UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANNE C. KELLY,

Appellant,

v.

DEPARTMENT OF LABOR,

Agency.

DOCKET NUMBER

DC-0752-18-0576-I-1

DATE: July 16, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Anne C. Kelly, Ellicott City, Maryland, pro se.

Rolando N. Valdez, Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

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

sustained her 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

or regulation or the erroneous application of the law to the facts of the case; the

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

provide additional support for the administrative judge’s findings on the

appellant’s disability discrimination and equal employment opportunity (EEO)

retaliation claims, we AFFIRM the initial decision. 

BACKGROUND

¶2 The agency removed the appellant from her Information Technology

Specialist position based on the following charges: (1) Providing Inaccurate

Information on Your Timecards (27 specifications); (2) Inappropriate Behavior (7

specifications); and (3) Failure to Follow Supervisory Instructions (24

specifications). Initial Appeal File (IAF), Tab 1 at 175-82, Tab 10 at 7, Tab 12

at 15-30. The agency based the Inappropriate Behavior charge on the content of

several emails the appellant sent to her supervisor and the Failure to Follow

Supervisory Instructions charge on her failure to complete an assignment by a

deadline date and failure to send email messages to the division’s staff indicating

when she ended her work day while telecommuting. IAF, Tab 12 at 15, 20-24.

¶3 On appeal, the appellant challenged the action and asserted disability

discrimination based on disparate treatment, disparate impact, and a failure to

reasonably accommodate her disability, sex discrimination based on a hostile

work environment, retaliation for EEO activity, whistleblower reprisal, a due

process violation, harmful error, and violations of the Family and Medical Leave

2
Act of 1993 (FMLA) and the Telework Enhancement Act. IAF, Tab 16, Tab 22

at 6, 23, Tab 35.

¶4 Based on the written record because the appellant withdrew her request for

a hearing, IAF, Tabs 34-35, the administrative judge sustained the removal

action, IAF, Tab 44, Initial Decision (ID) at 1, 64. The administrative judge

found that the agency proved 26 of the 27 specifications supporting the charge of

Providing Inaccurate Information on Your Timecards, all 7 of the specifications

supporting the charge of Inappropriate Behavior, and all 24 of the specifications

supporting the charge of Failure to Follow Supervisory Instructions. ID at 11-34.

The administrative judge further found that the appellant did not prove disability

or sex discrimination, retaliation for EEO activity, reprisal for whistleblowing, a

violation of due process, harmful error, or a violation of the FMLA or the

Telework Enhancement Act. ID at 34-60. Finally, the administrative judge found

that the agency proved a nexus between the misconduct and the efficiency of the

service and that the penalty of removal was reasonable. ID at 60-64.

ANALYSIS

¶5 The appellant’s petition for review focuses on whether the agency

discriminated against her by failing to accommodate her disability, discriminated

against her based on sex, retaliated against her for engaging in EEO activity, and

violated the FMLA and Telework Enhancement Act. Petition for Review (PFR)

File, Tab 1 at 5-17. The appellant also challenges the reasonableness of the

penalty. Id. at 17-20. Accordingly, we address these allegations. 2 We affirm all

of the administrative judge’s findings, modifying her analysis as to the

appellant’s disability discrimination and EEO retaliation claims.

2

 We decline to disturb the administrative judge’s findings that the agency proved its

charges and a nexus between the charges and the efficiency of the service, and that the

appellant did not prove reprisal for whistleblowing, harmful error, or a due process

violation. The appellant does not dispute these findings on review. See 5 C.F.R.

§ 1201.115 (providing that the Board will consider only issues raised in a timely filed

petition or cross petition for review).

3
The appellant has not proven disability discrimination.

¶6 The administrative judge found that, although the appellant was disabled

due to her depression and bipolar disorder, she did not assert that the agency

denied her a reasonable accommodation, but instead alleged that her requested

accommodation of telework was effectively denied because it was delayed by

21⁄2 months.3 ID at 36, 39-42. The administrative judge held that any delay was

not unnecessary or unreasonable because the agency was entitled to request

supporting medical documentation for the appellant’s conditions, which were not

obvious, the agency worked to evaluate the request in an expeditious manner after

she submitted medical documentation, and the agency was entitled to obtain

signed and dated medical documentation from a medical provider. ID at 38-43.4

¶7 The appellant challenges the administrative judge’s finding that the delay

was reasonable in part because the agency purportedly sought an independent

medical review after the appellant submitted medical documentation on

January 23, 2017. PFR File, Tab 1 at 5-6. The appellant contends that she did

not submit medical documentation on that date and an independent medical

review did not occur at that time. Id. The appellant asserts that the only

communication she had with the agency on January 23, 2017, involved her

representative informing the agency that the information it sought had already

3

 The administrative judge did not address whether the appellant was a qualified

individual with a disability. ID at 38-43; see Haas v. Department of Homeland

Security, 2022MSPB 36, ¶¶ 28-29.

