untimely filing was the result of a n illness, the party must: (1) identify the time period during which she suffered from the illness; (2) submit medical evidence showing that she suffered from the alleged illness
d uring that time period; and (3) explain how the illness prevented her from timely filing her appeal or a request for an extension of time. Sutton , 113 M.S.P.R. 576 , ¶ 10; Lacy , 78 M.S.P.R. at 437

. While there is no general incapacitation requirement, the appellant is required to explain why her alleged illness impaired4

her ability to meet the Board’s filing deadline or s eek an extension of time.
Sutto n , 113 M.S.P.R. 576 , ¶ 10; Lacy , 78 M.S.P.R. at 437 n.*. Here, the appellant
submits medical documentation from 2014 and 2015, well after the filing deadline, and she fails to provide any explanation as to how her medi cal conditions prevented her from timely filing either her pet ition or a request for an

exten sion of time. See , e.g. , Ortiz v. Department of Justice , 103 M.S.P.R. 621 , ¶ 23 (2006) (finding that a letter by the appellant’s physician that the appellant suffered from depression and other conditions was insufficient to justify the
entire 3

- year delay in filing a petition for review where the letter failed to state that the appel lant’s condition was so severe that he could not file a petition or seek help to do so). Thus, we find that the appellant has not demonstrated that her medical conditions prevented her from timely filing her petition for review

. ¶7 Moreover, the record ref lects that the appellant elected to register as an

e

- filer . IAF, Tab 1 at 2. Under 5 C.F.R. § 1201.14 (m)(2), Board documents
served ele ctronically on registered e

- filers are deemed received on the date of electronic submission. When a statute or regulation “deems” something to have been done, the event is considered to have occurred whether or not it actually did.
Rivera v. Social Secur ity Administration
, 111 M.S.P.R. 581 , ¶ 5 (2009). Thus, the
initial decision would have been deemed received on March 19, 2012

. ¶8 An e

- filer may withdraw her registration as an e

- filer at any time during a Board proceeding, but such withdrawal must be done by written pleading,
submitted either via e

- Appeal Online or via non electronic means. 5 C.F.R. § 1201.14 (e)(4). In this instance, while the appellant asserts that she did not receive the initial decision “via mail,” there is no evidence in the record that she ever expressed a desire to change her e

- filin g status. Under these circumstances, we find that the appellant did not terminate her status as an e

- filer, and that she has failed to show that she exercised the due diligence or ordinary prudence in this case that would justify waiving the filing deadli ne. We therefore find the5

petition for review was untimely filed without a showing of good cause for
the delay. ¶9 Accordingly, we dismiss the petition for review as untimely filed. This is the final decision of the Merit Systems Protection Board regardin g the timeliness of the petition for review. The initial decision remains the final decis ion of the Board regarding the removal appeal

.

NOTICE TO THE APPELL ANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to reque st 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 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 Washingt on, 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
f ile, be very careful to file on time.6

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 act ion 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 entitl ed 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. § 2000e5 (f) and
29 U.S.C. § 794a

.

FOR THE BOARD:

Washington, D.C. ______________________________ William D. Spencer Clerk of the Board