                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     VICTORIA L. BAILEY,                             DOCKET NUMBER
                    Appellant,                       PH-1221-15-0181-W-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: September 20, 2016
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Victoria L. Bailey, Philadelphia, Pennsylvania, pro se.

           Marcus S. Graham, Esquire, Pittsburgh, Pennsylvania, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed her individual right of action (IRA) appeal as barred by res judicata.
     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


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 interpretation of statute or regulation or 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. 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        On November 16, 2010, the agency proposed to remove the appellant for
     unacceptable     performance.    Bailey   v.   Department   of   Veterans   Affairs,
     MSPB Docket No. PH-0432-11-0337-I-1, Initial Appeal File (0337 IAF), Tab 5,
     Subtab 4. On January 7, 2011, she filed an equal employment opportunity (EEO)
     complaint over the proposed action. Bailey v. Department of Veterans Affairs,
     MSPB Docket No. PH-1221-15-0181-W-1, Initial Appeal File (0181 IAF), Tab
     11, Subtab 4. On January 31, 2011, the agency issued a decision to remove the
     appellant, effective February 4, 2011. 0337 IAF, Tab 5, Subtab 1. On February
     22, 2011, the agency’s Office of Resolution Management accepted for
     investigation the appellant’s claim that her removal was proposed and effected
     due to discrimination based on race and national origin and in reprisal for her
     prior EEO activity. 0181 IAF, Tab 11, Subtab 5.
¶3        On March 1, 2011, the appellant filed a Board appeal challenging her
     removal. 0337 IAF, Tab 1, Tab 13 at 1-2. On July 26, 2011, the agency issued a
     Final Agency Decision (FAD) on the appellant’s EEO complaint finding that she
                                                                                              3

     failed to prove that she was discriminated against as alleged. 2 0181 IAF, Tab 11,
     Subtab 6. On August 17, 2011, based on written requests from the appellant and
     her attorney, 0337 IAF, Tabs 18-19, the administrative judge dismissed the
     appellant’s appeal as withdrawn, 0337 IAF, Tab 20, Initial Decision (0337 ID) at
     1-2, and that decision became the Board’s final decision when neither party filed
     a petition for review.
¶4         On July 26, 2014, the appellant filed a complaint with the Office of Special
     Counsel (OSC) in which she alleged that she disclosed to the Equal Employment
     Opportunity Commission and to a congressman that her supervisor had
     manipulated data, and that in retaliation for that disclosure, the agency removed
     her. 0181 IAF, Tab 3. On January 13, 2015, the appellant filed an IRA appeal
     with the Board, 3 0181 IAF, Tab 1, and she requested a hearing, id. at 2.
¶5         During adjudication of the appeal, the administrative judge advised the
     parties that he construed the withdrawal of the appellant’s first appeal to have
     been “with prejudice.” 0181 IAF, Tab 24 at 2-3. The administrative judge then
     set out the criteria for dismissing an appeal as barred by res judicata and directed
     the appellant to show cause why her current appeal should not be dismissed on
     that basis. Id. at 3-4. In her response, the appellant requested a hearing on the
     merits of her IRA appeal. 0181 IAF, Tab 24.
¶6         In an initial decision based on the written record, the administrative judge
     first found that the appellant filed her EEO complaint after the agency had
     proposed but had not yet effected her removal, that the agency subsequently
     notified her that it was accepting her complaint as an allegation of retaliation
     regarding the decision to remove her as well, that this occurred before she filed

     2
       The appellant subsequently filed suit in the U.S. District Court for the Eastern District
     of Pennsylvania. 0181 IAF, Tab 11, Subtab 9. It appears that the court dismissed the
     suit for failure to prosecute, and the U.S. Court of Appeals for the Third Circuit
     affirmed the dismissal. Id., Subtabs 10-11.
     3
      According to the appellant, OSC issued her a closure letter on November 30, 2014.
     0181 IAF, Tab 1 at 4.
                                                                                       4