4

 The administrative judge acknowledged that the agency could have provided an

interim accommodation, but states that “doing so was complicated by the appellant’s

recent telework revocation, which was effective on November 29, 2016.” ID at 41. We

are skeptical that this is an adequate justification for not offering the appellant an

interim telework accommodation in December 2016. Even if the appellant was

ineligible for telework under the agency’s general policy, this would not be a sufficient

basis for the agency to deny her telework as an accommodation. See Natalie S. v.

Department of Veterans Affairs, EEOC Appeal Nos. 0120140815, 0120142049, 2018

WL 703733 at *13-*14 (January 26, 2018). Nevertheless, because the appellant has not

shown that any failure to accommodate was causally related to her removal, the issue of

interim accommodation is ultimately immaterial. See infra, ¶ 11; 5 U.S.C. § 7701(c)(2)

(B).

4
been provided, and the only independent medical review occurred in July 2017

after she requested a change in her accommodation from part-time to full-time

telework. Id. at 6.

¶8 The appellant also contends that the agency committed disability

discrimination because it incorrectly relied on the telework provisions of a

collective bargaining agreement to delay its provision of that reasonable

accommodation. Id. at 8-9. She further asserts that the agency ignored other

requests for accommodation in addition to the requests addressed by the

administrative judge and improperly required her to fill out a form and provide

additional medical documentation. Id. at 9-12.

¶9 Having considered the administrative judge’s analysis of this issue, we

discern no error in her findings that any delay in accommodating the appellant

was not unnecessary and that the agency otherwise did not improperly require the

appellant to submit certain forms and provide medical documentation in support

of her accommodation request. ID at 39-43; see Beck v. University of Wisconsin

Board of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996) (“A party that obstructs or

delays the interactive process is not acting in good faith.”). In sum, we agree

with the administrative judge’s conclusion that, under the circumstances, the

approximately 2 1/2-month delay in granting the appellant’s accommodation

request was not unreasonable. Therefore, the appellant has not shown that the

agency committed disability discrimination. We also set forth, however, an

additional basis for finding that the appellant’s disability discrimination claim

must fail.

¶10 To establish an affirmative defense of disability discrimination, an appellant

must first prove, among other things, that she suffers from a disability and that it

caused her misconduct or that the misconduct was entirely a manifestation of her

disability. Burton v. U.S. Postal Service, 112 M.S.P.R. 115, ¶ 15 (2009). The

appellant alleges that the agency’s delay in accommodation worsened her

disabilities and was a significant factor in her “resulting behavioral issues.” PFR

5
File, Tab 1 at 12-13. She also suggests that the medication she took for her

disability affected her short-term memory and “allegedly result[ed] in incorrect

time and attendance reporting,” id. at 17-18, and asserts that she presented

medical evidence proving that her past disciplinary actions and the misconduct

underlying the charge of Inappropriate Behavior “were consistent with [her]

bipolar I disability,” id. at 19. She contends that an initial incorrect diagnosis of

her medical condition and incorrect medication treatment contributed to any

faulty time and attendance reporting and that her disability and medication

affected her short-term memory. Id. The appellant submitted evidence

supporting these allegations. IAF, Tab 1 at 67-72, 132, Tab 33 at 35-43, 48-50.

¶11 Even assuming that the appellant’s misconduct was consistent with and a

manifestation of her disabilities, see Stevens v. Department of the Army,

73 M.S.P.R. 619, 627-28 (1997), we would still find that she did not prove her

allegation of disability discrimination. The Rehabilitation Act does not immunize

disabled employees from being disciplined for misconduct in the workplace

provided the agency would impose the same discipline on an employee without a

disability. Burton, 112 M.S.P.R. 115, ¶ 16. An employer never has to excuse a

violation of a uniformly applied conduct rule that is job-related and consistent

with business necessity. See Equal Employment Opportunity Commission Notice

No. 915.002, Enforcement Guidance: Reasonable Accommodation and Undue

Hardship Under the Americans with Disabilities Act, Question 35 (Oct. 17, 2002),

available at http://www.eeoc.gov/policy/docs/accommodation.html. We find the

agency’s requirements that its employees provide accurate information on their

timecards, communicate with their supervisors in an appropriate manner, and

follow their supervisors’ instructions appear to be conduct rules that are jobrelated and consistent with business necessity. The appellant has not shown that

the agency treated her differently from other non-disabled employees who may

have engaged in similar actions. Id.; see Adams v. Department of Labor,

112 M.S.P.R. 288, ¶ 18 (2009); Burton, 112 M.S.P.R. 115, ¶ 16; Bailey v.

6
Department of Defense, 92 M.S.P.R. 59, ¶ 14 (2002). Accordingly, the appellant

has not shown that the agency discriminated against her based on her disability in

connection with the removal action.

