                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     PETER C. THURMAN,                               DOCKET NUMBER
                   Appellant,                        SF-0432-13-0524-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: September 4, 2014
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Peter C. Thurman, Port Orchard, Washington, pro se.

           Lisa A. Evans, Esquire, Silverdale, Washington, for the agency.


                                           BEFORE

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


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     sustained his removal. 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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, and based on the following points and authorities, 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 was employed as a GS-12 Mechanical Engineer at the
     agency’s Naval Facilities Engineering Command Northwest in Bremerton,
     Washington. Initial Appeal File (IAF), Tab 4 at 19. On January 27, 2012, the
     appellant’s supervisor informed the appellant that his performance was
     unacceptable in Critical Element (CE) 2 of his position—Execution of Duties. Id.
     at 19-21. On April 5, 2012, the supervisor issued a performance improvement
     plan (PIP) to the appellant for a period of 90 days. Id. at 22-25. The appellant
     was indefinitely suspended effective June 22, 2012, and he did not return to work
     until October 11, 2012. Id. at 26, 28-31. Because the appellant did not have an
     opportunity to complete the PIP due to his indefinite suspension, on
     November 29, 2013, the agency extended the PIP to February 27, 2013.            Id.
     at 26-27.
¶3        On April 10, 2013, the appellant’s supervisor proposed the appellant’s
     removal for Unacceptable Performance in CE 2. IAF, Tab 4 at 41-43. The notice
     of proposed removal specified that the appellant failed to demonstrate minimally
                                                                                           3

     acceptable performance in CE 2 based on his untimely work on three projects that
     he had been assigned during the PIP 2 and the insufficient quality of his work. Id.
     The appellant submitted a written reply.        Id. at 44-45.   The deciding official
     sustained the charge of Unacceptable Performance in the critical element of
     Execution of Duties and the appellant was removed from his position effective
     May 10, 2013. Id. at 18, 46-49.
¶4         The appellant filed a Board appeal challenging his removal and requested a
     hearing. IAF, Tab 1. He asserted that his performance was acceptable and that
     his “product and services are satisfactory and timely.” Id. at 5. He also raised
     affirmative defenses of race discrimination based on disparate treatment and
     disparate impact. IAF, Tabs 10, 13.
¶5         After holding the requested hearing, the administrative judge issued an
     initial decision that affirmed the appellant’s removal.          IAF, Tab 21, Initial
     Decision (ID). The administrative judge found that the performance standard for
     CE 2 was valid, the agency communicated that standard to the appellant, the
     appellant failed to demonstrate acceptable performance with respect to CE 2, and
     the agency afforded the appellant a reasonable opportunity to demonstrate
     acceptable performance. ID at 9-17. The administrative judge also found that the
     appellant failed to prove his affirmative defenses. ID at 17-21.




     2
       These projects, which were assigned to the appellant during the period from
     November 29, 2012, to February 27, 2013, were as follows: (1) a Feasibility Study of
     Addition of Dust Collector Controls in various buildings at the Puget Sound Naval
     Shipyard (PSNS); (2) a Feasibility Study of Addition of Sand Blaster Controls in
     various buildings at the PSNS; and (3) the Correction of Code Violations in one
     building at the PSNS. IAF, Tab 4 at 33, 41-42. A fourth project assigned to the
     appellant during the same period is not at issue here because the appellant’s supervisor
     found that the appellant provided an acceptable explanation for failing to complete that
     project. See id. at 38.
                                                                                           4

¶6         The appellant has filed a petition for review, with a supplement. Petition
     for Review (PFR) File, Tabs 4, 6. The agency has filed a response in opposition
     to the petition for review. 3 PFR File, Tab 7.

                                          ANALYSIS
¶7         To prevail in an appeal of a performance-based removal under chapter 43,
     the agency must establish by substantial evidence that:                (1) the agency
     communicated to the appellant the performance standards and critical elements of
     his position; (2) the appellant’s performance standards are valid under 5 U.S.C.
     § 4302(b)(1); (3) the agency warned the appellant of the inadequacies of his
     performance during the appraisal period and gave him an adequate opportunity to
     improve; and (4) after an adequate improvement period, the appellant’s
     performance remained unacceptable in at least one critical element. 4 Towne v.
     Department of the Air Force, 120 M.S.P.R. 239, ¶ 6 (2013). Substantial evidence
     is the “degree of relevant evidence that a reasonable person, considering the
     record as a whole, might accept as adequate to support a conclusion, even though
     other reasonable persons might disagree.” 5 C.F.R. § 1201.56(c)(1).

