Whittington v. Merit Systems Protection Bd.

• Decision Date: 29 March 1996
• Citation: 80 F.3d 471
• Parties: 70 Fair Empl.Prac.Cas. (BNA) 726 Danise J. WHITTINGTON, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent. 95-3587.
• Court: U.S. Court of Appeals — Federal Circuit

Page 471

80 F.3d 471

70 Fair Empl.Prac.Cas. (BNA) 726

Danise J. WHITTINGTON, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

95-3587.

United States Court of Appeals, Federal Circuit.

March 29, 1996.

Appealed from: Merit Systems Protection Board.

Danise J. Whittington, Roanoke, Virginia, submitted pro se.

Melissa Mehring, Merit Systems Protection Bd., Washington, DC, submitted for respondent.

Before NEWMAN, Circuit Judge, SMITH, Senior Circuit Judge and CLEVENGER, Circuit Judge.

EDWARD S. SMITH, Senior Circuit Judge.

Decision

Danise J. Whittington petitions for review of the final decision of the Merit Systems Protection Board ("Board"), Docket No. PH-0752-95-0171-I-1 and PH-0752-95-0272-I-1, dismissing her appeal as untimely filed. ¹ Because the Board failed to apply the proper legal standard or make sufficient factual findings relevant to Ms. Whittington's mixed case ² appeal, we vacate and remand.

Facts

Ms. Whittington was removed from her position with Veterans Affairs ("VA"), effective November 5, 1993. Ms. Whittington met with a VA equal employment opportunity ("EEO") counselor on the effective date of her removal alleging her removal was racially motivated. The EEO counselor advised Ms. Whittington that she could either file a formal EEO complaint or file an appeal with the Board, but not both. The record is unclear regarding subsequent events other than that Ms. Whittington ultimately filed an appeal with the Equal Employment Opportunity Commission ("EEOC"). On October 11, 1994, EEOC dismissed the appeal because it cannot initially hear mixed case appeals. Ms. Whittington then filed her first appeal to the Board on November 23, 1994, over a year after her removal. The Board ordered Ms. Whittington to show either her appeal was timely or there was good cause for her untimeliness. Ms. Whittington explained that neither the EEO counselor nor the EEOC judge informed her that her mixed case could only be heard by the Board, and not by EEOC. On April 21, 1995, the Board issued an initial decision dismissing Ms. Whittington's appeal as untimely filed pursuant to the 20 day limit of 5 C.F.R. § 1201.22(b) (1993) . ³ The Board found Ms. Whittington was given proper notice, the filing delay was substantial, and she did not exercise due diligence or ordinary prudence under the circumstances. This initial decision became the final decision of the Board because neither party filed a petition for review by the full Board. 5 C.F.R.s 1201.113.

Standard of Review

This court reviews a Board decision under a narrow standard, and we must affirm the decision unless it is (i) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; (ii) obtained without following procedures required by law, rule or regulation; or (iii) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1994); Walls v. Merit Sys. Protection Bd., 29 F.3d 1578, 1581 (Fed.Cir.1994); Miller v. Department of the Army, 987 F.2d 1552, 1554 (Fed.Cir.1993).

Appealing a Mixed Case to the Board

The statutory and regulatory procedure for mixed cases permit an employee to initiate review of an alleged discriminatory personnel action by either (1) filing a formal EEO complaint with her agency or (2) filing an appeal with the Board, but not both. 5 U.S.C. §§ 7702(a)(1) and (a)(2); 5 C.F.R. § 1201.154(a) (Board regulation regarding timely filing of mixed case appeals); 29 C.F.R. § 1614.302(b) (EEOC regulation regarding mixed case complaints); Miller, 987 F.2d at 1554. This initial election of a forum for review invokes different procedural time limits for ultimately filing an appeal with the Board depending on whether a formal EEO complaint has been filed with the agency and, if so, whether the complaint has been resolved. 5 C.F.R. §§ 1201.154(a) and (b). Board regulations facilitate this procedural inquiry by specifically requiring an employee to state (1) whether she filed a formal discrimination complaint or a grievance with any agency and, if so, (2) the date she filed the complaint and (3) any action the agency took in response. 5 C.F.R. § 1201.153(a)(2) (Contents of appeal). An employee complies with this requirement if she completes the Board's Appeal Form which inquires,

32.b) Have you filed a formal discrimination complaint with your agency or any other agency concerning the matter which you are seeking to appeal? [ ] Yes (attach a copy) [ ] No.

32.c) If yes, place filed (agency, number and street, city, state, and ZIP code)

32.d) Date filed (month, day, year)

32.e) Has a decision been issued? [ ] Yes (attach a copy) [ ] No.

