                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DENISE R. MCGANN,                               DOCKET NUMBER
                   Appellant,                        DC-0752-14-0958-I-2

                  v.

     GENERAL SERVICES                                DATE: December 29, 2016
       ADMINISTRATION,
                  Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Christina L. Quashie, Esquire, Washington, D.C., for the appellant.

           Mary Clare G. Claud, Washington, D.C., 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
     sustained her 30-day suspension. 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. Except as expressly MODIFIED by
     this Final Order to analyze the appellant’s claim of retaliation for protected equal
     employment opportunity (EEO) activity under the framework set forth in
     Savage v. Department of the Army, 122 M.S.P.R. 612 (2015), we AFFIRM the
     initial decision.

                                        BACKGROUND
¶2         Effective July 2, 2014, the agency suspended the appellant for 30 days from
     her GS-15 position as a Supervisory Human Resources Specialist (Director of
     Human Resources) with the agency’s Office of Inspector General based on four
     charges:    (1) conduct unbecoming (three specifications); (2) absence without
     leave (one specification); (3) failure to follow instructions (two specifications);
     and (4) insubordination (one specification).          MSPB Docket No. DC - 0752 - 14 -
     0958 - I - 2, Appeal File (I-2 AF), Tab 11 at 5-17.
¶3         In support of the insubordination charge, 2 the agency alleged as follows:
            On March 31, 2014, you sent [your first-level supervisor] an email
            at 3:43 p.m. The subject line of your email was “Please stop Acting
            Like Bullies.” In the body of the email you requested that [your

     2
       We do not address the remaining three charges because they are not at issue on
     review, as the appellant does not challenge the administrative judge’s findings that the
     agency proved those charges by preponderant evidence. Initial Decision (ID) at 2‑18.
                                                                                             3

           first and second-level supervisors] “stop acting like the bullies
           I know you to be.” Disparaging your first and second level
           supervisors in such a manner is unprofessional, and disrespectful;
           i.e., insubordinate. [3]
     I-2 AF, Tab 10 at 34, 67.
¶4         The appellant filed a Board appeal challenging her suspension and
     requesting a hearing.     MSPB Docket No. DC-0752-14-0958-I-1, Initial Appeal
     File, Tab 1 at 2. She raised affirmative defenses of retaliation for protected EEO
     activity, disability discrimination based on failure to accommodate, and reprisal
     for whistleblowing. Id. at 6; I-2 AF, Tab 13 at 10.
¶5         After holding a hearing, the administrative judge issued an initial decision
     that affirmed the appellant’s suspension. I-2 AF, Tab 30, Initial Decision (ID)
     at 1, 35.   The administrative judge found that:        the agency proved all of the
     charges and specifications by preponderant evidence, ID at 2-20; the appellant
     did not prove her affirmative defenses, 4 ID at 20-32; and the 30-day suspension
     was a reasonable penalty and promoted the efficiency of the service. ID at 32-35.
¶6         The appellant has filed a petition for review. MSPB Docket No. DC-0752-
     14-0958-I-2, Petition for Review (PFR) File, Tab 1.           The agency has filed a
     response in opposition to the petition for review. PFR File, Tab 4. The appellant
     has filed a reply to the agency’s response. 5 PFR File, Tab 7.


     3
      The agency order entitled “Maintaining Discipline” defines insubordination to include
     “disrespect, insolence and like behavior.” I-2 AF, Tab 11 at 23.
     4
       Although the administrative judge incorrectly stated that the appellant alleged
     disability discrimination based on disparate treatment, ID at 23, he correctly analyzed
     her discrimination claim as one of disability discrimination ba sed on a failure to
     accommodate, ID at 23-29.
     5
        In her reply, the appellant argues that the deciding official improperly considered her
     attorney’s request for an extension of time to present an oral reply to the proposed
     suspension as an aggravating factor in determining the penalty. PFR File, Tab 7 at 7-8.
     We have not considered this argument because the appellant did not raise it as an issue
     in her petition for review. See 5 C.F.R. § 1201.114(b) (the Board normally will
     consider only issues raised in a timely filed petition for review or timely filed cross
     petition for review).
                                                                                           4