     The administrative judge correctly found that the performance standard at issue
     here is valid and that the agency communicated the standard to the appellant.
¶8         The portion of the appellant’s performance plan pertaining to CE 2
     describes “acceptable” performance for CE 2 as follows: “Willingly accepts work
     assignments, properly follows instructions, uses technical knowledge, and applies
     skills needed to produce a product or service of good quality in a timely and
     3
       Several months after the record closed on review, the appellant filed an additional
     pleading. PFR File, Tab 8. Although entitled “Motion for Summary Judgment,” this
     submission is essentially a request that the Board issue a final decision in this
     matter. Id.
     4
       The agency also has the burden of proving that the Office of Personnel Management
     has approved the agency’s performance appraisal system and any significant changes
     thereto, if the appellant raises such a challenge. Daigle v. Department of Veterans
     Affairs, 84 M.S.P.R. 625, ¶¶ 11-12 (1999). The appellant did not raise this issue in the
     instant case. ID at 8.
                                                                                       5

      responsive manner.”     IAF, Tab 4 at 20.     On review the appellant does not
      challenge the administrative judge’s finding that the agency proved by substantial
      evidence that the performance standard at issue here is valid. See ID at 11. We
      discern no reason to disturb the administrative judge’s explained finding
      regarding this issue.
¶9          As for whether the agency met its burden of proving that it communicated
      to the appellant his performance standard for CE 2, the administrative judge
      found that the documentary evidence and the hearing testimony reflect that CE 2
      was communicated to the appellant by various means at various times, including
      the PIP notice and meetings with his supervisor. ID at 11 (citing IAF, Tab 4 and
      Hearing Compact Disc (HCD) (testimony of the appellant’s supervisor)).           In
      particular, the administrative judge found that the record reflects that the
      appellant’s supervisor met and communicated with the appellant throughout the
      PIP to provide feedback and answer questions about CE 2.          ID at 11.    The
      documentary evidence, which includes the supervisor’s notes from these
      meetings, supports this finding. See IAF, Tab 4 at 33-40. Therefore, we discern
      no reason to disturb the administrative judge’s finding that the agency met its
      burden of proving that the appellant’s performance standard for CE 2 was
      communicated to the appellant. ID at 11.

      The administrative judge correctly found that the agency proved by substantial
      evidence that the appellant failed to demonstrate acceptable performance
      regarding CE 2.
¶10         In addressing whether the agency proved that the appellant failed to
      demonstrate acceptable performance regarding CE 2, the administrative judge
      considered the relevant documentary evidence and hearing testimony, including
      the testimony of the appellant and his supervisor. See ID at 12-15. In his hearing
      testimony, as summarized in the initial decision, the appellant’s supervisor stated
      that the appellant failed to complete the first project within the PIP period and
      that the project was performed in an unacceptable method in terms of timeliness
                                                                                            6

      and quality. ID at 5-6. The appellant’s supervisor testified that the appellant’s
      performance on the second project was unsatisfactory on the same bases. ID at 6.
      As for the third project, the supervisor testified that the appellant failed to deliver
      a work product that could be reviewed within the PIP deadline.           ID at 6.    In
      particular, the supervisor testified that the appellant failed to provide essential
      information for the third project, including cost estimates and drawings. ID at 6.
      He stated that, without such information, the project was unacceptable in terms of
      CE 2 because the work product was incomplete and untimely. ID at 6.
¶11         By contrast, in his hearing testimony, the appellant testified that he
      completed the projects within budget and on time.              See ID at 13.        The
      administrative judge rejected this contention, noting that, in his response to the
      notice of proposed removal, the appellant conceded that he failed to complete the
      first two of the three assignments at issue on time and stated that he completed
      the third project after the PIP ended.      ID at 13, see IAF, Tab 4 at 44.         The
      administrative judge found that, although the appellant may have met the internal
      customers’ deadlines for the projects, the relevant deadlines for purposes of the
      PIP were the ones set forth in the PIP.            ID at 13.     In that regard, the
      administrative judge found that the record reflects that, throughout the PIP
      period, the appellant’s supervisor discussed the timeframes for the underlying
      tasks and conveyed the PIP deadlines for the three projects at issue here and
      related subordinate tasks needed to complete the projects. ID at 13-14; see IAF,
      Tab 4 at 33-40.
¶12         The administrative judge found that the record reflects that the appellant
      was unable to complete any of the three projects at issue within the PIP period.
      ID at 13 (citing IAF, Tab 4, testimony of the appellant’s supervisor); see IAF,
      Tab 4 at 39.      The administrative judge found that, because none of the PIP
      assignments were completed, the appellant failed to meet, inter alia, the
      timeliness requirement for acceptable performance in CE 2.            ID at 14.     The
      administrative judge found that a reasonable person could agree with the
                                                                                       7