5 C.F.R. Part 1201, Appendix I (Optional Form 283) (emphasis in original); 5 C.F.R. § 1201.153(b) (Use of form).

If an employee elects to directly file a mixed case appeal with the Board without first filing a formal EEO complaint with her agency, the appeal must be filed within 20 days (now 30 days) after the effective date of the personnel action being appealed. 5 C.F.R. § 1201.154(a). However, if an employee elects to file first a formal EEO complaint with her agency, the time limit for filing an appeal with the Board depends on whether the formal EEO complaint has been resolved. Board regulation 5 C.F.R. § 1201.154(b) provides,

If the appellant has filed a timely formal complaint of discrimination with the agency:

(1) An appeal must be filed within 20 days after the appellant receives the agency resolution or final decision on the discrimination issue; or

(2) If the agency has not resolved the matter or issued a final decision on the formal complaint within 120 days, the appellant may appeal the matter directly to the Board at any time after the expiration of 120 calender days.

5 C.F.R. § 1201.154(b); 29 C.F.R. §§ 1614.302(d)(1) . ⁴ Therefore, if there is an agency resolution or final decision on the discrimination issue, the employee must file an appeal with the Board within 20 days (now 30 days) after receiving the resolution or final decision. Felder v. United States Postal Serv., 68 M.S.P.R. 312, 313 (1995); Henderson v. Department of the Treasury, 61 M.S.P.R. 61, 64 (1994) ("Only after the appellant receives the agency resolution or final decision on the discrimination issue is she then subject to filing her appeal within 20 days."). Otherwise, if there has been no agency resolution or final decision, the employee "may apply directly to the Board at any time after the expiration of 120 calendar days." Henderson, 61 M.S.P.R. at 64 (Finding an appeal was timely, notwithstanding it was filed nearly two years after the adverse personnel action, where there was "no record evidence that the agency has issued a final decision on the discrimination matter, and the agency stated that it has not done so.").

The Board Failed to Consider the Mixed Case Filing Time Limits

The Board erred as a matter of law by not considering the timeliness of Ms. Whittington's appeal pursuant to 5 C.F.R. § 1201.154, which specifically applies to mixed cases, instead of § 1201.22(b) which would have applied were this not a mixed case. This error alone is not fatal to the Board's decision because the legal standards of the two provisions provide similar 20 day time limits if Ms. Whittington has not filed a formal discrimination complaint with VA. Cf., 5 C.F.R. § 1201.154(a) (Either file timely complaint with agency or "file an appeal with the Board within 20 days after the effective date of the agency action being appealed.") and 5 C.F.R. § 1201.22 ("An appeal must be filed during the period beginning on the day after the effective date of the action being appealed and ending 20 days after the effective date."). This court has previously stated that, "We may ... where appropriate, affirm the Board on grounds other than those relied upon in rendering its decision, when upholding the Board's decision does not depend upon making a determination of fact not previously made by the Board." Killip v. Office of Personnel Management, 991 F.2d 1564, 1568-69 (Fed.Cir.1993). However, as discussed below, we could not apply § 1201.154(a) without making further factual findings such as whether Ms. Whittington filed a formal complaint with VA. Therefore, this case should be remanded to the Board to make relevant factual findings and apply the proper legal standards.

The Board Failed to Consider the Mixed Case Savings Provision

In finding Ms. Whittington untimely filed her appeal on November 23, 1994, the Board erred as a matter of law by failing to consider 5 U.S.C. § 7702(f), the statutory savings provision for erroneous filings in mixed cases. The statute governing the filing of mixed case appeals provides that,

In any case in which an employee is required to file any action, appeal, or petition under this section and the employee timely files the action, appeal, or petition with an agency other than the agency with which the action, appeal, or petition is to be filed, the employee shall be treated as having timely filed the action, appeal, or petition as of the date it is filed with the proper agency.

5 U.S.C. § 7702(f). This court has interpreted the statute broadly, stating that "irrespective of the cause for error ... [a]ll that is required to invoke section 7702(f) is that an appeal be timely filed with the wrong agency." Miller, 987 F.2d at 1555. Therefore, if Ms. Whittington erroneously filed her appeal with EEOC within the time limit for filing with the Board, her appeal is considered timely filed with the Board. Davis v. Department of the Army, 57 M.S.P.R. 203, 208 (1993) (An appeal of an arbitrator's sustaining an agency's removal of an employee "was timely filed with the Board as of the date it was timely, albeit mistakenly, filed with the EEOC."); See also, Means v. Department of Labor, 60 M.S.P.R. 108, 111-12 (1993) (Good cause exists for waiving filing deadline where appeal was erroneously filed with EEOC notwithstanding employee's failing to establish the appeal was filed with EEOC within...