                                          ANALYSIS
     The appellant’s due process argument is not properly before the Board.
¶7         The appellant argues on review that the administrative judge improperly
     failed to address her argument that the agency violated her due process rights
     when it suspended her because the deciding official sustained the insubordination
     charge based on information that was not provided to her. PFR File, Tab 1 at 4,
     10-13.    More specifically, the appellant argues that the deciding official
     considered her conduct during a March 25, 2014 mid-year evaluation meeting and
     her March 26, 2014 reprimand for that conduct in deciding to sustain the
     insubordination charge; however, the agency never notified her that it was
     considering those matters. Id. at 10-13.
¶8         The appellant did not raise this claim prior to the prehearing conference or
     in response to the administrative judge’s prehearing conference summary, 6 in
     which he identified the issues in the appeal and notified the parties that other
     issues would not be considered unless they filed a written objection or motion to
     supplement the summary. I-2 AF, Tab 21. The due process issue was not listed
     in the prehearing conference summary, and the appellant did not object to that
     summary. We find that the appellant clearly was aware of the alleged due process
     violation during the prehearing conference because the deciding official ’s


     6
       The record indicates that the appellant did not raise her due process claim until her
     closing argument. I-2 AF, Hearing Transcript at 229-37. In that regard, we find
     unpersuasive the appellant’s argument on review that she properly raised her due
     process claim in this appeal by alleging in her written response to the proposed
     suspension that the action violated her rights. PFR File, Tab 7 at 5; I-2 AF, Tab 10
     at 68. Although the appellant alleged generally that the proposed suspension violated
     her rights, she did not specifically claim a due process violation resulted from the
     agency’s purportedly having considered ex parte information.             Moreover, the
     appellant’s assertion that she raised the due process claim in response to her proposed
     suspension is inherently inconsistent with the premise of her claim, i.e., that the
     deciding official improperly considered information that was not provided to her. In
     other words, it would have been impossible for the appellant to have known, when she
     submitted her response to the proposal, what inform ation the deciding official would or
     would not be relying upon.
                                                                                         5

     decision letter stated that she had considered the appellant’s March 26, 2014
     reprimand in sustaining the insubordination charge.            I-2 AF, Tab 11 at 12.
     Therefore, the appellant has not demonstrated good cause for failing to raise the
     due process issue in response to the prehearing conference summary.               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 conference defining the issues in the
     case). Under the circumstances, we find that, because the appellant did not object
     to the accuracy of the prehearing summary when given the opportunity to do so,
     she failed to preserve any issue regarding her due process rights for review. See
     Crowe v. Small Business Administration, 53 M.S.P.R. 631, 635 (1992) (finding
     that an issue is not properly before the Board when it is not included in the
     administrative judge’s memorandum summarizing the prehearing conference that
     states that no other issues will be considered unless either party objects to the
     exclusion of that issue in the summary).
     The administrative judge correctly found that            the    agency   proved   the
     insubordination charge by preponderant evidence.
¶9         As previously noted, the appellant does not challenge the administrative
     judge’s findings that the agency proved the first three charges by preponderant
     evidence, ID at 23-18, and we discern no reason to disturb these findings.
     Regarding the insubordination charge, the appellant argues on review that her
     email constitutes protected activity under the opposition clause of title VII of the
     Civil Rights Act of 1964, which prohibits agencies from retaliating against
     employees who oppose unlawful employment practices. PFR File, Tab 1 at 13;
     I-2 AF, Tab 10 at 73; see 42 U.S.C. § 2000e-3(a); see also Martin v. Department
     of the Air Force, 73 M.S.P.R. 590, 594 (1997) (recognizing that the opposition
     clause applies in Board proceedings). In support of her claim, the appellant notes
     that the Equal Employment Opportunity Commission (EEOC) considers protected
     “opposition” activity to include “[c]omplaining to anyone about alleged
     discrimination against oneself or others.” PFR File, Tab 1 at 13 (quoting EEOC
                                                                                             6

