                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SHARON D. DOUGLAS,                              DOCKET NUMBER
                  Appellant,                         CH-0752-15-0330-I-1

                  v.

     DEPARTMENT OF THE TREASURY,                     DATE: March 1, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Melford V. McCormick, Kansas City, Missouri, for the appellant.

           Bridgette M. Gibson, Esquire, Dallas, Texas, 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 involuntary resignation appeal as untimely filed without good cause
     shown for the delay. 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 or regulation or 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. 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, 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        In a May 29, 2014 decision letter, the agency informed the appellant that
     she would be removed from her position effective June 6, 2014. Initial Appeal
     File (IAF), Tab 6 at 7. The decision letter informed the appellant of her right to
     appeal the action to the Board and explained that, to be timely, any such appeal
     must be filed no later than 30 calendar days after the effective date of the action
     being appealed, or no later than 30 days after her receipt of the decision letter,
     whichever was later. Id. at 7-8. Before the effective date of her removal, on June
     4, 2014, the appellant and the agency entered into a settlement agreement in
     which, among other things, the agency agreed to hold the appellant’s removal
     action in abeyance, and the appellant agreed to voluntarily resign effective
     June 13, 2014. Id. at 12-14.
¶3        According to the agency, on or about August 4 and August 12, 2014, the
     appellant contacted agency counsel regarding several documents she had faxed
     “purporting to be her appeal of the resignation action.” Id. at 2; see id. at 15. In
     an August 13, 2014 letter, agency counsel advised the appellant that her office
     had received the appellant’s facsimile but that it was unclear whether the
     appellant had also sent the documents to the Board.         Id. at 15.   The letter
                                                                                       3

     explained that, to initiate a Board appeal, the appellant must file her appeal with
     the Board and that sending documents to the agency did not constitute the filing
     of a Board appeal. Id. The letter referred the appellant to the May 29, 2014
     rescinded decision letter for instructions on how to file a Board appeal. Id.
¶4         On March 12, 2015, the appellant filed a Board appeal challenging the
     removal action and her resignation on the grounds that the agency gave her
     “incorrect and misleading information” and imposed on her “an [ultimatum] to be
     terminated or to go with a clean [Standard Form (SF)] 50.”          Id. at 3.   The
     administrative judge issued an order on timeliness informing the appellant that
     her appeal appeared to be untimely filed by 242 days and ordering her to file
     evidence and argument showing either that her appeal was timely filed or that she
     had established good cause for missing the filing deadline.       IAF, Tab 3.    In
     response, the appellant conceded that her appeal was untimely filed but asserted
     that good cause existed for the delay.      IAF, Tab 9 at 1-3.    Specifically, she
     explained that she was in a “depressed, dazed and confused state of mind” after
     enduring the agency’s harassing treatment and that, due to this state of mind, she
     filed her appeal with the “wrong office.” Id. at 2, 7-8.
¶5        Without holding the requested hearing, the administrative judge issued an
     initial decision dismissing the appeal as untimely filed without good cause shown
     for the delay. IAF, Tab 14, Initial Decision (ID). The administrative judge found
     that the agency provided the appellant “straightforward and accurate” instructions
     regarding her Board appeal rights in the May 29, 2014 decision letter and that, in
     not following those instructions, the appellant failed to exercise due diligence or
     ordinary prudence under the circumstances. ID at 4-6. She also found that the
     appellant failed to prove that her medical condition prevented her from timely
     filing an appeal or a request for an extension. ID at 5-6.
¶6        The appellant has filed a timely petition for review of the initial decision,
     and the agency has responded in opposition to the petition for review. Petition
     for Review (PFR) File, Tabs 1, 3.
                                                                                        4

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶7         Generally, an appeal must be filed with the Board no later than 30 calendar
     days after the effective date of the challenged action, or 30 calendar days after the
     date the appellant received the agency’s decision, whichever is later. 5 C.F.R.
     § 1201.22(b). An appeal that is not filed within the applicable time limit will be
     dismissed as untimely unless the appellant shows good cause for the delay.
     5 C.F.R. § 1201.22(c).    To establish good cause for the untimely filing of an
     appeal, a party must show that she exercised due diligence or ordinary prudence
     under the particular circumstances of the case. Alonzo v. Department of the Air
     Force, 4 M.S.P.R. 180, 184 (1980). To determine if an appellant has shown good
     cause, the Board will consider the length of the delay, the reasonableness of her
     excuse and her showing of due diligence, whether she is proceeding pro se, and
     whether she has presented evidence of the existence of circumstances beyond her
     control that affected her ability to comply with the time limits or of unavoidable
     casualty or misfortune that similarly shows a causal relationship to her inability
     to timely file her petition. Moorman v. Department of the Army, 68 M.S.P.R. 60,
     62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table). The appellant bears
     the burden of proof as to timeliness, which she must establish by preponderant
     evidence. 5 C.F.R. § 1201.56(b)(2)(i)(B).
¶8         Here, it is undisputed that the appellant received notice of her Board appeal
     rights in the removal decision letter on May 29, 2014, and that she resigned
     effective June 13, 2014, pursuant to the settlement agreement resolving the
     removal action.    IAF, Tab 6 at 8-10, 12.        Thus, any Board appeal of the
     resignation must have been filed no later than July 15, 2014.         See 5 C.F.R.
     § 1201.22(b)(1). The appellant, however, did not initiate her Board appeal until
     March 12, 2015—nearly 8 months past the filing deadline. See id.; IAF, Tab 1.
                                                                                              5

