                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     CAT PORTAL,                                      DOCKET NUMBER
                         Appellant,                   DC-0752-14-0225-I-1

                  v.

     DEPARTMENT OF LABOR,                             DATE: February 27, 2015
                 Agency.



                  THIS ORDER IS NO NPRECEDENTIAL 1

           Cat Portal, Arlington, Virginia, pro se.

           Katherine Brewer, Washington, D.C., for the agency.


                                           BEFORE

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


                                      REMAND ORDER
¶1        The appellant has filed a petition for review of the initial decision, which
     dismissed her removal appeal as untimely filed without good cause shown for the
     delay. For the reasons discussed below, we GRANT the petition for review and



     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     REMAND the case to the regional office for further adjudication in accordance
     with this Order.

                                      BACKGROUND
¶2        Effective August 8, 2011, the agency removed the appellant from her
     Computer Assistant position with the Bureau of Labor Statistics for failure to
     follow leave requesting procedures and absence without leave. Initial Appeal File
     (IAF), Tab 7 at 73-75. In its August 5, 2011 decision letter, the agency informed
     the appellant that she had the right to appeal the decision to the Board or to grieve
     the decision under the applicable collective bargaining agreement, but not both.
     Id. at 74. The agency also notified the appellant of her right to file an equal
     employment opportunity (EEO) complaint with the agency if she was claiming
     discrimination. Id. at 75.
¶3        On November 3, 2011, the appellant’s union filed a grievance of the
     removal action, which proceeded to arbitration.       IAF, Tab 7 at 68-70.     After
     holding a hearing, the arbitrator issued a decision on December 10, 2012,
     dismissing the grievance as untimely. Id. at 47-66.
¶4        On January 10, 2013, the appellant initiated the EEO process by contacting
     the agency’s Civil Rights Center and filing an informal EEO complaint regarding
     her removal, alleging that the agency removed her based on disability
     discrimination and in reprisal for her prior EEO activity. See IAF, Tab 7 at 14,
     43-45; Tab 15 at 18. She subsequently filed a formal EEO complaint, which the
     agency received on March 1, 2013. IAF, Tab 7 at 41; Tab 15 at 18.
¶5        By letter dated May 7, 2013, the agency notified the appellant that it had
     determined that her EEO complaint was timely and had accepted it for
     investigation. IAF, Tab 15 at 12 n.1. In its letter, the agency explained that it
     had deemed the appellant’s EEO complaint timely because the Equal Employment
     Opportunity Commission (EEOC) has found that “when a grievance on the same
     matter is found to be untimely[,] … the claim can be pursued within the Agency’s
                                                                                       3

     EEO process and the timeframe for raising the claim begins anew when the
     decision upon the grievance is received by the complainant.” Id. (citing Hoffman
     v. Federal Deposit Insurance Corporation, EEOC Appeal No. 01982239, 1999
     WL 146642 at *2 (Mar. 3, 1999), citing Chai v. National Aeronautics & Space
     Administration, EEOC Appeal No. 01953902, 1998 WL 422036 (July 10, 1998));
     see IAF, Tab 15 at 20-28. The agency adjudicated the appellant’s EEO complaint
     on the merits and issued a final decision (FAD) on October 25, 2013, finding no
     discrimination and advising the appellant of her right to appeal the decision to the
     Board. IAF, Tab 7 at 14-25.
¶6        The appellant filed an appeal with the Board by electronic submission on
     November 22, 2013. IAF, Tabs 1, 8. By letter dated November 26, 2013, the
     Board rejected the appellant’s November 22, 2013 filing because she did not
     identify what action she was appealing or name the agency against which she was
     filing the appeal. IAF, Tab 1. In its letter, the Board informed the appellant that
     she could correct these deficiencies and refile her appeal within ten days of its
     letter. Id. The appellant refiled her appeal on December 4, 2013. IAF, Tab 2.
¶7        The administrative judge issued a timeliness order in which she stated that
     “[f]or the purposes of calculating timeliness the appellant filed her appeal
     November 26, 2013.”       IAF, Tab 5.     The administrative judge ordered the
     appellant to file evidence and argument showing that she filed her appeal on time
     or that good cause existed for the filing delay. Id. In response, the appellant
     submitted documentation showing that she filed an appeal with the Board on
     November 22, 2013. IAF, Tab 8.
¶8        The administrative judge then conducted a telephonic status conference
     with the parties.   See IAF, Tab 13.      In her written summary of the status
     conference, the administrative judge stated that this appeal appeared to be timely
     because it appeared that the appellant filed her appeal on November 22, 2013,
     less than 30 days after the agency issued the FAD. See IAF, Tab 13 at 1. The
     administrative judge noted, however, that the agency argued that the appellant’s
                                                                                         4

      “appeal to the EEO office was untimely, as it was filed 17 months after the
      effective date of her removal on August 8, 2011.” Id. The administrative judge
      explained that she did not find that the Board would consider the appellant’s
      Board appeal untimely in light of the fact that the agency in its FAD did not
      dismiss the appellant’s EEO complaint as untimely, but, rather, adjudicated it on
      the merits. Id. The administrative judge provided the agency an opportunity to
      submit supporting legal authority and argument for its position. Id. at 2.
¶9         In response, the agency argued that the Board should not defer to its
      determination that the appellant’s EEO complaint was timely for two reasons.
      IAF, Tab 15 at 7-9. First, the agency argued, the EEOC precedent that guided the
      agency in reaching that determination is “unsupportable” because it is based on
      an incorrect interpretation of the forum election provisions of 5 U.S.C. § 7121(d)
      and is contrary to 5 U.S.C. § 7702(f), the savings clause of the mixed case statute.
      Id. at 7-8, 9. The agency further argued that, although the Board must defer to
      the EEOC on matters of substantive discrimination law, it does not defer to the
      EEOC on matters of civil service law, and the EEOC precedent on which the
      agency relied in determining that the appellant’s EEO complaint was timely
      concerns a matter of civil service law. Id. at 8.
¶10        Without holding the requested hearing, the administrative judge issued an
      initial decision finding that the Board has jurisdiction over the appeal and
      dismissing it as untimely filed. 2 IAF, Tab 28, Initial Decision (ID) at 1, 3, 8. The
      administrative judge rejected the agency’s determination that the appellant’s EEO
      complaint was timely, finding instead that her EEO complaint was untimely filed
      because she did not contact the agency’s EEO counselor within 45 days of the
      alleged discriminatory action (i.e., her removal), as required by 29 C.F.R.