      Compliance Manual, Section 8: Retaliation). 7        The appellant contends that her
      March 31, 2014 email qualifies as protected oppositional activity because she was
      alleging that her supervisors were harassing her regarding her reasonable
      accommodation request. Id. at 14; I-2 AF, Tab 10 at 73.
¶10         The administrative judge rejected this argument in the initial decision,
      finding that the language in the appellant’s email was “incendia ry and
      disrespectful,” and that her accusations of bullying were unprotected under any
      recognized standard of oppositional activity. ID at 20. The administrative judge
      concluded that the appellant sent the email to her supervisors as a “derogatory
      and inflammatory rejection of their considered action to regulate her attendance
      and enforce existing standards.” Id. Therefore, the administrative judge found,
      the agency proved the insubordination charge. Id.
¶11         The appellant challenges this finding on review, reasserting her argument
      that the statements in her email accusing her supervisors of acting like bullies are
      protected under the opposition clause because she was opposing her supervisors’
      harassment and discrimination.       PFR File, Tab 1 at 13-14.        As the appellant
      acknowledges, however, for conduct to qualify as protected activity under the
      opposition clause, the manner of opposition must be reasonable and based on a
      reasonable belief that a violation occurred. Id. at 14 (citing EEOC Compliance
      Manual, Section 8) 8; see Smith v. Texas Department of Water Resources, 818 F.2d
      363, 366 (5th Cir. 1987) (stating that the opposition clause “was not intended to
      immunize insubordinate, disruptive, or nonproductive behavior at work”)
      (quoting Armstrong v. Index Journal Co., 647 F.2d 441, 448 (4th Cir. 1981)). To
      7
        Effective August 25, 2016, the EEOC Compliance Manual, Section 8: Retaliation,
      was superseded by the EEOC Enforcement Guidance on Retaliation and Related Issues
      (available online at http://eeoc.gov/laws/guidance/retaliation-guidance.cfm). A copy of
      the EEOC Compliance Manual is not in the record, and it is no longer available online.
      8
         The EEOC Enforcement Guidance on Retaliation and Related Issues similarly
      provides that, “[f]or statements or actions to be protected opposition . . . they must be
      based on a reasonable good faith belief that the conduct opposed violates the EEO laws,
      or could do so if repeated.”
                                                                                       7

      determine whether it was reasonable for the appellant to believe that her
      supervisors harassed and discriminated against her regarding her reasonable
      accommodation request when she accused them of being bullie s in her March 31,
      2014 email, we have examined the circumstances surrounding her email.
¶12        The record shows that on March 25, 2014, the appellant received a
      temporary reasonable accommodation (TRA), which allowed her to telework up
      to 3 days a pay period on days when she had scheduled medical appointments,
      provided that she notified her supervisor of her desire to telework no later than
      6:00 p.m. on the day before her scheduled appointment. I-2 AF, Tab 10 at 58.
      The TRA also allowed the appellant to telework due to an emergency medical
      need, but required her to provide advance written notice to her supervisor via
      email no later than the start of her tour of dut y.    Id.   In addition, the TRA
      provided that, on the days that the appellant teleworked due to a medical
      appointment, she was required to send her supervisor an email stating when she
      left her alternate worksite to attend the appointment and when she return ed from
      the appointment. Id. at 59. Finally, the TRA notified the appellant that failure to
      provide advance written notice of her desire to telework due to a medical
      appointment could result in the denial of her request. Id.
¶13        On Wednesday, March 26, 2014, the appellant asked to telework due to
      weather conditions, and her supervisor informed her that she could telework that
      morning until the ice melted. Id. at 45-46. Later that morning, the appellant’s
      supervisor sent her an email explaining that the only person in the human
      resources office that day had to go home because she was ill, and asking the
      appellant to come into the office as soon as the ice melted and she was able to do
      so safely.   Id. at 42.   When the appellant did not respond to that email or a
      subsequent voicemail message, she sent the appellant another email inquiring
      about her status.   Id. at 41. In response, the appellant sent her supervisor an
      email stating that the ice had not melted and that she did not think she would be
      able to make it in that day.     Id.   Forty minutes later, the appellant sent her
                                                                                        8

