                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     GREGORY MCINNIS,                                DOCKET NUMBER
                 Appellant,                          CH-0752-14-0518-I-1

                  v.

     DEPARTMENT OF EDUCATION,                        DATE: July 20, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Gregory McInnis, Indianapolis, Indiana, pro se.

           Eun Kim, Esquire, 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 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
     erroneous application of the law to the facts of the case; the administrative

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).
¶2        In March 2011, the appellant, a GS-13 Senior Institutional Review
     Specialist, was counseled about his failure to comply with time and attendance
     reporting procedures and, in connection therewith, was notified that his use of
     sick leave would be restricted for a 6-month period, effective September 9, 2011,
     requiring him to submit medical documentation of incapacitation to support any
     request for approval of leave because of sickness.      Initial Appeal File (IAF),
     Tab 14, Subtab 4(d)(4). He was again counseled in March 2012, and advised that,
     because he was still failing to follow procedures, the sick leave restrictions would
     be continued for another 6-month period. Id., Subtab 4(d)(5). By memorandum
     of December 13, 2012, the agency placed the appellant on leave restriction for
     6 more months, setting out what he was required to do in the future if he was ill
     and unable to report for duty, if he had scheduled medical appointments, if he was
     requesting annual leave, and if he was going to be arriving late to work. Id.,
     Subtab 4(d)(6). And, on June 10, 2013, based on the appellant’s poor showing of
     compliance, the agency again extended his leave restrictions for another 6‑month
     period. Id., Subtab 4(d)(7).
¶3        The agency removed the appellant from his position, effective January 24,
     2014, based on: (1) absence without leave (AWOL); (2) failure to follow leave
     procedures; and (3) failure to follow instructions. IAF, Subtabs 4(a), (b), and (d).
                                                                                         3

     In the first charge, the agency alleged that, on 47 occasions from December 20,
     2012, to August 22, 2013, totaling 298 hours, the appellant either did not report
     to work for part of the day, left early, or did not report at all, that his absences
     were not approved in advance, and that he supplied no documentation in support
     of his absences. Id., Subtab 4(d) at 293-94. In the second charge, the agency
     alleged that, on 61 occasions, again from December 20, 2012, to August 22, 2013,
     the appellant did not submit evidence in support of his absences or otherwise
     notify his supervisor in accordance with the requirements of his leave restrictions
     memoranda. In each specification, the agency set out the appellant’s action or
     inaction, the explanations he provided for his absences when he provided
     explanations, and his failure to submit supporting documentation, as required. Id.
     at 295-303. In the third charge, the agency alleged that the appellant failed to
     follow instructions by not timely completing required security training and not
     initiating procedures for a security breach incident, resulting in the matter being
     reassigned to another employee for completion months later. Id. at 304-05. In
     determining to impose a removal penalty, the agency considered the appellant’s
     past disciplinary record consisting of a 14-day suspension in February 2011, in
     part for his failure to follow supervisory instructions and established work
     procedures, and a 30-day suspension in December 2012 for AWOL and failure to
     follow leave requesting and reporting procedures. Id. at 307.
¶4        On appeal, the appellant challenged the charges and alleged that other
     employees had committed similar infractions but were not removed. IAF, Tab 18
     at 5-6. He also raised several affirmative defenses. Specifically, he claimed that
     the agency’s action was in retaliation for protected disclosures he made regarding
     the underperforming of Perot Systems contracts with Federal Student Aid (FSA). 2

     2
       The appellant raised this same disclosure in an individual right of action appeal he
     filed with the Board on November 16, 2012. In that appeal, he claimed that the agency
     took other personnel actions against him based on this disclosure and because he was
     perceived as a whistleblower. The administrative judge denied the appellant’s request
     for corrective action. McInnis v. Department of Education, MSPB Docket No. CH-
                                                                                        4