      appellant’s supervisor that the appellant’s performance was inadequate in that the
      appellant failed to timely complete any of the assignments at issue during the PIP.
      ID at 15.     Thus, the administrative judge found that the agency showed by
      substantial evidence that the appellant failed to demonstrate acceptable
      performance concerning CE 2. ID at 15.
¶13         The appellant challenges this finding on review, asserting that he completed
      all three PIP assignments at issue in this appeal—two in January 2013 and the
      remaining project in March 2013. PFR File, Tab 4 at 3, Tab 6 at 3. The appellant
      also contends that “all projects received were completed as required by [his
      supervisor] and customers, as no customers complained about [his] work and [his
      supervisor] resumed issuing regular assignments to [him] after the PIP ended . . .,
      never stating that [the appellant failed the PIP] until April 10, 2013.” PFR File,
      Tab 6 at 3.
¶14         We find these arguments unpersuasive. In finding that the agency proved
      by substantial evidence that the appellant failed to demonstrate acceptable
      performance regarding CE 2, the administrative judge thoroughly considered the
      relevant documentary evidence and hearing testimony regarding the projects
      underlying the agency’s charge of unacceptable performance. ID at 12-15. The
      record supports the administrative judge’s finding that the appellant failed to
      complete any of the three projects at issue within the extended 3-month PIP
      period. ID at 13. In particular, we note that the appellant’s supervisor’s progress
      notes regarding the projects at issue reflect that the appellant did not complete
      any of those projects before the end of the extended PIP period. See IAF, Tab 4
      at 40 (stating that, as of February 28, 2013, none of the assignments had
      been completed).
¶15         We also find unpersuasive the appellant’s contention on review that he
      demonstrated acceptable performance during the PIP because there were no
      complaints about his work from internal customers, and his supervisor continued
      to assign him work after the PIP and did not inform him that he had failed the PIP
                                                                                      8

      until several weeks later.   PFR File, Tab 4 at 3, Tab 6 at 3.   Contrary to the
      appellant’s contention, neither the absence of customer complaints nor the fact
      that his supervisor did not inform him that he had failed the PIP until several
      weeks after the PIP ended demonstrate that his performance was acceptable.

      The administrative judge correctly found that the agency proved by substantial
      evidence that it afforded the appellant a reasonable opportunity to demonstrate
      acceptable performance regarding CE 2.
¶16        We also discern no reason to disturb the administrative judge’s finding that
      the agency proved by substantial evidence that it afforded the appellant a
      reasonable opportunity to demonstrate acceptable performance. See ID at 17. As
      the administrative judge noted, the documentary evidence memorializes a series
      of one-on-one PIP review and coaching meetings, with accompanying task
      discussions, time estimates, and deadlines; the appellant’s supervisor engaged in
      ongoing discussions and meetings with the appellant regarding any concerns he
      may have had with completing this PIP; and the appellant was given timeline
      guidance for performing tasks, in addition to overall deadlines, and extensions as
      unexpected issues arose, to ensure that he had an opportunity to plan and execute
      each of these reviewed tasks. ID at 15-16; see IAF, Tab 4 at 32-40.
¶17        On review, the appellant’s only argument regarding the issue of whether he
      had an opportunity to demonstrate acceptable performance consists of his claim
      that he was not properly mentored during his tenure with the agency. PFR File,
      Tab 6 at 3 (citing ID at 16).   The administrative judge properly rejected this
      argument, finding that, while the appellant may feel that he should have received
      additional and/or different mentoring, this does not explain or justify the poor
      quantity and quality of his work. ID at 16-17.