      supervisor another email stating, “I also had a medical appointment.” Id. at 45.
      The appellant’s supervisor then sent her an email requesting the following
      information regarding her appointment, in accordance with the TRA: the time of
      the appointment; the time that she left her alternate worksite to attend the
      appointment; and the time that she returned from the appointment. Id. at 44. The
      appellant did not provide the requested information, and her supervisor sent her
      an email the following day, Thursday, March 27, 2014, again asking for that
      information; however, the appellant did not respond. Id. at 43-44.
¶14         The appellant did not report to work on Monday, March 31, 2014, and her
      supervisor sent her an email more than an hour after the appellant’s scheduled
      start time inquiring about her status that day and asking whether she was coming
      to the office. 9 Id at 63. In response, the appellant sent her supervisor an email
      stating that she was at a clinic and would like to telework. Id. The appellant’s
      supervisor denied the appellant’s request, explaining that she had not complied
      with the terms of her TRA. Id. at 62. The appellant responded, “That's because
      the terms are unreasonably burdensome.” Id. at 61. The appellant’s supervisor
      then sent the appellant an email notifying her that, regardless of the terms of her
      TRA, the appellant was required to notify her of her status. Id. In the email, the
      appellant’s supervisor directed her to report to work, answer the questions in the
      March 27, 2014 email, and provide information regarding her appointment that
      morning, including when she made the appointment and why she did not provide
      advance notice of the appointment. Id. About 4 hours later, the appellant sent
      the email that is the basis for the insubordination charge. Id. at 67.
¶15         Based on our review of the record, it appears that the appellant accused her
      supervisors of being bullies because her first-level supervisor denied her request
      to telework on March 31, 2014, and repeatedly asked the appellant to provide
      information to comply with the TRA.            We disagree with the appellant’s
      9
       The record does not reflect what, if anything significant, occurred on Friday,
      March 28.
                                                                                                9

      contention that those terms were unreasonably burdensome. We also find that the
      appellant’s supervisor properly denied the appellant’s telework request on
      March 31, 2014, because the appellant failed to comply with the terms of the
      TRA and refused to respond to her supervisor’s requests for information. It is an
      axiom of civil service law that agency management may impose reasonable
      conditions regarding requests for leave and employees must comply with the
      lawful orders of their supervisors. See Dias v. Department of Veterans Affairs,
      102 M.S.P.R. 53, ¶ 14 (2006), aff’d, 223 F. App’x 986 (Fed. Cir. 2007). Given
      the circumstances, we find that the appellant did not have a reasonable,
      good-faith belief that her supervisors were discriminating against her or harassing
      her when she accused them of being bullies.             Therefore, we agree with the
      administrative judge that the appellant’s allegations of bullying are not protected
      oppositional activity.     We also agree with the administrative judge that the
      language in the appellant’s email was incendiary and disrespectful.              ID at 20.
      Accordingly, we find no reason to disturb the administrative judge’s finding that
      the agency proved the insubordination charge. Id.
      The appellant failed to prove her affirmative defense of retaliation for protected
      EEO activity. 10
¶16         On review, the appellant challenges the administrative judge’s finding that
      she failed to prove her affirmative defense of retaliation for EEO activity. PFR
      File, Tab 1 at 13-17; ID at 20-23. In analyzing the appellant’s retaliation claim,
      the administrative judge stated that, to meet her ultimate burden of proof on
      retaliation for EEO activity, the appellant must establish not only that she
      engaged in protected activity and that the accused official was aware of that
      activity, but also that there is a “genuine nexus” between the protected activity
      10
         In her petition for review, t he appellant does not challenge the administrative judge’s
      findings that she failed to prove her claims of disability discrimination an d whistleblower
      reprisal. ID at 23-32. Although she appears to reiterate her whistleblower reprisal claim in
      her reply to the agency’s response to her petition for review, PFR File, Tab 7 at 11-12, w e
      have not considered this argument because the appellant did not raise it as an issue in
      her petition for review, see 5 C.F.R. § 1201.114(b).
                                                                                         10