      2
        The administrative judge properly found that the untimely filing of the grievance
      precluded it from being considered a valid election under 5 U.S.C. § 7121(e)(1). ID
      at 3. While it appears incongruous to give someone who has improperly invoked one
      remedial scheme the benefit of another remedial scheme, we are constrained by the
      relevant statutory language.
                                                                                           5

      § 1614.105.      ID at 4-5.     In making this finding, the administrative judge
      acknowledged that the EEOC has held that, when a grievance is dismissed as
      untimely, a complainant is not precluded from filing an EEO complaint that
      would otherwise be barred by time. ID at 5 (citing Ball v. U.S. Postal Service,
      EEOC Appeal No. 01924256, 1994 WL 1841135 (Jan. 31, 1994)); see IAF,
      Tab 15 at 29-33.      The administrative judge found, however, that the EEOC’s
      position on this issue is not supported by any law, rule or regulation and, thus,
      is not entitled to deference.     ID at 5-6.   In addition, the administrative judge
      found that the Board need not defer to the EEOC on this issue because the time
      limit for filing a mixed case or appeal is an issue of civil service law, not
      discrimination law. ID at 5-6.
¶11           Having found that the appellant’s EEO complaint was untimely filed, the
      administrative judge then considered whether the instant appeal is timely under
      5 C.F.R. § 1201.22, which requires that an appeal be filed no later than 30 days
      after the effective date, if any, of the action being appealed, or 30 days after the
      date of receipt of the agency’s decision, whichever is later.         ID at 6-8.   The
      administrative judge found that the appellant filed her appeal 807 days late, as she
      was removed on August 8, 2011, but did not file her appeal until November 22,
      2013.     ID at 7 (citing IAF, Tab 1, Tab 7 at 73-75, Tab 8).      The administrative
      judge found that, even if the appellant did not receive the agency’s decision until
      November 3, 2011, as she claimed on her grievance form, the appeal was
      760 days late. ID at 7; see IAF, Tab 7 at 69-70. She also found that the appellant
      failed to show good cause for the untimely filing of her appeal. ID at 7-8.
      Accordingly, the administrative judge dismissed the appeal as untimely filed
      without a showing of good cause for the delay. ID at 8.
¶12           The appellant has filed a petition for review of the initial decision. Petition
      for Review (PFR) File, Tab 1. The agency has filed a response in opposition to
      the petition for review. PFR File, Tab 3. The appellant has filed a reply to the
      agency’s response. PFR File, Tab 5.
                                                                                       6

                                          ANALYSIS
      The administrative judge should have deferred to the agency’s determination that
      the appellant’s EEO complaint was timely.
¶13        It is well settled that the Board defers to the employing agency’s and to the
      EEOC’s determinations regarding the timeliness of discrimination complaints.
      See Cloutier v. U.S. Postal Service, 89 M.S.P.R. 411, ¶ 6 (2011) (citing Black v.
      Office of Housing and Urban Development, 66 M.S.P.R. 283, 287 (1995); Vess v.
      Department of the Air Force, 54 M.S.P.R. 578, 580 (1992); and Nabors v. U.S.
      Postal Service, 31 M.S.P.R. 656, 660 (1986), aff’d, 824 F.2d 978 (Fed. Cir. 1987)
      (Table)).   As noted above, the agency determined that the appellant’s EEO
      complaint was timely and issued a FAD denying her complaint on the merits.
      IAF, Tab 7 at 14-25; Tab 15 at 12-14. Accordingly, we find that the appellant’s
      EEO complaint was timely filed.

      The appellant’s Board appeal is timely.
¶14        When, as here, an appellant has timely filed a formal mixed case EEO
      complaint with her agency prior to filing a Board appeal, the timeliness of the
      Board appeal is analyzed under 5 C.F.R. § 1201.154. Augustine v. Department of
      Justice, 100 M.S.P.R. 156, ¶ 7 (2005). Under 5 C.F.R. § 1201.154(b)(1), (2), if
      an appellant first timely files a formal mixed case complaint with her agency, she
      must then file a Board appeal within 30 days after she receives the agency
      resolution or final decision on the discrimination issue, or, if the agency has not
      resolved the matter or issued a final decision on the formal complaint within
      120 days, she may appeal the matter directly to the Board at any time after the
      expiration of 120 days. Id., ¶ 9.
¶15        As noted above, the agency issued the FAD finding no discrimination on
      October 25, 2013, and the appellant filed this appeal on November 22, 2013.
      IAF, Tab 1, Tab 7 at 25, Tab 8. Therefore, this appeal was timely filed under
      5 C.F.R. § 1201.154(b)(1).
                                                                                7

                                          ORDER
¶16        For the reasons discussed above, we REMAND this case to the regional
      office for further adjudication in accordance with this Remand Order.




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