                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DAWN D. MAYNOR,                                 DOCKET NUMBER
                 Appellant,                          PH-0752-14-0904-I-1

                  v.

     DEPARTMENT OF THE TREASURY,                     DATE: August 11, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Dawn D. Maynor, Darby, Pennsylvania, pro se.

           Ariya McGrew, Esquire, and Heather A. Southwell, New York, New York,
             for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed her removal appeal as untimely filed. Generally, we grant petitions
     such as this one only when: the initial decision contains erroneous findings of
     material fact; the initial decision is based on an erroneous interpretation of statute


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     or regulation or the erroneous application of the law to the facts of the case; the
     administrative 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.       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, 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).

                                      BACKGROUND
¶2         The appellant formerly was employed by the agency as a Tax Examining
     Technician until the agency removed her effective November 3, 2012.          Initial
     Appeal File (IAF), Tab 11 at 56.       Following her removal from service, on
     February 12, 2013, the appellant filed a formal complaint of discrimination with
     the agency alleging, inter alia, that her removal was due to disability
     discrimination and retaliation for her prior equal employment opportunity (EEO)
     activity. IAF, Tab 12 at 15-16. On February 7, 2014, the agency issued a final
     agency decision (FAD) finding no merit to the appellant’s claims. IAF, Tab 9
     at 11-28. The FAD was mailed to the appellant at two separate addresses and
     included a notice concerning her right to file a Board appeal within 30 days of
     receipt. Id. at 16‑17.
¶3        The appellant did not file her Board appeal until September 2014.         IAF,
     Tab 1.    Consequently, the administrative judge issued a timeliness order
     informing the appellant that her appeal appeared to be untimely filed and
     directing her to file evidence and argument to prove either that her appeal was
     timely filed or that good cause existed for her untimely filing. IAF, Tab 3. In
                                                                                          3

     response, the appellant asserted that, although she had notified the agency of a
     change in address, the agency mailed the FAD to a previous address, and she
     did not receive the FAD until August 12, 2014, after she contacted the agency
     regarding the status of her complaint and the agency emailed her a copy. IAF,
     Tab 8 at 1. She attached a copy of an August 12, 2014 email in which the agency
     sent her a copy of the FAD. Id. at 2.
¶4           The agency moved to dismiss the appeal as untimely arguing that the
     appellant’s bare assertion that it mailed the FAD to the incorrect address, without
     more, was insufficient to meet her burden, noting that she failed to identify what
     her correct address was or when she allegedly informed the agency of her address
     change. IAF, Tab 9 at 7. The agency further argued that, following its issuance
     of the FAD, the appellant continued to receive other correspondence from the
     agency at one of the addresses listed in the certificate of service for the FAD. Id.
     at 8.
¶5           The administrative judge dismissed the appeal as untimely filed without
     good cause for delay. IAF, Tab 22, Initial Decision (ID). The administrative
     judge found that the appellant provided no evidence in support of her bare,
     unsworn assertion that one or both of the addresses to which the agency mailed
     the FAD were invalid, or that she had previously notified the agency of her
     change of address.    ID at 3.    The administrative judge further found that the
     appellant had received two other FADs relating to her other complaints at one of
     the addresses listed in the certificate of service for the February 7, 2014 FAD,
     which she appealed to the Equal Employment Opportunity Commission (EEOC)
     in July 2014. 2   ID at 3.    Finally, the administrative judge found that, even
     assuming the appellant did not receive the FAD mailed on February 7, 2014, she
     was aware of its existence as of July 31, 2014, when she appealed another FAD

     2
       These two FADs inadvertently misspelled the appellant’s address by omitting the final
     letter of the street name. IAF, Tab 9 at 43, 55. The February 7, 2014 FAD at issue
     here, however, properly spelled the street name. Id. at 16, 56, 58.
                                                                                           4

     that referenced the February 7, 2014 FAD, and she failed to offer any explanation
     to establish she subsequently exercised due diligence in filing her Board appeal.
     ID at 4.
¶6         The appellant has filed a petition for review 3 in which she generally asserts
     that her appeal was timely filed under 5 C.F.R. § 1201.154(b). 4           Petition for
     Review (PFR) File, Tab 11 at 2-3.         The agency has opposed the appellant’s
     petition. PFR File, Tab 17.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶7         An employee who files a timely formal complaint of discrimination with her
     employing agency regarding a matter that is within the Board’s jurisdiction also
     may file an appeal with the Board. For such an appeal to be considered timely, it
     must be filed within 30 days after the employee receives the FAD.              5 C.F.R.
     § 1201.154(b)(1).    If an appellant fails to timely file her appeal, it will be
     dismissed as untimely filed absent a showing of good cause for the filing delay.
     5 C.F.R. § 1201.22(c).     To establish good cause, a party must show that she
     exercised due diligence or ordinary prudence under the particular circumstances