The appellant did not prove sex discrimination.

¶12 The appellant asserted on appeal that the agency subjected her to a hostile

work environment based on sex and did not take appropriate action in response to

her complaints, but instead directed her to stop her accusations. IAF, Tab 38

at 15-18. In particular, she claimed that a coworker made comments to her of a

sexual nature regarding a female employee who had had an affair with the

appellant’s husband, who also worked at the agency. Id. at 16; see IAF, Tab 1

at 140-41. The appellant asserted that these comments and the agency’s failure to

investigate or stop the harassment decreased her morale, increased her depression

and anxiety, impacted her ability to report to work and focus, and led to her

reliance on medications that contributed to memory and concentration problems,

increased irritability, and a loss of impulse control in her email communications

with her supervisor. IAF, Tab 38 at 16-18.

¶13 The administrative judge found that, even if true, the appellant did not show

that the limited conduct of the coworker was so severe or pervasive that a

reasonable person would have found the working environment to be hostile or

abusive. ID at 44-45. The administrative judge held that, even if the appellant

established that she experienced a hostile work environment based on sexual

harassment or a violation of the agency’s harassment reporting policy, the agency

would have removed the appellant based on the sustained misconduct, which was

unrelated to her harassment allegations. ID at 46-47. She thus found no

connection between these events and the removal action. ID at 46. The

administrative judge further found that the proposing and deciding officials had

no knowledge of the appellant’s allegations of sexual harassment. Id.

7
¶14 The appellant asserts on review that the sexual comments at issue were not

limited but ongoing, as evidenced by an email she sent to her first-level

supervisor. PFR File, Tab 1 at 14-15. The record includes an email dated

November 14, 2016, in which the appellant reported to the supervisor two

inappropriate comments made by her coworker. IAF, Tab 1 at 140. Another

email to her supervisor, dated November 22, 2016, indicates that the appellant

had to listen to the coworker talk about the female employee “still to this day,”

that the coworker continues to say things to the appellant about her husband and

the female employee, and that he made an inappropriate comment to her in that

regard 2 weeks ago. Id. at 141. We find no error in the administrative judge’s

determination that the appellant did not show that these comments, which appear

to have been made within a 2-week period, were sufficiently severe or pervasive

to alter the conditions of her employment and create an abusive working

environment. ID at 45-46; see Viens v. Department of the Interior, 92 M.S.P.R.

256, ¶¶ 9-10 (2002). 

¶15 Although the appellant contends that the administrative judge did not

consider her first-level supervisor’s direction to her not to report further alleged

sexual harassment by the coworker, PFR File, Tab 1 at 15, the administrative

judge noted this allegation, ID at 44-45, but ultimately found the discrimination

allegation unproven, ID at 45-47. The record includes the supervisor’s notes

from his January 6, 2017 verbal counseling of the appellant, which addressed

numerous aspects of her behavior including her “[i]nappropriate references to

current and former staff members” such as “[a]ccusations about [the coworker].”

IAF, Tab 12 at 211-14. This document does not reflect any demand that the

appellant stop any legitimate complaints about her coworkers. Moreover, the

supervisor confronted the coworker about the appellant’s allegations and

instructed him to stop the comments if they were true. IAF, Tab 13 at 87, Tab 36

at 34. Given these facts and the limited nature and extent of the comments in

question, we agree with the administrative judge that the appellant did not meet

8
her burden of proving sex discrimination even assuming that the first-level

supervisor made the alleged remark about her complaints.

The appellant did not prove retaliation for EEO activity.