     Id. at 6-7. The appellant also alleged that the agency removed him because of
     complaints he filed alleging that his second-line supervisor was “intertwined”
     with female subordinates to whom he provided undeserved promotions, raises,
     and bonuses. Id. at 8-9. The appellant alleged disability discrimination based on
     a disabling knee condition, id. at 10-17, and military status discrimination based
     on his status as a disabled veteran, id. at 17. He requested a hearing. IAF, Tab 1
     at 2.
¶5           Thereafter, the administrative judge issued an initial decision affirming the
     agency’s action.     IAF, Tab 18, Initial Decision (ID) at 1, 40.     Regarding the
     AWOL charge, she reviewed the evidence the agency submitted in support of all
     the specifications, ID at 9, and noted that the appellant did not deny that he was
     absent during the alleged periods or that his absences were recorded as AWOL,
     ID at 7. She considered his claim that his absences were the result of his medical
     condition, but found that, of the 47 specifications, only 4 could be attributed to
     any illness whatsoever, that none of those related to his medical condition or
     disability, and that, in any event, he failed to submit leave requests and
     supporting documentation in connection with these absences.          ID at 10.   The
     administrative judge sustained the remaining specifications except for three
     instances when the appellant’s supervisor acknowledged that the appellant
     should not have been charged AWOL because of the agency’s liberal leave policy
     and because he did submit leave requests in connection with his arriving late or
     leaving early on those dates due to extreme inclement weather.          ID at 11-15.
     Notwithstanding, the administrative judge found the AWOL charge sustained
     (44 occasions, 293 hours).      ID at 15.   Regarding the failure to follow leave
     procedures charge, the administrative judge found that the appellant was well
     aware of the procedures required, having been disciplined previously for the same



     1221-13-0118-W‑2, Initial Decision at 2, 9 (Dec. 20, 2013).      The initial decision
     became final when neither party filed a petition for review.
                                                                                      5

     type of behavior. ID at 16. She further found that he did not dispute that he was
     absent or tardy on the dates in question, but claimed that he always notified his
     supervisor.      The administrative judge found, however, that the agency’s
     documentary and testimonial evidence showing that the appellant failed to
     comply with his leave restrictions was more credible than his contrary assertions.
     Id. As to the 61 specifications, the administrative judge sustained all except for
     3 specifications having to do with the inclement weather, ID at 18, and another
     instance wherein the appellant requested advanced leave during a time when the
     agency’s      time   and   attendance   database,   WebTA,   was   malfunctioning.
     Notwithstanding, the administrative judge found the charge of failure to follow
     leave procedures sustained (57 specifications). ID at 20. She also sustained both
     specifications of the charge of failure to follow instructions, ID at 20‑22, and
     concluded that discipline for the sustained charges promoted the efficiency of the
     service, ID at 22‑23.
¶6        As to the appellant’s affirmative defenses, the administrative judge first
     addressed his whistleblowing claim. She found that he failed to show that he
     reasonably believed that the agency’s actions regarding the Perot Systems
     contracts evidenced a gross waste of funds, gross mismanagement, or a violation
     of law, rule, or regulation, ID at 26-27, and that he provided no evidence to
     support his claim that the agency mistakenly viewed his disclosures as protected
     activity, thereby perceiving him as a whistleblower, ID at 27. The administrative
     judge further found that, even if the appellant showed that he had made a
     protected disclosure or that the agency perceived him as a whistleblower, he
     failed to show that either was a contributing factor in his removal because of the
     time lapse between the disclosures and the relevant action. ID at 27-29. The
     administrative judge further found that, even if the appellant established that his
     disclosures were a contributing factor in the agency’s action, the agency showed
                                                                                           6

     by clear and convincing evidence that it would have removed the appellant, even
     absent any disclosures. 3 ID at 29‑31.
¶7         As to the appellant’s claim of disability discrimination, the administrative
     judge found that he was disabled by his knee condition that he sustained during
     his time in the military and that he was a qualified individual with a disability, ID
     at 33-34, but that he failed to show that his removal was a result of his disability
     because his numerous absences were not attributed to his knee condition, but
     rather to other unspecific illnesses, a court appearance, home maintenance issues,
     a personal appointment, and a missed train, and that, for a number of the
     absences, he had provided no specific reasons, ID at 34-35. To the extent the
     appellant argued that he was treated more harshly than others when it came to his
     medical issues, the administrative judge found that he failed to prove that his
     disabling condition was a motivating factor in the agency’s decision to remove
     him. ID at 35‑36.
¶8         The administrative judge found unsupported the appellant’s allegation of
     military status discrimination under the Uniformed Services Employment and
     Reemployment Rights Act (USERRA) on the basis that his claim that the
     agency’s action was based on his disability, as opposed to his military status, was
     not protected under USERRA. ID at 36-37; see McBride v. U.S. Postal Service,
     78 M.S.P.R. 411, 414-15 (1998).
¶9         Finally, the administrative judge addressed the reasonableness of the
     removal penalty, finding that the deciding official carefully considered the



