                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     TANYA F. PELCHER-HERRING,                       DOCKET NUMBER
                   Appellant,                        DC-0752-13-0152-B-1

                  v.

     FEDERAL MEDIATION AND                           DATE: November 12, 2014
       CONCILIATION SERVICE,
                  Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Tanya F. Pelcher-Herring, Brentwood, Maryland, pro se.

           William B. Wiley, Esquire, San Francisco, California, 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 remand initial decision
     which denied her affirmative defenses under 5 U.S.C. § 2302(b)(9)(B) and
     (b)(12). For the reasons set forth below, the appellant’s petition for review is


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     DISMISSED      as     untimely      filed    without   good   cause   shown.      5 C.F.R.
     § 1201.114(e), (g).

                                                 BACKGROUND
¶2         The appellant filed an initial appeal of her removal based on her medical
     inability to perform the duties of her position. Initial Appeal File (IAF), Tab 1.
     In a nonprecedential remand order, we affirmed the majority of the administrative
     judge’s initial decision sustaining the appellant’s removal and denying her
     affirmative defenses of discrimination, whistleblower reprisal, harmful error, and
     due process violations.     MSPB Docket No. DC-0752-13-0152-I-1, Petition for
     Review File, Tab 6, Remand Order at 2-3 (Jan. 23, 2014). Upon reviewing the
     appellant’s initial appeal and the administrative judge’s prehearing orders and
     initial decision, however, we found that the administrative judge failed to address
     the   appellant’s     affirmative     defenses    of   prohibited     personnel   practices
     under 5 U.S.C. § 2302(b)(9)(B) and (b)(12). Id. at 3. We remanded the case to
     the administrative judge with instructions to apprise the appellant of her burdens
     to establish these defenses, to hold a supplemental hearing, and to reissue the
     initial decision addressing these claims. Id. at 18-19. We further explained that,
     if the administrative judge denied these affirmative defenses, he could readopt the
     prior initial decision sustaining the appellant’s removal and denying the other
     affirmative defenses. Id. at 19-20.
¶3         Following our remand order, the administrative judge allowed the parties a
     limited opportunity to develop the record on the issues raised in connection with
     the appellant’s affirmative defenses under 5 U.S.C. § 2302(b)(9)(B) and (b)(12),
     and he held a supplemental hearing. On July 2, 2014, the administrative judge
     issued a remand initial decision denying the appellant’s affirmative defenses,
     finding that, although she established that she engaged in a protected activity
     under section 2302(b)(9)(B) by testifying and assisting other employees with
     equal employment opportunity and Office of Special Counsel complaints, she
                                                                                          3

     failed to establish that any of the agency officials involved in her removal
     proceedings were aware of her protected activity. Remand Appeal File, Tab 24,
     Remand Initial Decision (RID) at 5-6. The administrative judge then readopted
     the findings in the prior initial decision sustaining her removal and denying her
     other affirmative defenses. RID at 6.
¶4         The appellant filed a petition for review of the initial decision on August 7,
     2014, via the Board’s e-Appeal system. Petition for Review (PFR) File, Tab 1.
     The administrative judge’s initial decision, however, became final on August 6,
     2014. RID at 7; 5 C.F.R. § 1201.113. In response to the Board’s timeliness
     questionnaire, the appellant alleged that she did not receive the initial decision
     until July 8, 2014, 6 days after it was issued by the administrative judge, and that
     she also experienced a medical condition during the petition for review filing
     period which established good cause for her untimely filing. PFR File, Tabs 1, 4.
     The agency has filed a response in opposition to the petition for review, and the
     appellant has filed a reply. PFR File, Tabs 5-6.

                         DISCUSSION OF ARGUMENTS ON REVIEW
¶5         A petition for review generally must be filed within 35 days after the date
     of issuance of the initial decision or, if the party filing the petition shows that the
     initial decision was received more than 5 days after it was issued, within 30 days
     after the party received the initial decision. 5 C.F.R. § 1201.114(e). Here, the
     initial decision was issued on July 2, 2014, thus making the petition for review
     filing deadline August 6, 2014. RID at 7. The appellant, however, filed her
     petition for review on August 7, 2014. PFR File, Tab 1. Although the appellant
     claims she received the remand initial decision on July 8, 2014, PFR File, Tab 1
     at 3, the appellant was registered as an e-filer, see IAF, Tab 1 at 2, and pursuant
     to 5 C.F.R. § 1201.14(m)(2), the appellant is deemed to have received the remand
     initial decision on the date of its electronic submission, July 2, 2014. We thus
     find that the appellant filed her petition for review 1 day late.
                                                                                          4