      and the adverse employment action.        ID at 20-21.    The administrative judge
      explained that, to establish such a nexus, the appellant must prove that the
      employment action was taken because of the protected activity. Id. at 20.
¶17         Applying this standard, the administrative judge found that the appellant
      engaged in protected activity by filing a request for reasonable accommodation,
      and that the proposing and deciding officials were aware of her protected activity.
      ID at 21-22. The administrative judge further found, however, that the appellant
      failed to establish a nexus between her activity and the suspension action.        ID
      at 23. In making this finding, the administrative judge credited the testimony of
      the proposing and deciding officials that the appellant’s suspension was based on
      her misconduct, not her protected EEO activity.        ID at 22.    Specifically, the
      administrative judge found that these officials testified in a straightforward,
      confident manner, and that their recollections “have remained consistent over
      time.” Id. He further found that the appellant’s retaliation claim was merely
      speculation concerning the basis for the action and that she did not present
      evidence to support her retaliation claim. ID at 22-23.
¶18         After the hearing, but prior to the issuance of the initial decision in this
      matter, the Board issued Savage, 122 M.S.P.R. 612, ¶¶ 35-51, clarifying the
      standards and procedures governing its adjudication of claims under title VII of
      the Civil Rights Act of 1964 (codified in pertinent part at 42 U.S.C.
      § 2000e‑16). 11 Under Savage, when an appellant asserts an affirmative defense
      of discrimination or retaliation under 42 U.S.C. § 2000e-16, the Board first will
      inquire whether the appellant has shown by preponderant evidence that the
      prohibited consideration was a motivating factor in the contested personnel
      action.   Id., ¶ 51.   Such a showing is sufficient to establish that the agency
      violated 42 U.S.C. § 2000e-16, thereby committing a prohibited personnel


      11
        Although Savage post-dated the hearing, it did not materially affect the appellant’s
      ability to establish her retaliation claim.
                                                                                          11

      practice under 5 U.S.C. § 2302(b)(1). Id. If the appellant meets her burden, the
      Board then will inquire whether the agency has shown by preponderant evidence
      that the action was not based on the prohibited personnel practice, i.e., that it still
      would have taken the contested action in the absence of the discriminatory or
      retaliatory motive. Id. If the Board finds that the agency has made that showing,
      its violation of 42 U.S.C. § 2000e‑16 will not require reversal of the action. Id.
¶19         Because the administrative judge did not consider the appellant’s retaliation
      claim under the framework set forth in Savage, we modify the initial decision to
      do so. Based on our review of the record, we find that the appellant failed to
      meet her initial burden of showing by preponderant evidence that the prohibited
      consideration was a motivating factor in the contested personnel action. Id., ¶ 51.
      As the administrative judge correctly found, the appellant did not present
      evidence to support her retaliation claim, and her claim is essentially mere
      speculation concerning the basis for her suspension. ID at 22-23. Moreover, we
      discern no reason to disturb the administrative judge’s demeanor -based credibility
      determinations regarding the testimony of the proposing and deciding officials
      that the appellant’s suspension was based on her misconduct, not her protected
      EEO activity. ID at 22; see Haebe v. Department of Justice, 288 F.3d 1288, 1301
      (Fed. Cir. 2002) (holding that the Board must defer to the administrative judge’s
      credibility determinations because they are based, explicitly or implicitly, on
      observing the demeanor of the witnesses that testified at the hearing, and may
      overturn such determinations only when it has sufficiently sound reasons for
      doing so).
¶20         In support of her retaliation claim, the appellant argues on review that her
      March 31, 2014 email constitutes protected activity and she asserts that the
      deciding official’s testimony that she sustained the insubordination charge based
      on that email is direct evidence of reprisal.      PFR File, Tab 1 at 13-15.       The
      appellant contends that “[w]ith this direct evidence of reprisal, [she] proved her
      affirmative defense of retaliation.” Id. at 17.
                                                                                        12