¶16 The administrative judge found that the appellant’s husband filed an EEO

complaint with the agency’s Civil Rights Center on her behalf. ID at 48; see IAF,

Tab 23 at 4. The complaint alleged that the agency failed to reasonably

accommodate the appellant’s disability. IAF, Tab 23 at 4-7. The administrative

judge held that, under Savage v. Department of the Army, 122 M.S.P.R. 612,

¶ 51 (2015), the appellant did not prove that her participation in the EEO process

and investigation was a motivating factor in her removal. ID at 48-49. She found

that, among other things, the appellant primarily alleged retaliation for seeking a

reasonable accommodation, the deciding official was unaware of the “EEO

activity” and disavowed, in a sworn statement, basing her decision on such

activity, and the proposing official, though aware of the “EEO claims,” had no

reason to retaliate against her based on those claims. ID at 48-49.

¶17 The motivating factor standard applies to claims of reprisal for engaging in

activity protected under Title VII. See Pridgen v. Office of Management and

Budget, 2022 MSPB 31, ¶¶30-31. Specifically, under Title VII, an appellant must

first show that the prohibited consideration was a motivating factor in the

personnel action. Id. However, the Board has recognized that a more stringent

standard applies in the context of retaliation claims arising under the ADA such

that the appellant must prove that her prior EEO activity was a but-for cause of

the retaliation. Haas v. Department of Homeland Security, 2022MSPB 36, ¶ 31;

Pridgen v. Office of Personnel Management, 2022 MSPB 31, ¶¶ 44-47. Both

requesting a reasonable accommodation and complaining of disability

discrimination are activities protected by the Rehabilitation Act. Pridgen, 2022

MSPB 31, ¶ 44. As discussed below, we affirm the administrative judge’s factual

9
findings and reach the same conclusion, while modifying the initial decision to

apply the correct standard.

¶18 The appellant asserts that, contrary to the administrative judge’s finding,

email evidence shows that the deciding official was aware of her EEO activity.

PFR File, Tab 1 at 7. She contends that the timing of the agency’s actions against

her in relation to that activity provides sufficient evidence of retaliation. Id. The

February 2017 email in question, however, does not show that the deciding

official knew of the appellant’s EEO complaint; rather, at most, it shows that the

deciding official may have been aware of the appellant’s reasonable

accommodation request. IAF, Tab 40 at 11; but see IAF, Tab 36 at 23 (sworn

statement of the deciding official that she only became aware of the appellant’s

reasonable accommodation request in the summer of 2017, after the email in

question). Nevertheless, because we agree with the administrative judge that the

appellant otherwise failed to meet the lesser burden of proving that her protected

activity was a motivating factor in her removal, ID at 47-49, she necessarily

failed to meet the more stringent but-for standard that applies to her retaliation

claim, see Pridgen, 2022 MSPB 31, ¶ 48.

The appellant’s allegations of violations of law do not warrant reversal of the

removal action.

¶19 The appellant asserts on review that the agency violated the Telework

Enhancement Act when it imposed more requirements on telework employees

than employees who worked in the office. PFR File, Tab 1 at 13. In particular,

she challenges the agency’s requirement that she produce daily work reports

while teleworking and contends that the administrative judge incorrectly found

that her supervisor did not require her to provide such reports. Id. at 13-14. The

appellant also claims that the agency interfered with her FMLA rights when her

first-level supervisor required her to conduct work and attend meetings while on

FMLA leave. PFR File, Tab 1 at 15-17; see IAF, Tab 20 at 26-28.

10
¶20 The administrative judge found no violation of the Telework Enhancement

Act. ID at 31-32. The administrative judge also found that, even assuming that

the appellant’s supervisor interfered with her FMLA rights by sending her emails

that required her to take certain actions while on FMLA leave, those assignments

were distinct from any instructions or other matters at issue in the removal action;

thus, the administrative judge found that the appellant did not show that the

removal was predicated on, or motivated by, an interference with her FMLA

rights. ID at 57-59. We agree with the administrative judge’s findings. 

¶21 The appellant has not shown how any alleged violation of the above laws

warrants reversal of the removal action. If an agency bases an adverse action on

its interference with an employee’s rights under the FMLA, the adverse action is

a violation of law and cannot be sustained. Gross v. Department of Justice,

77 M.S.P.R. 83, 90 (1997); see Ellshoff v. Department of the Interior,

76 M.S.P.R. 54, 73 (1997) (finding that when the facts implicate the FMLA

relative to a leave-related charge, the Board will consider and apply the FMLA

without shifting the burden of proof to the appellant). Here, however, the agency

did not charge the appellant with a leave-related offense, nor was its action

otherwise based on an interference with her FMLA rights. Similarly, because the

action was not based on any failure by the appellant to produce daily work reports

while teleworking, it does not implicate the Telework Enhancement Act. 