     her Board appeal, and that there was no indication that she objected to including
     the actual removal in the EEO complaint at that, or any other, time. 0181 IAF,
     Tab 25, Initial Decision (0181 ID) at 5. Despite the lack of evidence showing
     that the appellant amended her EEO complaint to include the actual removal
     action prior to filing her Board appeal, the administrative judge found, based on
     the totality of the circumstances, that, by their actions, the parties demonstrated
     that they considered the EEO complaint to include both the removal decision as
     well as the proposal to remove, and that therefore the appellant elected to pursue
     an EEO complaint of her removal prior to her first Board appeal. 0181 ID at 5-6.
     The administrative judge further found that, after issuance of the FAD, the
     appellant, who was represented by counsel, withdrew her Board appeal and
     several days later filed suit in U.S. District Court and that, in so doing, she made
     a knowing, informed election, noting that she did not challenge the administrative
     judge’s initial decision dismissing her appeal, which stated that the withdrawal
     was an act of finality. 0337 ID at 1-2. The administrative judge concluded that
     the withdrawal of the appellant’s Board appeal was “with prejudice,” and that a
     dismissal on that basis is a final judgment on the merits for purposes of res
     judicata. 0181 ID at 7. Concluding that the other elements were also satisfied,
     the administrative judge dismissed the appellant’s IRA appeal as barred by res
     judicata. 0181 ID at 1, 7-8.
¶7        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 3.
¶8        Before addressing the dispositive issue in this matter, the applicability of
     the doctrine of res judicata, we clarify why the Board does not lack jurisdiction
     over this appeal under an election of remedies theory. An employee who has
     been subjected to an action that is appealable to the Board and alleges that she
     has been affected by a prohibited personnel practice other than a claim of
     discrimination under 5 U.S.C. § 2302(b)(1) may elect to pursue a remedy through
     one, and only one, of the following remedial processes:       (1) an appeal to the
                                                                                          5

     Board under 5 U.S.C. § 7701; (2) a grievance filed pursuant to the provisions of
     the negotiated grievance procedure; or (3) a complaint following the procedures
     for seeking corrective action from OSC under 5 U.S.C. §§ 1211-1222. Agoranos
     v. Department of Justice, 119 M.S.P.R. 498, ¶ 14 (2013); see 5 U.S.C. § 7121(g).
     For adverse actions appealable to the Board under chapters 43 and 75 of title 5,
     an employee’s election of remedies under 5 U.S.C. § 7121(g) must be knowing
     and informed and, if it is not, it will not be binding upon the employee.
     Agoranos, 119 M.S.P.R. 498, ¶ 16.
¶9         On review, the appellant does not challenge the administrative judge’s
     finding that she filed a Board appeal before she filed the complaint with OSC that
     led to the filing of this IRA appeal. However, the appellant’s initial filing with
     the Board did not constitute a valid, informed election of remedies. See id. In its
     decision letter, the agency informed the appellant that she could appeal the
     removal action to the Board or grieve under the negotiated grievance procedures
     or file an EEO complaint, and that whichever was filed first would be considered
     an election by her to proceed in that manner. 0337 IAF, Tab 5, Subtab 1 at 2. As
     in Agoranos, the agency removed the appellant without notifying her of her right
     to file a request for corrective action with OSC under subchapters II and III of
     chapter 12 of title 5. It also did not notify her of the effect that filing under
     another provision would have on her right to file a complaint before OSC and an
     IRA appeal before the Board. Nothing in the record reflects that the appellant
     made a knowing and informed waiver of her right to file a complaint seeking
     corrective action from OSC and the Board. Therefore, the election requirement of
     5 U.S.C. § 7121(g) does not prevent the Board from finding that it has
     jurisdiction over this appeal. 4    Johnson v. Department of Veterans Affairs,
     121 M.S.P.R. 695, ¶¶ 6-7 (2014), aff’d, 611 F. App’x 496 (10th Cir. 2015).


     4
       The agency’s decision letter appears to have complied with the Board’s regulations in
     effect at that time regarding notice of appeal rights to the Board. See 5 C.F.R.
     § 1201.21(d) (2011). Those regulations were amended in November 2012 to provide
                                                                                             6