      The administrative judge correctly found that the appellant failed to prove his
      affirmative defenses.
¶18        As noted above, during the proceedings below the appellant raised
      affirmative defenses of race discrimination based on disparate treatment and
                                                                                         9

      disparate impact. IAF, Tab 10 at 13, Tab 13. The appellant appears to reassert
      his disparate treatment claim on review, alleging that the administrative judge
      erred in finding that race was not a factor in the agency’s decision to remove him.
      PFR File, Tab 4 at 4.
          Race discrimination based on disparate treatment
¶19         To establish a claim of prohibited employment discrimination, an employee
      first must establish a prima facie case; the burden of going forward then shifts to
      the agency to articulate a legitimate, nondiscriminatory reason for its action; and,
      finally, the employee must show that the agency’s stated reason is merely a
      pretext   for   prohibited   discrimination.      McDonnell    Douglas    Corp.    v.
      Green, 411 U.S. 792, 802-04 (1973). Regarding disparate treatment, an employee
      may establish a prima facie case of prohibited discrimination by introducing
      preponderant evidence to show that he is a member of a protected group, he was
      similarly situated to an individual who was not a member of the protected group,
      and he was treated more harshly or disparately than the individual who was not a
      member of his protected group. Buckler v. Federal Retirement Thrift Investment
      Board, 73 M.S.P.R. 476, 497 (1997). However, in a case like this, where the
      record is complete and a hearing has been held, the Board will proceed directly to
      the ultimate question of whether the appellant has demonstrated by a
      preponderance of the evidence that the agency’s reason for its actions was a
      pretext for discrimination. Berry v. Department of Commerce, 105 M.S.P.R. 596,
      ¶ 10 (2007).
¶20         The administrative judge noted that both the appellant’s supervisor and the
      deciding official testified that the sole basis for their actions was the appellant’s
      workplace performance.       ID at 18-19.      Applying the factors for resolving
      credibility issues set forth in Hillen v. Department of the Army, 35 M.S.P.R. 453,
      458 (1987), the administrative judge credited the testimony of both witnesses,
      finding that their testimony was “straight-forward, largely consistent, and based
      on personal knowledge as a percipient witness.” ID at 19. In addition, he found
                                                                                       10

      that their stated reasons for taking the actions at issue were “specific, detailed,
      largely consistent with the written record, and not inherently improbable.” ID at
      19.   Based on the record as a whole, the administrative judge found that the
      appellant failed to show by preponderant evidence that he was subjected to
      disparate treatment discrimination based on race. ID at 20.
¶21         The appellant challenges this finding on review, arguing that the
      administrative judge “ignored racial comments made at work to [a]ppellant, and
      acts or words of hostility or hatred toward [a]ppellant at work.” PFR File, Tab 4
      at 4. He also asserts that his supervisor and the deciding official are not credible
      witnesses. PFR File, Tab 6.
¶22         We find the appellant’s arguments unavailing.        The appellant does not
      specify what acts or words the administrative judge allegedly ignored and, in any
      event, the administrative judge’s failure to mention all of the evidence of record
      does not mean that he did not consider it in reaching his decision. Marques v.
      Department of Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d,
      776 F.2d 1062 (Fed. Cir. 1985) (Table).       Regarding the appellant’s apparent
      objection to the administrative judge’s credibility determinations, the Board must
      give deference to an administrative judge’s credibility determinations when they
      are based, explicitly or implicitly, on the observation of the demeanor of
      witnesses testifying at a hearing; the Board may overturn such determinations
      only when it has “sufficiently sound” reasons for doing so. Haebe v. Department
      of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) . While the appellant clearly
      does not agree with the administrative judge’s credibility determinations, he has
      failed to advance any sufficiently sound reasons for overturning them.          See
      Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133-34 (1980).
            Race discrimination based on disparate impact
¶23         To establish a prima facie case of disparate impact, the appellant must
      identify the specific employment practice that is challenged as responsible for the
      statistical disparities and show that the application of the particular practice
                                                                                       11