     3
       The appellant also filed a supplement to her petition for review, which we have
     considered. PFR File, Tab 14. The appellant filed additional pleadings on January 22,
     and 29, 2016, and February 2, 2016, which the Clerk of the Board rejected because the
     appellant did not comply with the Board’s regulation that required her to file a motion
     and obtain leave to submit additional pleadings. PFR File, Tabs 15-16; see 5 C.F.R.
     § 1201.114(a)(5). To the extent the appellant is now seeking leave to file these
     additional pleadings, PFR File, Tabs 18-19, we deny her motion because she has not
     explained the nature of or need for such pleadings.
     4
        To the extent the appellant asserts that her appeal was timely filed under the
     “exception to the 30-day filing rule” set forth in 5 C.F.R. § 1201.154(b)(2) because the
     FAD was not issued within 120 days after she filed her formal complaint, PFR File,
     Tab 11 at 3, such an argument was not raised below, and the Board need not consider it
     for the first time on review, see Banks v. Department of the Air Force, 4 M.S.P.R. 268,
     271 (1980). In any event, that provision only applies where the agency has not yet
     issued a FAD, which is not the case here. See 5 C.F.R. § 1201.154(b)(2) (“Once the
     agency resolves the matter or issues a final decision on the formal complaint, an appeal
     must be filed within 30 days after the appellant receives the agency resolution or final
     decision on the discrimination issue.”).
                                                                                           5

     of the case. Marcantel v. Department of Energy, 121 M.S.P.R. 330, ¶ 10 (2014).
     An appellant bears the burden of proof, by a preponderance of evidence,
     regarding the timeliness of her appeal. 5 C.F.R. § 1201.56(b)(2)(i)(B).
¶8         Here, the agency issued the FAD on February 7, 2014. IAF, Tab 9 at 11-28.
     The FAD contains a certificate of service indicating that, on that same date, the
     agency served the FAD on the appellant via first class and certified mail at two
     separate addresses in Darby, Pennsylvania. 5 Id. at 16. The Board has recognized
     a presumption that documents placed in the mail are received in 5 days when
     there is direct evidence, such as a certificate of service, establishing when a
     document was deposited in the mail. See, e.g., Butler v. Department of Veterans
     Affairs, 119 M.S.P.R. 112, ¶¶ 5, 10 (2013); Santos v. U.S. Postal Service,
     77 M.S.P.R. 573, 577 (1998); 5 C.F.R. § 1201.22(b)(3).
¶9         Although the appellant argues that she did not receive the February 7, 2014
     FAD until August 12, 2014, because the mailing addresses used by the agency
     were invalid, we agree with the administrative judge that she did not provide any
     evidence below to support her bare assertion. ID at 3. The appellant also has not
     provided any further information on review concerning the circumstances
     surrounding her alleged nonreceipt of the FAD, such as when her addresses
     changed or when she allegedly notified the agency of any address change. Nor
     does she challenge the administrative judge’s finding that, following the issuance
     of the February 7, 2014 FAD, the appellant received correspondence from the
     agency regarding other matters at one of the addresses listed in the certificate of
     service for the FAD. ID at 3.       Thus, the appellant’s vague, unsupported, and
     unsworn allegation that the decision letter was sent to the wrong address without
     further explanation fails to rebut the presumption of delivery and receipt or even
     raise a genuine factual dispute on the issue of timeliness.         See, e.g., Foust v.
     Department of the Treasury, 80 M.S.P.R. 477, ¶¶ 6-8 (1998).
     5
      One of these addresses is the same as the address listed by the appellant on her formal
     complaint of discrimination. IAF, Tab 9 at 16, Tab 12 at 15, 18.
                                                                                               6

¶10         Accordingly, we conclude that the administrative judge properly dismissed
      the appeal as untimely filed without good cause. 6

                       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



      6
        Because we find that the appellant failed to rebut the presumption of delivery and
      receipt of the agency’s February 7, 2014 FAD, we need not address whether she acted
      diligently in filing her Board appeal upon allegedly learning of her Board appeal rights
      at a later date. To the extent the administrative judge may have erred in finding that the
      appellant failed to establish that she acted diligently in filing her Board appeal once she
      learned she could do so, ID at 4, any such error did not prejudice the appellant’s
      substantive rights. See Gingrich v. U.S. Postal Service, 67 M.S.P.R. 583, 588 (1995)
      (stating that an appellant is not required to show that he exercised due diligence in
      attempting to discover his appeal rights, rather the question is whether he was diligent
      in filing an appeal after he learned he could do so); Panter v. Department of the
      Air Force, 22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory error that is not
      prejudicial to a party’s substantive rights provides no basis for reversal of an
      initial decision).
                                                                                 7

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.
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 U.S. 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. § 2000e-5(f) and
29 U.S.C. § 794a.




FOR THE BOARD:                           ______________________________
                                         Jennifer Everling
                                         Acting Clerk of the Board
Washington, D.C.
