                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     FANNY MAK,                                      DOCKET NUMBER
                         Appellant,                  AT-0351-14-0767-I-1

                  v.

     TENNESSEE VALLEY AUTHORITY,                     DATE: March 16, 2016
                  Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Floyd Kilpatrick, Chattanooga, Tennessee, for the appellant.

           John E. Slater, Knoxville, Tennessee, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                      REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the agency’s action separating her from Federal service by reduction in
     force (RIF).      For the reasons discussed below, we GRANT the appellant’s
     petition for review, VACATE the initial decision, and REMAND the case to 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
                                                                                        2

     Atlanta Regional Office for further adjudication in accordance with this Remand
     Order.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant filed an appeal with the Board challenging the agency’s
     action separating her from Federal service by RIF, effective June 16, 2014.
     Initial Appeal File (IAF), Tab 1, Tab 4 at 28-30.         On August 4, 2015, the
     administrative judge issued an initial decision based on the written record 2
     affirming the agency’s action. IAF, Tab 19, Initial Decision (ID). She found
     that: (1) the agency invoked the RIF regulations for a legitimate reason, and
     properly applied them as to the appellant’s competitive level and competitive
     area; and (2) as an excepted-service employee, the appellant did not have
     assignment rights upon her release from her competitive level. ID at 2-7.
¶3        The appellant has filed a petition for review of the initial decision. Petition
     for Review (PFR) File, Tab 1. She challenges the validity of the RIF action,
     arguing that it was motivated by discrimination based on her race and age. Id.
     at 3. The agency filed a response in opposition to the petition for review, to
     which the appellant did not reply. PFR File, Tab 4. It argues that the appellant’s
     petition for review was untimely filed and that she has not shown good cause for
     her filing delay. Id. at 5-7. It further argues that the appellant’s discrimination
     claims should not be considered because she did not timely raise them below. Id.
     at 7-9.

     The appellant’s petition for review was untimely filed, but she has established
     good cause for her filing delay.
¶4        The administrative judge correctly advised the parties that the initial
     decision would become final on September 8, 2015, unless a petition for review
     was filed by that date. ID at 7; see 5 C.F.R. § 1201.114(e). The appellant’s
     2
       The appellant declined a hearing on her initial appeal form. IAF, Tab 1 at 3. She
     subsequently expressed her desire for a hearing, but thereafter withdrew that request
     during the close-of-record conference. IAF, Tab 7 at 3, Tab 12 at 1.
                                                                                        3

     petition for review was postmarked September 9, 2015. PFR File, Tab 1 at 12.
     Under the Board’s regulations, the date of filing by mail is determined by the
     postmark date. 5 C.F.R. § 1201.4(l). Accordingly, it appears that her petition
     for review was filed 1 day late.
¶5        The appellant argues that her petition was timely filed. PFR File, Tab 3
     at 1. Mr. Kilpatrick, the individual whom the appellant has designated on review
     to represent her, has provided a sworn statement that the administrative judge
     contacted him by telephone on August 3, 2015, and requested that he submit a
     designation of representative form signed by the appellant. PFR File, Tab 1 at 1,
     Tab 3 at 1, 3. He states that he had the appellant sign a designation form on the
     same day and that he and the appellant “sent that [form] to the Atlanta Regional
     Office.” PFR File, Tab 3 at 1. He asserts that, after doing so, he did not hear
     from the administrative judge. Id. He claims that he did not receive a copy of
     the initial decision until the appellant provided it to him on August 12, 2015. Id.
     The appellant contends that her petition for review was timely filed based on the
     date Mr. Kilpatrick received the initial decision. Id.
¶6        The appellant’s claim regarding when Mr. Kilpatrick received the initial
     decision does not establish that her petition for review was timely filed. The
     Board’s regulations plainly state that, if an appellant is represented, the deadline
     for filing a petition for review runs from either her or her representative’s receipt
     of the initial decision, whichever comes first.      5 C.F.R. § 1201.114(e).     The
     appellant was registered as an e-filer and therefore is deemed to have received
     the initial decision on August 4, 2015, the date it was sent to her by electronic
     mail. IAF, Tab 1 at 3, Tab 20; see 5 C.F.R. § 1201.14(m)(2). Thus, the deadline
     for filing, which began to run from the appellant’s receipt of the initial decision
     on August 4, 2015, was September 8, 2015.             See 5 C.F.R. § 1201.114(e).
     Therefore, we find that the petition for review was untimely filed.
¶7        Where a petition for review is untimely filed, the Board will waive the time
     limit for filing if the appellant shows good cause for her filing delay. Miller v.
                                                                                       4