¶6         The Board will waive the time limit for filing a petition for review only
     upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g).
     The party submitting the untimely petition for review has the burden of
     establishing good cause for the untimely filing by showing that she exercised due
     diligence or ordinary prudence under the particular circumstances of the case.
     Palermo v. Department of the Navy, 120 M.S.P.R. 694, ¶ 4 (2014). To determine
     whether a party has established good cause, the Board will consider the length of
     the delay, the reasonableness of the excuse and the party’s showing of due
     diligence, whether she is proceeding pro se, and whether she has presented
     evidence of circumstances beyond her control that affected her ability to comply
     with the time limits or of unavoidable casualty or misfortune which similarly
     shows a causal relationship to her inability to timely file her petition. Id.
¶7         We find that the appellant has not established good cause for accepting her
     untimely petition for review. Although the appellant is proceeding pro se, and
     her petition for review was filed only 1 day late, we find that the appellant has
     offered no justification for her late filing other than to assert that she received the
     remand initial decision 6 days after it was electronically transmitted to the
     parties.   See PFR File, Tab 1 at 3.       Pursuant to 5 C.F.R. § 1201.14(m)(2),
     however, Board documents served electronically on registered e-filers are deemed
     received on the date of electronic submission, and the appellant has offered no
     basis to substantiate her claim that she received the decision 6 days after it was
     electronically issued. See PFR File, Tabs 1, 4. We therefore find no reason to
     deviate from the presumption of receipt under 5 C.F.R. § 1201.14(m)(2). See
     Palermo, 120 M.S.P.R. 694, ¶ 5 (explaining that under limited circumstances, the
     Board will excuse late filings caused by difficulties encountered with the
     e-Appeal system). The appellant, moreover, has not argued that she encountered
                                                                                           5

     filing difficulties with the e-Appeal system during the petition for review filing
     period which could excuse her late filing. 2 PFR File, Tab 4 at 5.
¶8         The Board has also found that a party’s misinterpretation or misreading of
     the filing deadline, without more, does not establish good cause for an untimely
     filing where the initial decision informs the parties of the proper filing deadline
     and provides notice of the process for filing a petition for review. See Waldo v.
     Department of the Air Force, 93 M.S.P.R. 58, ¶ 9 (2002). We find no reason to
     conclude that any confusion the appellant may have encountered establishes good
     cause for her untimely filing. See id. Additionally, although the appellant is
     proceeding pro se, and the delay in her filing is minimal, these factors, alone, do
     not   demonstrate     good   cause.       See   Sutton    v.   Office   of   Personnel
     Management, 113 M.S.P.R. 576, ¶ 12 (2010), aff’d, 414 F. App’x 272 (Fed. Cir.
     2011), cert denied, 132 S. Ct. 837 (2011).
¶9         Finally, we find that the appellant’s medical condition, which arose during
     the petition for review filing period, does not establish good cause for her
     untimely filing.    PFR File, Tab 4 at 5 (the appellant’s assertion that she had
     surgical procedures and follow up appointments on July 15 and 16, 2014).
     Although the appellant has submitted documentation establishing that she
     attended medical appointments on two dates in July 2014, the appellant has not
     explained how her medical condition or her attendance at these appointments
     prevented her from timely filing her petition for review or from requesting an
     extension of time. See Sutton, 113 M.S.P.R. 576, ¶ 10. The appellant, therefore,
     has not established good cause for her untimely filing based on medical
     incapacity. See id.


     2
       The appellant argues that the e-Appeal system was inaccessible after midnight on
     August 7, 2014, due to system maintenance and that it was not accessible again until the
     morning of August 8, 2014. See PFR File, Tab 4 at 5. Because this system
     maintenance post-dates the remand initial decision’s finality date, we find that it does
     not establish good cause for the appellant’s untimely filing.
                                                                                      6

¶10        Accordingly, we DISMISS the petition for review as untimely filed. This is
      the final decision of the Merit Systems Protection Board regarding the timeliness
      of the petition for review. The remand initial decision, together with the initial
      decision in MSPB Docket No. DC-0752-13-0152-I-1, is the Board’s final decision
      affirming the appellant’s removal from employment and denying her affirmative
      defenses.

                      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
      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
                                                                                    7

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate 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
prepayment of fees, costs, or other security.            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 United States 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
                                                                                  8

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 United States 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 http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
         If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for a list of attorneys who have
expressed interest in providing pro bono representation for Merit Systems
Protection Board appellants before the Federal Circuit.         The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




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