                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     ANTHONY B. SARRATT,                             DOCKET NUMBER
                  Appellant,                         PH-0752-14-0550-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: February 3, 2015
                   Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Philip K. Miles, Esquire, State College, New York, for the appellant.

           Lori L. Markle, Esquire, Philadelphia, Pennsylvania, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER
¶1        The appellant has filed a petition for review of the initial decision, which
     dismissed the appellant’s mixed case removal appeal as untimely without good
     cause for the delay. Generally, we grant petitions such as this one only when:
     the initial decision contains erroneous findings of material fact; the initial


     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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).
                                                                                      2

     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 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. See 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, and based on the following points and authorities, 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 and AFFIRM
     the initial decision, which is now the Board’s final decision.            5 C.F.R.
     § 1201.113(b).
¶2        The appellant was a preference-eligible Sales, Services, and Distribution
     Associate for the agency. Initial Appeal File (IAF), Tab 5 at 19. The agency
     removed him for misconduct effective November 25, 2011. Id. at 19, 58-59. The
     decision letter informed the appellant of his review rights, including his Board
     appeal rights and his equal employment opportunity (EEO) complaint rights, as
     well as the time limits for pursuing those appeal rights.      Id. at 59-60.    On
     December 29, 2011, the appellant filed a formal EEO complaint concerning his
     removal. IAF, Tab 9, Exhibit 11.
¶3        At that time, the appellant had two other formal EEO complaints concerning
     two 7-day suspensions pending before an Equal Employment Opportunity
     Commission (EEOC) administrative judge.        On January 20, 2012, he filed a
     motion to consolidate all three complaints. Id., Exhibit 13. On May 4, 2012, the
     EEOC administrative judge granted the motion to consolidate for purposes of a
     hearing.   Id., Exhibit 16.   In the meantime, however, on April 23, 2012, the
     agency issued a final decision in the appellant’s removal complaint finding no
     discrimination and notifying the appellant of his right to file a Board appeal
                                                                                           3

     within 30 days of the date he received the decision. IAF, Tab 5 at 38-56. It was
     not until February 11, 2014, that the EEOC administrative judge dismissed the
     appellant’s request for a hearing on his removal complaint on the basis that it
     pertained to mixed-case subject matter and that any appeal rights from the final
     agency decision were to the Board. IAF, Tab 9, Exhibit 21. The appellant filed
     the instant Board appeal of his removal on February 25, 2014. IAF, Tab 1.
¶4         After notifying the appellant that his appeal appeared to be untimely,
     informing him of his burden regarding timeliness, and receiving evidence and
     argument on the issue, the administrative judge issued an initial decision
     dismissing the appeal as untimely filed without good cause for the delay. IAF,
     Tab 7, Tab 10, Initial Decision (ID) at 2, 12.             The administrative judge
     acknowledged the appellant’s argument that he was confused by the consolidation
     order and believed that his removal complaint was still proceeding through the
     EEO process despite the April 23, 2012 final agency decision. ID at 5-6; IAF,
     Tab 1 at 1, Tab 8 at 8-9.         However, she found that, notwithstanding the
     consolidation order, the appellant had been advised no fewer than four times
     throughout the process that he would have a right to a hearing only before the
     Board—not the EEOC—and that any appeal rights from the final agency decision
     would be to the Board. ID at 6-11; IAF, Tab 5 at 55-56, 59-60, Tab 9, Exhibits
     11, 14.     The administrative judge also found that the appellant’s motion to
     consolidate failed to notify the EEOC administrative judge that one of the
     complaints that he was seeking to consolidate was a mixed case. ID at 10-11.
     Considering these matters, along with the length of the filing delay, the
     administrative judge found that there was no good cause to waive the deadline. 2
     ID at 12.

     2
       The appellant’s union grieved his removal, and on November 7, 2013, an arbitrator
     denied the grievance. IAF, Tab 5 at 21-36. The administrative judge directed the
     parties to address the preclusive effect, if any, of that arbitration award. IAF, Tab 6.
     Ultimately, the administrative judge declined to reach the issue because she had decided
     the appeal on timeliness grounds. ID at 12 n.8. We likewise do not reach the issue of
                                                                                          4

¶5        The appellant has filed a petition for review, reiterating his arguments that
     his delayed filing was caused by his reasonable reliance on the EEOC
     administrative judge’s consolidation order and that he demonstrated due diligence
     by filing his Board appeal promptly after the EEOC administrative judge
     dismissed his hearing request. Petition for Review (PFR) File, Tab 1 at 7-8, 10.
     He also argues that his appeal should be considered timely under 5 U.S.C.
     § 7702(f), which provides that an appeal that is timely filed with the wrong
     agency shall be treated as having been timely filed with the proper agency. Id. at
     8-9. The agency has filed a response in opposition. PFR File, Tab 5.
¶6        We first address the issue of whether the instant appeal should be treated as
     timely under 5 U.S.C. § 7702(f). At the outset, we note that the appellant has
     raised this argument for the first time on petition for review without explaining
     why he did not raise it below.       See Banks v. Department of the Air Force,
     4 M.S.P.R. 268, 271 (1980) (the Board generally will not consider an argument
     raised for the first time in a petition for review absent a showing that it is based
     on new and material evidence not previously available despite the party’s due
     diligence). In any event, even considering this argument, we find that 5 U.S.C.
     § 7702(f) does not apply to this situation. The text of the statute is as follows:
           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). Under its plain terms, this section only applies to situations
     in which “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.”
     Id.; see Van Wersch v. Department of Health & Human Services, 197 F.3d 1144,


     whether that arbitration award precludes the Board from decid ing the merits of th is
     appeal or of any particular issues that this appeal presents.
                                                                                      5