     3
       In addressing the appellant’s claim that the agency retaliated against him because of
     complaints he filed against his second-level supervisor regarding his allegedly improper
     actions with female subordinates to whom he provided special treatment, the
     administrative judge found no evidence that the appellant ever filed a sex
     discrimination complaint or engaged in other activity protected by 5 U.S.C.
     § 2302(b)(9), and that, even if he had, he did not show that the accused officials or
     actors in this appeal were aware of it. ID at 31‑32.
                                                                                          7

      appropriate Douglas factors 4 in determining to impose removal for the sustained
      charges and that the decision was within the tolerable limits of reasonableness.
      ID at 37‑40.
¶10        The appellant has filed a petition for review, Petition for Review (PFR)
      File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 4.
¶11        On review, the appellant first argues that the agency issued the letter of
      decision outside of the required time frame as set forth in section 41.09 of the
      collective bargaining agreement; that is, no later than 15 workdays from the
      agency’s receipt of his response to the notice of proposed removal. PFR File,
      Tab 1 at 3. The record does not reflect that the appellant raised any claim of
      harmful error below.       IAF, Tab 18 (Summary of Prehearing Conference).
      Moreover, the administrative judge advised the parties that, if either believed her
      summary of the conference to be incorrect, that party must notify her within
      7 days of the Order and that, in the absence of any such notice, the parties would
      be bound by the issues as set forth in the summary. Id. The appellant did not
      note any exception to the summary. Because he failed to preserve an objection to
      the absence of this claim from the issues to be considered below, he is precluded
      from raising it on review. Brown v. Department of the Army, 96 M.S.P.R. 232,
      ¶ 6 (2004).
¶12        In challenging the administrative judge’s upholding of the AWOL charge,
      the appellant argues generally that, because he was on leave restriction, he was
      unable to record his time and attendance and that he had, in fact, been directed by
      his supervisor not to enter any information in WebTA. PFR File, Tab 1 at 4-5.
      He refers to an email allegedly sent to him by his supervisor, id. at 7, and the
      supervisor’s hearing testimony, both of which he argues are supportive of his
      claim. However, he did not submit the email into the record, and, in fact, the

      4
        In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
      articulated a nonexhaustive list of factors, both aggravating and mitigating, that are
      relevant to the penalty determination in adverse action cases.
                                                                                          8

      supervisor testified that, while the appellant was directed not to complete his time
      sheets, he remained at all times responsible for documenting reasons or
      justifications for taking leave. Hearing Transcript (HT) at 89-92. As such, the
      appellant’s unsupported arguments in this regard do not outweigh the agency’s
      contrary preponderant evidence.
¶13        The appellant challenges most, if not all, of the 44 specifications of AWOL
      that the administrative judge sustained. 5 PFR File, Tab 1 at 7-13. For example,
      the appellant argues that well more than four of the specifications were weather
      related, and he claims that, in these cases, he timely notified his supervisor that
      he would not be able to come to work and/or requested administrative leave. Id.
      at 8-9, 10-11. However, the weather-related excuses the appellant now offers are
      different than the excuses he offered below and are contradicted by the agency’s
      supporting documentation. See, e.g., IAF, Tab 4(d)(7). As to his other absences,
      the appellant insists that he reported to duty and came to work on time. PFR File,
      Tab 1 at 11. Again, this is not an argument the appellant raised below, and it too
      is contradicted by the agency’s evidence. And, as to numerous other absences,
      the appellant claims that he notified his supervisor that he was incapacitated for
      duty by virtue of his being a disabled veteran.        Id. at 11‑12.   However, the
      appellant did not raise this argument below, and therefore the Board will not now
      consider it. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).
      In many of the other instances, the appellant offered contrary excuses below for
      his absences.    See, e.g., IAF, Tab 14, Subtab 4(d)(7).        In sum, he has not
      supported his claims on review with any documentation, whereas the agency has,
      in each instance, provided documentation sufficient to establish the AWOL
      charge by a preponderance of the evidence.