¶21         For the reasons discussed above, however, we find that the appellant’s
      email does not qualify as protected activity. Therefore, the agency’s decision to
      discipline the appellant for that email does not constitute reprisal for protected
      EEO activity.    Accordingly, we find that the appellant failed to prove her
      affirmative defense of retaliation for protected EEO activity.
      The administrative judge correctly found that the penalty is reasonable and
      promotes the efficiency of the service.
¶22         When, as here, all of the charges have been sustained, the Board will review
      an agency-imposed penalty only to determine if the agency considered all of the
      relevant Douglas factors, and exercised management discretion within tolerable
      limits of reasonableness. Holland v. Department of Defense, 83 M.S.P.R. 317,
      ¶ 9 (1999); Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). The
      Board will modify the agency’s chosen penalty only if it finds that the agency’s
      judgment clearly exceeds the limits of reasonableness.           Douglas, 5 M.S.P.R.
      at 306.
¶23         Here, the decision letter shows that the deciding official considered the
      relevant factors, including the seriousness of the appellant’s misconduct, which
      she found “serious and egregious.” I-2 AF, Tab 11 at 13. The deciding official
      also considered that the appellant occupied a position of trust, and concluded that
      the appellant’s misconduct had caused her to lose trust and confidence in the
      appellant’s ability to carry out her duties with integrity. Id. The deciding official
      also considered the appellant’s prior discipline for disrespectful behavior, and
      found that the appellant had exhibited a troubling pattern of “willful behavior.”
      Id. The deciding official considered the appellant’s years of service and previous
      work history as mitigating factors, but found that these factors were outweighed
      by the seriousness and egregiousness of the appellant’s misconduct. Id.
¶24         In assessing the reasonableness of the penalty, the administrative judge
      found that the deciding official properly considered t he Douglas factors in
      deciding that a 30-day suspension was appropriate. ID at 34. In particular, the
                                                                                 13

administrative judge noted that the deciding official considered the repeated and
intentional nature of the appellant’s misconduct, her loss of trust an d confidence
in the appellant as a result of her failure to report to work or comply with
standard instructions to justify her absence, the appellant’s prior disciplinary
record, and her failure to express remorse or recognize that she had done anything
wrong.   ID at 33-34.    The administrative judge also noted that the deciding
official considered the appellant’s years of service an d record of good
performance as mitigating factors. ID at 34. The administrative judge found that
the penalty was warranted under the circumstances, was within the tolerable
limits of reasonableness, and promoted the efficiency of the service.            Id.
Recognizing that the Board must accord proper deference to the agency’s primary
discretion in managing its workforce, we see no reason to disturb this finding.
See Douglas, 5 M.S.P.R. at 306.      Accordingly, we affirm the initial decision
as modified.

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request further review of this final decision. There are several options for further
review set forth in the paragraphs below. You may choose only one of these
options, and once you elect to pursue one of the avenues of review set forth
below, you may be precluded from pursuing any other avenue of review.

Discrimination Claims: Administrative Review
      You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC).                Title 5
                                                                                   14

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

You should send your request to EEOC no later than 30 calendar days after your
receipt of this order.     f you have a representative in this case, and your
representative receives this order before you d o, 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. § 2000e-5(f) and
29 U.S.C. § 794a.

Other Claims: Judicial Review
      If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U .S. Court of Appeals for the
Federal Circuit or by any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time.
      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 about the U.S. Court of Appeals for the Federal Circuit 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.            Additional
information about other courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      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
                                                                                 16

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