                NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                  is not citable as precedent. It is a public record.

 United States Court of Appeals for the Federal Circuit

                                       05-3325

                                  LILLIAN B. LOGAN,

                                                       Plaintiff-Appellant,

                                              v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                       Defendant-Appellee.



                             ________________________

                             DECIDED: February 8, 2006
                             ________________________


Before BRYSON, GAJARSA, and DYK Circuit Judges.

PER CURIAM.

                                      DECISION

        Lillian Logan (“Ms. Logan”) appeals from the final decision of the Merit Systems

Protection Board (“Board”) dismissing her appeal of her removal as a secretary from the

Department of Education (“DOE”) as having been untimely filed without a showing of

good cause for delay. Logan v. Dep’t of Educ., M.S.P.B. No. DC-0752-05-0320-I-1

(June 17, 2005) (“Final Order”). We affirm.
                                    BACKGROUND

      On February 1, 2002, the DOE notified Ms. Logan that she would be removed

from her secretary position due to excessive absences and failure to follow leave

procedures. Ms. Logan was charged with ten such violations within the time period of

October 1, 2001 through November 2, 2001. Ms. Logan’s record reflects that she also

served a two-day suspension in March, 1991; a ten-day suspension in April, 1993; and

a ninety-day suspension in June, 2001 for similar disciplinary problems. Her removal

date was initially set for February 17, 2002 but was postponed to March 1, 2002. On

February 6, 2002, Ms. Logan filed a grievance with the DOE concerning her removal

pursuant to the Union’s negotiated grievance procedure. A final decision was rendered

by the DOE on February 22, 2002, denying her grievance and sustaining her removal.

      On April 12, 2002, Ms. Logan, after consulting a union representative, filed an

informal discrimination complaint with the Informal Dispute Resolution Center (“IDRC”)

requesting a reasonable accommodation.         Ms. Logan subsequently filed a formal

discrimination complaint with the DOE on June 4, 2002.         The DOE dismissed the

complaint, on the ground that it was barred by the petitioner’s previous grievance, filed

on February 6, 2002.

      Ms. Logan then appealed her dismissal to the Equal Employment Opportunity

Commission (“EEOC”). The EEOC questioned whether a discrimination claim should be

raised under the DOE’s grievance procedure and remanded her grievance to the DOE

on April 23, 2003. In later EEOC proceedings, it appeared that the collective bargaining

agreement with the DOE required that discrimination claims should be raised in the

grievance procedure.    The EEOC determined that because Ms. Logan elected to




05-3325                                    2
proceed through the grievance procedure, she could not file an Equal Employment

Opportunity complaint on the same matter.         Thus, it dismissed the discrimination

complaint as being barred by the prior grievance filing.      Ms. Logan appealed this

decision with the EEOC. The EEOC dismissed the appeal on January 24, 2005.

      Ms. Logan, on February 28, 2005, filed an appeal with the Board.                The

Administrative Judge (“AJ”) issued an initial decision on May 13, 2005 dismissing Ms.

Logan’s petition as untimely.   The AJ based the decision on 5 U.S.C. § 7121(e)(1)

(2005), which states that an employee, covered by a negotiated grievance procedure,

who has the right to challenge an adverse action, may do so by filing a grievance or an

appeal to the Board, but not both. (emphasis added). An exception to this process

exists, however, when a grievance has been filed before the effective date of removal,

as occurred here. Thus, Ms. Logan may have filed with the Board within the Board’s

normal 30 day filing deadline. 5 C.F.R. § 1201.22(b) (2006). The AJ also noted that

because the complaint alleges that the adverse action was premised on a discrimination

claim, Ms. Logan retained a limited right to seek Board review of the final grievance if

she requested the review within 35 days of the issuance of the February 22, 2002

grievance decision or within 30 days from her receipt of the decision by the Board, if she

received the decision more than five days after the date of issuance.         5 C.F.R. §

1201.154(d) (2006). The AJ’s initial decision became final when no petition for review

was filed with the Board. 5 C.F.R. § 1201.113 (2005).

      Ms. Logan now appeals the Board’s decision to determine whether her

complaint, although untimely filed, might be heard due to exigent circumstances.




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                                STANDARD OF REVIEW

          This court must affirm the decision of the Board unless the decision was:

“(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law; (2) obtained without procedures required by law, rule, or regulation having been

followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (2005);

Kievenaar v. Office of Personnel Mgmt., 421 F.3d 1359, 1362 (Fed. Cir. 2005). This

court has jurisdiction over “a petition to review a final order or final decision of the

Board.” 5 U.S.C. § 7703(b)(1) (2005).

                                      DISCUSSION

       Under 5 C.F.R. § 1201.154(d) (2006), Ms. Logan had 35 days from the issuance

of the February 22, 2002 decision on her grievance to file with the Board in order to be

granted a hearing. Hutchinson v. Dep’t of Labor, 91 M.S.P.R. 31, 33 (2001). To be

timely, Ms. Logan had to file her notice with the Board by March 29, 2002, not February

28, 2005. Because of the substantial delay of the filing, Ms. Logan appealed to the

Board for a determination as to whether there was a good cause for her failure to file

timely. Alonzo v. Dep’t of the Air Force, 4 M.S.P.R. 180, 182 (1980). Ms. Logan bears

the burden of proof to show good cause for an untimely filing.                   5 C.F.R.