¶10         However, even if a Board appeal is not barred by section 7121(g), it may be
      barred under the doctrine of res judicata.        Johnson, 121 M.S.P.R. 695, ¶ 9;
      Collins v. Department of Transportation, 89 M.S.P.R. 582, ¶ 13 (2001). Under
      that doctrine, a valid, final judgment on the merits of an action bars a second
      action involving the same parties or their privies based on the same cause of
      action.   Johnson, 121 M.S.P.R. 695, ¶ 9. Thus, res judicata precludes parties
      from relitigating issues that were, or could have been, raised in the prior action,
      and applies if: (1) the prior judgment was rendered by a forum of competent
      jurisdiction; (2) the prior judgment was a final judgment on the merits; and
      (3) the same cause of action and the same parties or their privies were involved in
      both cases. Peartree v. U.S. Postal Service, 66 M.S.P.R. 332, 337 (1995).
¶11         The appellant has not shown error in the administrative judge’s finding that
      the criteria for res judicata are met here. The first initial decision, a dismissal of
      the appellant’s removal appeal as withdrawn, was issued by the Board, an
      adjudicatory body of competent jurisdiction. Although the appellant alleges on
      review that no hearing was held and that the merits of the removal action were
      not fully adjudicated, PFR File, Tab 1 at 6, 11, 15, that dismissal was nonetheless
      a final judgment on the merits for purposes of res judicata. Brown v. Department
      of the Navy, 102 M.S.P.R. 377, ¶ 10 (2006) (stating that dismissals with prejudice
      based on a withdrawal of an appeal generally are considered final decisions, and

      that an agency that issues a decision notice to an employee on a matter appealable to the
      Board must provide the employee with, among other things, notice of any right to file a
      grievance or seek corrective action under subchapters II and III of 5 U.S.C. chapter 12.
      See 5 C.F.R. § 1201.21(d) (2013). Nevertheless, regardless of the nature of the notice
      the agency provided to the appellant, the choice of remedy provision of 5 U.S.C.
      § 7121(g) has been in effect since the 1994 amendments to the Whistleblower
      Protection Act. See Edwards v. Department of the Air Force, 120 M.S.P.R. 307, ¶ 12
      (2013). The ultimate question is whether the appellant made a knowing and informed
      election. See Agoranos, 119 M.S.P.R. 498, ¶ 16. There is no indication that the
      appellant was aware, when she first elected to file a Board appeal, that she could
      instead have sought corrective action from OSC and the Board. Johnson v. Department
      of Veterans Affairs, 121 M.S.P.R. 695, ¶ 8 (2014), aff’d, 611 F. App’x 496 (10th Cir.
      2015).
                                                                                           7

      relitigating such appeals is barred by res judicata). In addition, notwithstanding
      the different theories of recovery arising from the appellant’s removal, the same
      cause of action and the same parties were involved in both her initial appeal and
      her IRA appeal. Because res judicata precludes the appellant from relitigating
      issues that were, or could have been, raised in the prior action, Johnson,
      121 M.S.P.R. 695, ¶ 9, the administrative judge properly dismissed this IRA
      appeal as barred under the doctrine of res judicata even though the appellant did
      not raise a whistleblower retaliation claim as an affirmative defense in her first
      appeal of her removal, because she could have raised that claim in her first
      appeal, Zgonc v. Department of Defense, 103 M.S.P.R. 666, ¶ 8 n.* (2006), aff’d,
      230 F. App’x 967 (Fed. Cir. 2007).
¶12         On review, the appellant argues the merits of the removal action and her
      whistleblowing allegation. PFR File, Tab 1 at 1-3, 8-10. However those matters
      do not bear on the dispositive issue in this appeal, the dismissal of the appellant’s
      appeal based on res judicata. Moreover, to the extent the appellant disputes the
      administrative judge’s failure to convene a hearing in her first appeal, id. at 6, as
      noted, she failed to file a petition for review of that first initial decision.
      Therefore, we need not consider these claims. 5

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS 6
            You have the right to request review of this final decision by the U.S.
      Court of Appeals for the Federal Circuit.


      5
       With her petition for review, the appellant has submitted several documents related to
      her 2011 EEO complaint. PFR File, Tab 1 at 19-22. These documents are neither new
      nor material, and therefore we have not considered them. Avansino v. U.S. Postal
      Service, 3 M.S.P.R. 211, 214 (1980); Russo v. Veterans Administration, 3 M.S.P.R. 345,
      349 (1980).
      6
        The initial decision did not afford the appellant notice of appeal rights under the
      Whistleblower Protection Enhancement Act of 2012. We have provided notice of such
      appeal rights herein.
                                                                                    8

      The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you want to request review of the Board’s decision concerning your
claims   of    prohibited   personnel   practices   under   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 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. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
review in one court of appeals, you may be precluded from seeking review in any
other court.
      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 U.S. 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 U.S. 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
                                                                                  9

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 your appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




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