      5
        The appellant even challenges the three specifications that the administrative judge
      did not sustain. PFR File, Tab 1 at 8-9; ID at 15.
                                                                                       9

¶14        As to charge 2, failure to follow leave procedures, the appellant argues
      generally, as he did in his challenge to the AWOL charge, that his supervisor had
      directed him not to enter any information in WebTA. PFR File, Tab 1 at 13-14.
      As we have found, however, the appellant’s supervisor testified that, while the
      appellant was directed not to complete his time sheets, he remained at all times
      responsible for documenting reasons or justifications for taking leave, HT
      at 89‑92, and the record includes several examples wherein he did, in fact, submit
      leave requests for approval, see, e.g., IAF, Tab 14, Subtab 4(d)(10), (12). As for
      the email the appellant contends establishes the supervisor’s directive that he not
      enter information into WebTA, as we have found, the appellant did not submit
      any such email into the record. Therefore, he has not shown any error in the
      administrative judge’s finding that the agency proved this charge by preponderant
      evidence because the appellant was given proper instructions for requesting leave,
      yet failed to comply.    See Hamilton v. U.S. Postal Service, 71 M.S.P.R. 547,
      555‑57 (1996).
¶15        Regarding the first specification of charge 3, failure to timely complete
      security training, the appellant argues on review that he already had completed
      the training by means of a Department-approved workaround, told his supervisor
      so, and provided him a copy, even before the supervisor specifically reminded
      him to do it. PFR File, Tab 1 at 14. In support, the appellant refers to an email
      sent to staff acknowledging and describing the workaround.           IAF, Tab 14,
      Subtab 4(d) at 228. Although the administrative judge did not specifically find
      that the appellant took the training by means of the workaround, she nonetheless
      found that he did not email the agency of his completion, as required, he therefore
      did not complete the training, and that, because he did not, the agency proved that
      he failed to follow instructions. Id.; ID at 21. Although the appellant argues on
      review that he did notify his supervisor that he had completed the training, he
                                                                                         10

      submitted no evidence in support of his claim. 6 The agency, on the other hand,
      submitted notice of the training requirement, IAF, Tab 14, Subtab 4(d)(28),
      various reminders, id., Subtab 4(d)(29), specific notification of the due date, id.,
      Subtab 4(d)(30), and an email showing the appellant as one of several employees
      who had not yet completed the training, id., Subtab 4(d)(31).          Therefore, the
      appellant has not shown error in the administrative judge’s finding that the
      agency proved this specification. Hamilton, 71 M.S.P.R. at 555‑57.
¶16           As to the second specification of charge 2, failure to timely initiate certain
      required security breach procedures and update the results on PCNet, the
      appellant argues on review that this only required a call to the specific institution
      at issue, and, inexplicably, that the matter “was over 4 years old.”       PFR File,
      Tab 1 at 16.      The administrative judge found that the appellant was given the
      tasks on May 29, 2013, and that, when they had not been completed by
      August 29, 2013, they were reassigned to another employee.            ID at 22; IAF,
      Tab 14, Subtab 4(d)(32).           The appellant’s claim that the task was easily
      accomplished does not explain why he did not accomplish it. As such, he has not
      shown error in the administrative judge’s finding that the agency proved this
      specification, and thus, the charge.
¶17           On review, the appellant challenges the administrative judge’s finding that
      he did not establish his claim that the agency’s action was taken in retaliation for
      his whistleblowing disclosure regarding the Perot Systems contract. PFR File,
      Tab 1 at 16-17. He alleges that a number of managers knew about his disclosure
      because they were present during discussions regarding the contract, and that the
      personnel action took place within a period of time such that a reasonable person
      could conclude that the disclosure was a contributing factor. He also contends
      that the agency failed to establish that the evidence in support of the charges is
      clear and convincing. Id. In addressing the appellant’s whistleblowing claim, the

      6
          The appellant did not testify at the hearing.
                                                                                           11