§ 1201.56(a)(2)(ii) (2005).    This must be established by a preponderance of the

evidence. Id.

       There are several factors which must be considered by the Board before

deciding whether to allow a case to be filed untimely.       Alonzo, 4 M.S.P.R. at 184.

These factors consist of, but are not limited to

       “the length of the delay; whether appellant was notified of the time limit or
       was otherwise aware of it; the existence of circumstances beyond the



05-3325                                      4
       control of the appellant which affected his ability to comply with the time
       limits; the degree to which negligence by the appellant has been shown to
       be present or absent; circumstances which 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 which would
       result from waiver of the time limit.” Id.

       Ms. Logan argues that because of her mental condition she was unable to

comply with the time limits. She claims that due to the erroneous advice of her union

representative, she filed with the wrong agency and that she should not be barred by

the advisor’s mistakes. She also claims that even if she filed a petition with the wrong

agency, the petition should be deemed timely nonetheless. She also argues that she

was not notified of the proper appeal procedures.

       Ms. Logan first claimed that her depression caused her to be absent from work

and also caused her to file her untimely appeal to the Board.          She supports this

statement with disoriented evidence of doctor’s notes throughout her briefs.

       The Board may grant a waiver for an untimely filing if the appellant can establish

that the illness professed affected his/her ability to file.     Stout v. Merit Systems

Protection Board, 389 F.3d 1233, 1235 (Fed. Cir. 2004) citing Lacy v. Dep’t of the Navy,

78 M.S.P.R. 434, 437 (1998). To establish that the untimely filing was caused by an

illness, the party must: “(1) Identify the time period during which [s]he suffered from the

illness; (2) submit medical evidence showing that [s]he suffered from the alleged illness

during that time period; and (3) explain how the illness prevented [her] from timely filing

[her] appeal or a request for an extension of time.” Id. See generally Andrews v. Dep’t of

the Army, 76 M.S.P.R. 147, 151 (1997).

       Here, Ms. Logan only presents evidence she had been depressed from 1995

through February 6, 2002, the day on which she filed the grievance.            Ms. Logan,



05-3325                                     5
however, fails to submit supporting evidence showing that her illness during the relevant

time period, namely from February 22, 2002 through February 25, 2005, prevented her

from filing within the required time period.     In this case, Ms. Logan was given the

opportunity to present the evidence necessary to warrant consideration of good cause,

but she did not set forth any such evidence.          The Board considered the medical

information as presented by Ms. Logan and found it inadequate.

       Ms. Logan also blames her union representative’s advice to file with the IDRC on

April 12, 2002 for causing the delay in filing her petition of discrimination with the Board.

She argues that she acted reasonably in relying on the advice of her union

representative in not filing with the Board. This argument also fails. Although her union

advisor may have provided her with erroneous information, the advisor is viewed as her

agent and as such the union advisor’s actions bind her. Massingale v. Merit Systems

Protection Board, 736 F.2d 1521, 1523 (Fed. Cir. 1984). Therefore, she cannot rely on

the erroneous advice of the union advisor as good cause for the Board to review an

untimely petition.

       Furthermore, even if Ms. Logan did file the petition of discrimination with the

Board instead of the IDRC on April 12, 2002, it was still an untimely petition. It is well

established that if an employee timely files with the wrong agency, the filing could be

considered timely filed with the correct agency. Miller v. Dep’t of the Army, 987 F.2d

1552, 1556 (Fed. Cir. 1993). Under Miller, she would have had to file the petition with

the IDRC by March 29, 2002. She filed the petition on April 12, 2002, which was

beyond the 35 day filing period.




05-3325                                      6
      Lastly, Ms. Logan alleges that when the decision on her grievance dated

February 22, 2002 was issued, there was no information regarding the appeal

procedure presented at that time, causing her extensive delay in filing. In Lacy v. Dept’t

of the Navy, the Board determined that because the appellant was never informed of

the specific criteria as set forth in Andrews for securing a waiver on the Board’s time

limit on the basis of physical or mental illness, the appellant was denied the fair

opportunity to address the timeliness issue. 78 M.S.P.R. at 439. However, when Ms.

Logan received her removal notice on February 1, 2002, she received information of the

appeals process, including the name and phone number of an Employee Relations

Team staff member that she could contact for assistance. Because she was in fact

advised of her appropriate appeal rights, the Board denied her untimely filing.

      In light of the three year delay of Ms. Logan’s appeal and because she received

appeal information in a timely fashion, the Board did not abuse its discretion by

determining that Ms. Logan did not establish good cause by a preponderance of the

evidence. The decision of the Board is affirmed.

      No costs.




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