      Notwithstanding the appellant’s pro se status, 2 a delay of nearly 8 months is
      significant. See, e.g., Dow v. Department of Homeland Security, 109 M.S.P.R.
      633, ¶ 8 (2008) (stating that a pro se appellant’s delay of more than 1 month is
      significant).
¶9          As the administrative judge correctly explained, the appellant received
      explicit and accurate instructions in the May 29, 2014 decision letter informing
      her of her Board appeal rights and explaining how to file a Board appeal. ID
      at 4-6; IAF, Tab 6 at 7-9. Further, upon receipt of the appellant’s facsimile in
      August 2014, agency counsel informed the appellant in writing that sending
      documents to the agency did not constitute the filing of a Board appeal and
      referred her again to the May 29, 2014 decision letter for information on how to
      file a Board appeal.     ID at 5; IAF, Tab 6 at 15.         Notwithstanding the clear
      instructions she received in the decision letter and from agency counsel, the
      appellant asserts on review that her submission to agency counsel should be
      considered a “constructive filing” with the Board. PFR File, Tab 1 at 4.
¶10         Generally, an appellant’s failure to follow explicit filing instructions does
      not constitute good cause for any ensuing delay.            Sanford v. Department of
      Defense, 61 M.S.P.R. 207, 209 (1994). Nonetheless, the Board has established an
      exception to this general rule. Specifically, the Board has held that it will find
      good cause for an untimely filed appeal if an appellant files the appeal with the
      employing agency within the regulatory filing time limit and then files with the
      Board as soon as she learns of her mistake, and if the agency does not establish
      that any prejudice would result from a waiver.           Daniel v. Department of the
      Treasury, 61 M.S.P.R. 249, 251 (1994).          This exception does not apply here,
      however. First, the appellant did not file with the agency prior to the end of the


      2
        The appellant completed and signed the designation of representative form on
      January 23, 2015, IAF, Tab 1 at 5, but the representative did not file the appeal with the
      Board until March 12, 2015, id. at 1, 6. The appellant has not provided any explanation
      for this delay.
                                                                                         6

      30-day filing period; rather, she faxed the documents to agency counsel on
      August 4, 2014, nearly 3 weeks past the July 15, 2014 filing deadline. 3 IAF, Tab
      1.   Second, the appellant delayed an additional 7 months after receiving the
      agency’s August 13, 2014 letter informing her that “sending documents to [the
      agency] does not constitute the filing of an MSPB appeal” and referring her to the
      filing instructions in the May 29, 2014 decision letter. Id.; IAF, Tab 6 at 15.
      Thus, the appellant’s submission to agency counsel in August 2014 provides no
      basis to find good cause for her untimely filing.
¶11         The appellant also appears to argue on review that the Board should find
      good cause for her untimely filing because she was in a “dazed and depressed
      state” and remains under the care of a physician. PFR File, Tab 1 at 4. As stated
      by the administrative judge in her timeliness order, to establish that an untimely
      filing was the result of an illness, an appellant must: (1) identify the time period
      during which she suffered from the illness; (2) submit medical evidence showing
      that she 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.     IAF, Tab 3 at 3-4; Lacy v. Department of the Navy,
      78 M.S.P.R. 434, 437 (1998). Here, the appellant’s response to the administrative
      judge’s timeliness order contained only bare unsworn assertions that she suffered
      from depression and confusion after her separation, IAF, Tab 9 at 2, 8-9, along
      with similarly bare and unsworn assertions of depression-like symptoms in
      declarations from an acquaintance and three family members, id. at 4-7.           In
      response to a show cause order concerning jurisdiction, the appellant provided,
      among other things, four medical documents dated from February 2012 through
      July 2013, several of which generally mentioned the appellant’s anxiety and


      3
        The record does not contain a copy of the appellant’s August 2014 facsimile or any
      evidence as to the date she sent it or its contents. As such, we have relied on the
      agency’s representation that agency counsel received the facsimile on August 4, 2014,
      which the appellant has not disputed. IAF, Tab 6 at 2, 15.
                                                                                         7

      workplace stress, and a 2013 request for an evening shift as a reasonable
      accommodation. IAF, Tab 11 at 4-12. The appellant’s submissions, however,
      failed to identify the time period of her illness and failed to provide a substantive
      explanation of how her illness prevented her from timely filing her appeal or a
      request for an extension. ID at 5. Moreover, none of the medical evidence is
      contemporaneous with the appeal period; rather, the most recent medical
      document, dated July 25, 2013, predates the appeal period by nearly a year. IAF,
      Tab 11 at 4. Accordingly, as the administrative judge correctly determined, the
      appellant failed to meet her burden of proving that her untimely filing was the
      result of illness. ID at 5.
¶12         In light of the above, we agree with the administrative judge’s finding that
      the appellant failed to show that she exercised ordinary prudence or due diligence
      under the circumstances, and discern no basis to disturb the initial decision. ID at
      5-6; see Nunn v. Department of Justice, 79 M.S.P.R. 368, ¶ 5 (1998) (determining
      that the pro se appellant’s failure to follow the straightforward instructions in the
      initial decision and failure to file his petition for review in accordance with those
      unambiguous instructions constituted a failure to exercise due diligence or
      ordinary prudence).

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the
      U.S. Court of Appeals for the Federal Circuit. You must submit your request to
      the court at the following address:
                                    United States Court of Appeals
                                        for the Federal Circuit
                                      717 Madison Place, N.W.
                                       Washington, DC 20439

      The court must receive your request for review no later than 60 calendar days
      after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
                                                                                    8

2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec.
27, 2012). You may read this law as well as other sections of the United States
Code, at our website, http://www.mspb.gov/appeals/uscode.htm.            Additional
information is available at the court’s website, www.cafc.uscourts.gov.            Of
particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,”
which is contained within the court’s Rules of Practice, and Forms 5, 6, and 11.
      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




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