      administrative judge found that, based on his lack of knowledge about the
      contract’s terms and conditions, payments made by FSA, negotiations concerning
      performance, or any other relevant circumstances pertaining to the agreement
      with Perot Systems, the appellant failed to prove that he reasonably believed that
      the agency engaged in a gross waste of funds, gross mismanagement, or a
      violation of law, rule, or regulation, and that he therefore did not establish that he
      made a protected disclosure. ID at 26-27. The appellant has not challenged that
      finding on review, and we discern no basis upon which to reweigh the evidence or
      substitute our assessment of the evidence for that of the administrative judge.
      Crosby v. U.S. Postal Service, 71 M.S.P.R. 98, 105-06 (1997).           Because the
      appellant failed to show that he made a protected disclosure, his claim of
      retaliation for whistleblowing must fail. See Wadhwa v. Department of Veterans
      Affairs, 110 M.S.P.R. 615, ¶ 5, aff’d, 353 F. App’x 435 (Fed. Cir. 2009). The
      appellant’s challenges to the administrative judge’s alternate findings, that the
      agency established by clear and convincing evidence that it would have removed
      him absent any protected disclosure, cannot change that result and are
      therefore unavailing.
¶18         Finally, the appellant challenges on review the administrative judge’s
      finding that he failed to establish his claim of disability discrimination. PFR File,
      Tab 1 at 17. He claims that the agency placed him on AWOL because of his
      disability, and denied him the use of flexiplace or other accommodations,
      including leave under the Family and Medical Leave Act (FMLA).                Id.   The
      appellant has not, however, shown error in the administrative judge’s finding that
      the absences the agency relied upon in its decision to remove him were not
      related to the knee condition he claimed as disabling. ID at 34. Rather, as the
      administrative judge found, the record showed that the reasons the appellant
      provided for those absences included court appearances, unspecified illnesses not
      related   to   his   knee,   home   maintenance   matters,   weather,   and     missed
      transportation, and that, in the remaining instances, he provided no explanations.
                                                                                     12

      ID at 8.   Therefore, the appellant has not shown error in the administrative
      judge’s finding that the agency did not charge him AWOL because of his
      disability. Moreover, while he claims that the agency did not allow him to use
      flexiplace as it did others, he also has not challenged the administrative judge’s
      findings that his performance was rated as unsatisfactory for FY 2012, 7 ID at 35,
      and that poor performance may properly be considered in the agency’s decision to
      allow flexiplace, ID at 11; IAF, Tab 20 at 15. In addition, while the appellant
      asserts that the agency should have granted him leave under the FMLA, he
      has not shown that the administrative judge erred in finding that he never
      formally requested such leave, even though his supervisor suggested that he do
      so. ID at 13; IAF, Tab 14, Subtab 4(d)(6), (7). Further, because, as noted, the
      appellant did not attribute his numerous absences to his disabling medical
      condition or allege that he was incapacitated on the dates in question, he
      would not have been entitled to FMLA leave for those dates in any event. See,
      e.g., Jones v. U.S. Postal Service, 103 M.S.P.R. 561, ¶ 13 (2006), aff’d,
      248 F. App’x 160 (Fed. Cir. 2007). In sum, the administrative judge correctly
      found that the appellant did not establish his claim of disability discrimination
      because he did not show that the action appealed was based upon his disability,
      and because, to the extent that he claimed disparate treatment regarding the issue
      of possible accommodations, he failed to show that his disability was a
      motivating factor in the agency’s decision to remove him. Forte v. Department of
      the Navy, 123 M.S.P.R. 124, ¶ 27 (2016); ID at 33‑36.
¶19        On review, the appellant also argues generally that he was denied the
      opportunity to furnish documentation, PFR File, Tab 1 at 21, and he has
      submitted such documents with his petition for review. Certain of them are news
      reports on the weather conditions on some of the dates at issue. Id. at 25‑27,


      7
        The appellant was also denied a within-grade increase to step 7 on December 20,
      2012. IAF, Tab 17 at 5‑9.
                                                                               13

30‑37. The appellant did not, however, submit these documents below. IAF,
Tab 18. His failure to show that they were unavailable prior to the close of the
record below precludes them from being considered for the first time on review.
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). The same may be
said for a document relating to train delays, although it does not appear that the
date of the article coincides with any of the dates at issue.    PFR File, Tab 1
at 38‑39. Other documents the appellant has submitted on review are a part of
the record below, id. at 46-47; IAF, Tab 14, Subtab 4(d)(30), and therefore they
are not new evidence. Meier v. Department of the Interior, 3 M.S.P.R. 247, 256
(1980).      Finally, documents related to the appellant’s alleged protected
disclosure, PFR File, Tab 1 at 49-50, 53-56, are also not new.          Avansino,
3 M.S.P.R. at 214. And, to the extent the appellant argues generally that certain
documents related to his whistleblowing disclosure were not considered or
mentioned, PFR File, Tab 1 at 21, it is well established that an administrative
judge’s failure to mention all of the evidence of record does not mean that she
did not consider it in reaching her 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).

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      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). See 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. 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
                                                                                 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.