     Department of the Army, 112 M.S.P.R. 689, ¶ 13 (2009); 5 C.F.R. § 1201.114(g).
     In determining whether an appellant has shown good cause, the Board may
     consider several nonexclusive factors, including:        the length of the delay;
     whether the appellant was notified of the time limit or was otherwise aware of it;
     the existence of circumstances beyond the control of the appellant that affected
     her ability to comply with the time limits; the degree to which negligence by the
     appellant has been shown to be present or absent; circumstances that show that
     any neglect involved is excusable neglect; a showing of unavoidable casualty or
     misfortune; and the extent and nature of the prejudice to the agency that would
     result from waiver of the time limit.        Barnes v. Merit Systems Protection
     Board, 625 F. App’x 996, 999 (Fed. Cir. 2015) (citing Herring v. Merit Systems
     Protection Board, 778 F.3d 1011, 1013-14 (Fed. Cir. 2015) (finding good cause
     for a 10-day delay)); Miller, 112 M.S.P.R. 689, ¶ 13. The Board may find good
     cause for an appellant’s untimely filing of a petition for review if her properly
     designated representative did not timely receive a copy of the initial decision.
     See   Channell   v.   U.S.   Postal   Service,   76 M.S.P.R. 630,   631-33   (1997)
     (determining that it was improper to penalize the appellant for failing to respond
     to a timeliness order that was not served on his designated representative);
     Farrell v. U.S. Postal Service, 70 M.S.P.R. 564, 565-67 (1996) (finding good
     cause to excuse a 7-day delay in filing a motion for attorney fees where the
     appellant’s attorney filed the fee motion on the same day he learned the initial
     decision had been issued).
¶8         There is no evidence in the record to contradict Mr. Kilpatrick’s sworn
     statement that the administrative judge instructed him to submit a designation of
     representative form and that he promptly complied with that instruction. He then
     acted diligently by filing the appellant’s petition for review within 30 days of his
     receipt of the initial decision.      Although the filing was 1 day beyond the
     deadline, this delay was minimal. See Barnes, 625 F. App’x at 999 (finding that
     the Board should have excused a 1-day delay in filing a petition for review
                                                                                           5

     because the delay was minimal and was due to the appellant’s counsel’s attempts
     to comply with the Board’s length of pleading limitations). Further, we discern
     no prejudice to the agency because it received an opportunity to respond to the
     appellant’s petition for review. PFR File, Tab 4. Accordingly, given the unique
     circumstances in this case, we find that the appellant has established good cause
     for her filing delay.

     We remand this appeal for the administrative judge to address the appellant’s
     discrimination claims.
¶9         In January 2015, Mr. Kilpatrick raised claims of race and age discrimination
     on the appellant’s behalf and requested a hearing regarding those claims. 3 IAF,
     Tab 15.     Although the administrative judge acknowledged receipt of that
     pleading in the initial decision, ID at 5 n.2, she did not adjudicate the appellant’s
     discrimination claims. See generally ID. On review, the appellant asserts that
     this was error. PFR File, Tab 1 at 3. We agree.
¶10        The administrative judge should have apprised the appellant of the
     applicable burdens of proving her discrimination claims, as well as the kind of
     evidence she was required to produce to meet her burden. See Wynn v. U.S.
     Postal Service, 115 M.S.P.R. 146, ¶ 13 (2010). Because she failed to do so, we
     must remand this appeal for her to afford the parties such notice and an
     opportunity to submit evidence and argument under the proper standard. See id.;
     Abakan v. Department of Transportation, 98 M.S.P.R. 662, ¶¶ 7-9 (2005)
     (remanding an appeal of a RIF action because the administrative judge failed to
     examine the appellant’s discrimination claims). The administrative judge should

     3
       As the agency points out, the appellant did not raise these claims prior to the end of
     the close-of-record conference in September 2014.            See 5 C.F.R. § 1201.24(b)
     (requiring an appellant to show good cause for raising claims or defenses for the first
     time after the conferences defining the issues in the case); IAF, Tab 12; PFR File,
     Tab 4 at 8. However, because the administrative judge later reopened the record in May
     2015, albeit for a limited purpose, IAF, Tab 16, she should have adjudicated the
     appellant’s discrimination claims, which relate directly to the agency’s burden of proof
     in this appeal.
                                                                                 6

determine whether the appellant wishes to have a hearing regarding her
discrimination claims and, if so, hold the requested hearing.      See Savage v.
Department of the Army, 122 M.S.P.R. 612, ¶¶ 45-46 (2015).         She thereafter
must address the merits of those claims, as they relate to the agency’s RIF
action, in a new initial decision. See Abakan, 98 M.S.P.R. 662, ¶ 10; Spithaler v.
Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980) (holding that an
initial decision must identify all material issues of fact and law, summarize the
evidence, resolve issues of credibility, and include the administrative judge’s
conclusions of law and his legal reasoning, as well as the authorities on which
that reasoning rests).

                                    ORDER
     For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.




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