     1148 (Fed. Cir. 1999) (statutory construction begins with the language of the
     statute itself). This did not occur here. The appellant undertook no act of filing
     after he received the final agency decision until he filed the instant Board appeal
     nearly 2 years later.   Instead, he did nothing, proceeding under the mistaken
     assumption that the EEOC would continue to process his claim. We find that the
     appellant’s inaction is not tantamount to filing an appeal of the final agency
     decision with the EEOC. The appellant argues that he “unquestionably submitted
     his removal challenge to the EEOC in a timely manner,” PFR File, Tab 1 at 9, but
     he appears to be referring to his formal EEO complaint and not to any timely but
     misdirected challenge to the final agency decision on that complaint.          The
     appellant’s initial timely filing of his EEO complaint does not afford him the
     protections of 5 U.S.C. § 7702(f) for filings that he neglected to make during
     subsequent stages of the appeals process.
¶7        Second, we address the issue of whether the appellant showed good cause
     for his filing delay.   We agree with the administrative judge that the filing
     deadline in this appeal was 30 days after the appellant received the April 23, 2012
     final agency decision, i.e., approximately May 28, 2012. ID at 10; IAF, Tab 5 at
     38-56; see 5 C.F.R. § 1201.154(b); see also Butler v. Department of Veterans
     Affairs, 119 M.S.P.R. 112, ¶ 5 (2013) (documents placed in the mail are presumed
     to be received in 5 days). Thus, the appellant’s February 25, 2014 Board appeal
     was untimely by 21 months.        Apart from his argument regarding 5 U.S.C.
     § 7702(f), discussed above, the appellant does not dispute this finding.
¶8        Rather, the appellant argues, as he did below, that his filing delay was
     caused by his reasonable reliance on the EEOC administrative judge’s
     consolidation order stating that he would receive further process from the EEOC
     with respect to his removal complaint. PFR File, Tab 1 at 7-8, 10. We agree with
     the appellant that the consolidation order implies that the EEOC would conduct a
     hearing on all three of his complaints, including his removal complaint, and that a
     reasonable person might be mislead by this order under some circumstances.
                                                                                6

IAF, Tab 9, Exhibit 16; see Forst v. Office of Personnel Management,
97 M.S.P.R. 142, ¶ 7 (2004) (an appellant’s confusion may be taken into account
when determining whether there is good cause for an untimely filing). However,
we find that the appellant himself was the ultimate cause of any confusion
because the EEOC administrative judge’s order was based on affirmatively
misleading information that the appellant supplied. Specifically, the appellant
told the EEOC administrative judge that his removal complaint concerned a
notice of proposed removal, which is an action otherwise unappealable to the
Board and would not be a basis for a mixed case. Id., Exhibit 13 at 5-6; see
Lethridge v. U.S. Postal Service, 99 M.S.P.R. 675, ¶ 13 (2005) (the Board lacks
jurisdiction under 5 U.S.C. chapter 75 over adverse action proposals); 29 C.F.R.
§ 1614.302(a)(1) (a mixed case complaint is a complaint of employment
discrimination filed with a federal agency related to or stemming from an action
that can be appealed to the Board). In addition, the appellant had already been
informed twice before he filed his motion to consolidate that there would be no
further proceedings before the EEOC after the agency issued its final decision.
IAF, Tab 5 at 59-60, Tab 9, Exhibit 11. There is no evidence that the EEOC
administrative judge became aware of the true nature of the appellant’s complaint
until the agency so informed her on August 26, 2013. IAF, Tab 9, Exhibit 17 at
8. Thus, we find no basis to conclude that the EEOC administrative judge misled
the appellant; rather, it was the appellant who misled the EEOC administrative
judge.   We find that confusion that the appellant himself caused does not
constitute good cause for his delayed filing in this appeal.       See Alonzo v.
Department of the Air Force, 4 M.S.P.R. 180, 184 (1980) (to establish good cause
for the untimely filing, a party must show that he exercised due diligence or
ordinary prudence under the particular circumstances of the case). Considering
that the appellant was represented by an attorney throughout this process, that
notwithstanding the consolidation order, he was on clear notice of his options for
appealing the final agency decision and the time limits for doing so, and that the
                                                                                7

21-month filing delay was excessive, we agree with the administrative judge that
the appellant has not shown good cause to waive the filing deadline. ID at 11-12;
see generally Moorman v. Department of the Army, 68 M.S.P.R. 60, 62-63 (1995)
(factors that the Board will consider in determining whether there is good cause
to waive a filing deadline), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      You have the right to request 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
                            Washington, 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
file, be very careful to file on time.
                                                                                    8

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 action 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 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. § 2000e5(f) and
29 U.S.C. § 794a.




FOR THE BOARD:                             ______________________________
                                           William D. Spencer
                                           Clerk of the Board
Washington, D.C.