¶22 An appealable action must be reversed as “not in accordance with law”

under 5 U.S.C. § 7701(c)(2)(C) if the action is unlawful in its entirety, i.e., if

there is no legal authority for the action. Stephen v. Department of the Air Force,

47 M.S.P.R. 672, 683-84 (1991). Even assuming a violation of one of the above

laws, such a violation would not establish a lack of legal authority for the

removal action. Under these circumstances, the appellant’s arguments do not

warrant reversal of the removal action. See Gulso v. Department of the Air

Force, 46 M.S.P.R. 478, 483 (1990); Gaines v. Department of the Treasury,

19 M.S.P.R. 88, 89 (1984); cf. Miller v. Department of Homeland Security,

11
111 M.S.P.R. 325, ¶ 14 (2009) (holding that the Board does not have jurisdiction

over all matters that are alleged to be unfair or incorrect), aff’d, 361 F. App’x 134

(Fed. Cir. 2010).

The agency proved the reasonableness of the penalty.

¶23 The appellant asserts that the agency did not provide her with notice of its

concerns regarding her timecard reporting until it proposed her removal, and that

providing such earlier notice would have afforded her the opportunity to

“implement[] corrective action and methods to compensate for her disability and

the fact that her medication, which was impacting her short-term memory, was

allegedly resulting in incorrect time and attendance reporting.” PFR File, Tab 1

at 17-18. The administrative judge addressed this issue, finding that the appellant

knew that she was required to certify on her timecards that her time worked and

leave taken were true and correct to the best of her knowledge. ID at 62. The

administrative judge also considered the appellant’s medical conditions and

mental disabilities as mitigating factors, particularly in light of her assertions that

they played a role in her misconduct. ID at 62-63. Nevertheless, the

administrative judge found these factors outweighed by the aggravating factors,

including the fact that the appellant repeatedly misreported her time and

attendance, sometimes by periods of 1 hour or more, over a long period of time.

ID at 63-64.

¶24 One of the relevant factors in determining the reasonableness of a penalty is

the clarity with which the employee was on notice of any rules that were violated

in committing the offense, or had been warned about the conduct in question.

Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305 (1981). The

administrative judge correctly noted that the timecard certification provided

clarity to the appellant that the agency expected her reported hours and leave to

be true and correct. Moreover, the Board has held that an agency’s failure to

warn an appellant that he is being investigated for possible attendance

12
irregularities does not provide a basis for mitigation. Flanagan v. Department of

the Army, 44 M.S.P.R. 378, 381 (1990). Thus, the Board has held that there is no

requirement that an agency provide an employee with a specific warning before it

proposes an adverse action, particularly when the action is based on a charge

involving time and attendance records, which the employee knows or should

know constitutes serious misconduct. Id. at 381-82.

¶25 The appellant further contends that the administrative judge improperly

relied on prior discipline for misconduct similar to that underlying the charge of

Inappropriate Behavior in finding that she was on notice that such conduct was

unacceptable. PFR File, Tab 1 at 18. In this regard, the appellant contends that

her undiagnosed mental disability was likely the cause of the behavior underlying

that prior discipline. Id. at 18-19. Prior discipline, however, may constitute

notice that an appellant has been warned about the type of conduct that an agency

deems to be unacceptable and serious. Diggs v. Department of Housing & Urban

Development, 114 M.S.P.R. 464, ¶ 10 (2010); Jinks v. Department of Veterans

Affairs, 106 M.S.P.R. 627, ¶ 25 (2007). To the extent that the appellant contests

the merits of the prior disciplinary actions, such a challenge is beyond the

Board’s limited scope of review. See Colon v. Department of Veterans Affairs,

73 M.S.P.R. 659, 666 (1997), superseded by rule on other grounds as recognized

by Jones v. Department of Energy, 120 M.S.P.R. 480, ¶¶ 5-10 (2013), aff’d,

589 F. App’x 972 (Fed. Cir. 2014); Bolling v. Department of the Air Force,

9 M.S.P.R. 335, 339-40 (1981) (limiting the Board’s review of a prior

disciplinary action to determining whether that action was clearly erroneous, if

the employee was informed of the action in writing, the action was a matter of

record, and the employee was permitted to dispute the charges before a higher

level of authority than the one that imposed the discipline). The appellant has

otherwise shown no error in the administrative judge’s determination that the

penalty of removal was reasonable. See ID at 61-64.

13
NOTICE OF APPEAL RIGHTS5

The initial decision, as supplemented by this Final Order, constitutes the

Boards 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: 

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 which option is most appropriate in any matter.

14
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

15
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

16
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.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 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. 

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 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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