                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KENNETH ROBERT GARDY,                           DOCKET NUMBER
                 Appellant,                          AT-0752-16-0156-I-1

                  v.

     DEPARTMENT OF                                   DATE: May 26, 2016
       TRANSPORTATION,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Kenneth Robert Gardy, West Columbia, South Carolina, pro se.

           Taneesha D. Marshall, Esquire, Atlanta, Georgia, 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 his termination appeal as untimely filed. 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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        In this October 29, 2015 appeal, the appellant sought to challenge his
     September 4, 2015 termination from his Aviation Safety Technician position
     during his probationary period. Initial Appeal File (IAF), Tab 1 at 1-6, 8. With
     his appeal, he included a letter requesting an extension of the time allowed to file
     it, citing trauma from the termination and his subsequent job search as the reason
     for his delay. Id. at 7. In addition to the acknowledgment order setting forth the
     appellant’s burden to establish jurisdiction over his appeal, IAF, Tab 2, the
     administrative judge issued an order on timeliness in which he informed the
     appellant that, generally, an appellant must file a Board appeal within 30 days of
     the effective date of the action being appealed, or within 30 days of receiving the
     agency’s decision, whichever is later, IAF, Tab 3 at 1-2.             See 5 C.F.R.
     § 1201.22(b)(1).
¶3        The administrative judge advised the appellant that, because he filed his
     appeal 25 days after its due date, the appeal appeared to be untimely filed and
     would be dismissed unless he established by preponderant evidence that it was
     timely filed or, if it was not, that good cause existed for his filing delay. IAF,
     Tab 3 at 2-3.   The administrative judge also explained that, to establish good
     cause on the basis of an illness that prevented timely filing, the appellant must:
                                                                                       3

     (1) identify the time period during which he suffered from the illness; (2) submit
     medical and other evidence establishing that he suffered from the illness during
     the relevant time period; and (3) explain how the illness prevented him from
     timely filing his appeal or requesting an extension of time to file. Id. at 3-4. He
     further stated that, if medical evidence was unavailable, the appellant must
     explain why. Id. The appellant did not respond. Without holding a hearing, the
     administrative judge dismissed the appeal as untimely filed. IAF, Tab 5, Initial
     Decision (ID).
¶4        In his petition for review, the appellant claims that he was unable to file his
     appeal within the prescribed time limit due to Post Traumatic Stress Disorder
     (PTSD) caused by his termination and the alleged hostile work environment he
     experienced in the agency’s West Columbia, South Carolina office. Petition for
     Review (PFR) File, Tab 1. He asserts that “[a]voidance to responding was [his]
     only approach and it was not working” so he “immediately” sought the help of a
     professional counselor who ultimately helped him to “respond, discuss and
     communicate the termination and the events associated with [his] employment in
     the office.” Id. at 1. He also challenges the merits of his termination. Id. at 1-4.
     The agency responds in opposition.
¶5        To establish good cause for the untimely filing of an appeal, a party must
     show that he exercised due diligence or ordinary prudence under the particular
     circumstances of the case. Alonzo v. Department of the Air Force, 4 M.S.P.R.
     180, 184 (1980).     In the absence of a response from the appellant to the
     administrative judge’s order on timeliness, he correctly dismissed the appeal
     based on the appellant’s failure to allege or prove that his October 29, 2015
     appeal was timely filed or that he had good cause for the untimely filing. E.g.,
     Caldwell v. Department of the Treasury, 85 M.S.P.R. 674, ¶ 5 (2000); Alonzo,
     4 M.S.P.R. at 184. In his initial decision, the administrative judge discussed the
     appellant’s request for an extension of the filing deadline. ID at 3; IAF, Tab 1
     at 7. He noted the appellant’s failure to provide any documentation suggesting
                                                                                       4

     that he was either “misinformed about the deadline, medically incapacitated, or
     otherwise unable to satisfy the filing deadline,” and commented that the agency’s
     termination letter “correctly stated the Board’s 30-day filing deadline.” ID at 3.
     Acknowledging the undoubtable trauma of receiving the termination decision, the
     administrative judge found nothing in the record to suggest that such trauma
     rendered the appellant unable to timely file his appeal. Id. On the contrary, the
     administrative judge found the appellant’s assertion that he had submitted
     numerous job applications in the time between his termination and the untimely
     filing of his appeal indicated “that he had both the physical and mental capacity
     to also timely file his Board appeal.” ID at 3-4. We agree.
¶6        As explained by the administrative judge, to establish that an untimely
     filing was the result of an illness, an appellant must: (1) identify the time period
     during which he suffered from the illness; (2) submit medical evidence showing
     that he suffered from the alleged illness during that time period; and
     (3) demonstrate how the illness prevented him from timely filing his appeal or a
     request for an extension of time. IAF, Tab 3 at 3-4; e.g., Lacy v. Department of
     the Navy, 78 M.S.P.R. 434, 437 (1998).        There is no general incapacitation
     requirement; rather, the appellant is required to explain only why his alleged
     illness impaired his ability to meet the Board’s filing deadline or seek an
     extension of time. Lacy, 78 M.S.P.R. at 437 n.*. However, a generalized claim
     of a medical problem without a specific explanation of how the problem
     prevented the appellant from meeting the filing deadline does not constitute good
     cause. E.g., Gross v. U.S. Postal Service, 103 M.S.P.R. 334, ¶ 11 (2006).
¶7        Regarding the appellant’s assertions of PTSD, he did not identify any
     symptoms, and he failed to provide any specific explanation as to how his alleged
     condition prevented him from timely filing his appeal or requesting an extension
     before the filing deadline.    See Jerusalem v. Department of the Air Force,
     107 M.S.P.R. 660, ¶ 6 (finding the appellant’s assertion that he was not
     sufficiently competent to pursue his appeal, with no medical evidence as to how
                                                                                  5

his medical condition impaired him from doing so, was insufficient to establish
good cause), aff’d, 280 F. App’x 973 (Fed. Cir. 2008); cf. Caldwell, 85 M.S.P.R.
674, ¶ 5 (finding that the appellant diligently requested an extension before the
filing deadline). Moreover, the appellant has provided no medical evidence that
would indicate that he suffered from PTSD during the time period between his
probationary termination and the filing deadline for his appeal.         Thus, the
appellant failed to show that his medical condition impaired his ability to file an
appeal between the effective date of his termination and the date he filed his
appeal. Therefore, we affirm the initial decision.

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

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 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.
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Additional     information     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.
      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
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.