      created   the    disparate    impact.        See    Stern    v.   Federal     Trade
      Commission, 46 M.S.P.R. 328, 333 (1990).       That is, the appellant must, as an
      initial matter, present sufficient statistical evidence to prove that the employment
      practice at issue fell more harshly on one group than another.          Hidalgo v.
      Department of Justice, 93 M.S.P.R. 645, 653 (2003).               If the appellant
      demonstrates that the agency uses a particular employment practice that causes a
      disparate impact, the agency must either show that it does not cause such impact
      or demonstrate that the practice is job-related for the position in question and
      consistent with business necessity.     IAF, Tab 11 (citing 42 U.S.C. §§ 2000e-
      2(k)(1)(A)(i), 2000e-2(k)(1)(B)(ii)).   An appellant may also establish disparate
      impact by showing the availability of alternative practices that achieve the same
      business ends with less impact on the protected group.                IAF Tab 11
      (citing 42 U.S.C. § 2000e-(2)(k)(1)(C)); Stern, 46 M.S.P.R at 333.
¶24        The administrative judge explained in the initial decision that the appellant
      identified the employment practice at issue as the agency’s practice of
      transferring employees who are “not wanted in the workplace” for reasons other
      than work performance, resulting in a stifling environment for the transferred
      employee, rather than addressing the “behavior as necessary to nullify those
      reasons.” ID at 21 (quoting IAF, Tab 13). The administrative judge found that
      the appellant presented inadequate evidence to support his apparent assertion that
      it was an agency practice to transfer employees as alleged and further found that
      it was unclear how the appellant was affected by such an alleged policy based on
      his testimony that he had been performing these duties in the years leading up to
      the PIP. ID at 21. In addition, the administrative judge found that the appellant
      failed to adequately show that the application of any such practice created a
      disparate impact based on race and failed to present any statistical evidence
      showing that transfers, or any identified employment practice, fell more harshly
      on one group than another. ID at 21. The administrative judge therefore found
                                                                                      12

      that the appellant failed to support by preponderant evidence his claim of
      discrimination on the basis of disparate impact. ID at 21.
¶25         Aside from his assertions on review that “white males are traditionally
      concentrated at the top ranks of the Navy,” “most white males have every
      intention of keeping with that tradition,” and “black males are traditionally
      concentrated at the bottom of the Navy,” PFR File, Tab 6 at 3, the appellant
      does not offer any argument or evidence addressing his disparate impact claim.
      Based on our review of the record, we find no reason to disturb the administrative
      judge’s finding that the appellant failed to prove this affirmative defense.

      The severity of the penalty
¶26         The appellant also seems to argue on review that the penalty of removal was
      too severe in light of his work record and length of service. PFR File, Tab 4 at 4.
      The administrative judge correctly rejected this argument. ID at 21-22. As the
      administrative judge explained, the Board has no authority to mitigate a removal
      or demotion taken under 5 U.S.C. chapter 43 for unacceptable performance. ID at
      21-22 (citing Davis v. Department of Health & Human Services, 58 M.S.P.R. 538,
      541 (1993)).

      Judicial bias claim
¶27         On review, the appellant also raises an apparent claim of judicial bias and
      asks the Board to assign this appeal to another administrative judge. PFR File,
      Tab 4 at 1. In support of this request, the appellant states that he believes the
      administrative judge “will never make a decision in favor of [the a]ppellant
      against [the a]gency” and “will never acknowledge or interpret testimony,
      evidence, submissions or law in a manner favorable to [the appellant] against [the
      a]gency.” Id. The appellant asserts that this belief is based on the administrative
                                                                                          13

      judge’s written and verbal correspondence with him in both this and his prior
      Board appeal. 5 Id.
¶28         In making a claim of bias or prejudice against an administrative judge, a
      party must overcome the presumption of honesty and integrity that accompanies
      administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R.
      382, 386 (1980). An administrative judge’s conduct during the course of a Board
      proceeding warrants a new adjudication only if his comments or actions evidence
      a deep-seated favoritism or antagonism that would make fair judgment
      impossible. See Smets v. Department of the Navy, 117 M.S.P.R. 164, ¶ 15 (2011),
      aff’d, 498 F. App’x 1 (Fed. Cir. 2012). The appellant’s allegations on review,
      which do not relate to any extrajudicial conduct by the administrative judge,
      neither overcome the presumption of honesty and integrity that accompanies an
      administrative judge, nor establish that the administrative judge showed a
      deep-seated favoritism or antagonism that would make fair judgment impossible.

                      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:



      5
         In his prior Board appeal, the appellant challenged the agency’s decision to
      indefinitely suspend him based on his loss of access to classified information. Thurman
      v. Department of the Navy, MSPB Docket No. SF-3443-12-0727-I-1 (0727), IAF, Tab 1.
      The administrative judge issued an initial decision dismissing the appeal as untimely
      filed without good cause shown for the filing delay. 0727, IAF, Tab 10, Initial
      Decision. On review, the Board affirmed the initial decision in a nonprecedential final
      order dated September 16, 2013.
                                                                                   14

                           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

      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 United States
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
                                                                      15

prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e5(f)
and 29 U.S.C. § 794a.




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