                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ELIZABETH R. ILAGAN,                            DOCKET NUMBER
                    Appellant,                       SF-0752-14-0792-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: January 11, 2016
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Elizabeth R. Ilagan, Henderson, Nevada, pro se.

           Matthew S. Voss, Esquire, North Las Vegas, Nevada, 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 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


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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. Except as expressly MODIFIED by this Final Order to incorporate
     the standards set out in the Board’s decision in Savage v. Department of the
     Army, 122 M.S.P.R. 612 (2015), we AFFIRM the initial decision.
¶2        The appellant held the position of Physical Therapist for the agency’s
     Southern Nevada Health Care System in Las Vegas, Nevada. Initial Appeal File
     (IAF), Tab 4 at 24. In August 2013, the agency reprimanded her for “Failure to
     Follow Instructions” and “Negligent Workmanship.” IAF, Tab 9 at 22-26. In
     November 2013, the agency suspended the appellant for 3 days for “Failure to
     Safeguard Protected Health Information.” IAF, Tab 8 at 26, 34-35.
¶3        In May 2014, the agency proposed removing the appellant for “Failure to
     Recognize Contraindications.”     IAF, Tab 5 at 94-96.      The proposal included
     five specifications, A-E. Id. The deciding official sustained four of them, B-E,
     and removed the appellant from service. IAF, Tab 4 at 28-30. The appellant filed
     the instant appeal. IAF, Tab 1.
¶4        The administrative judge affirmed the appellant’s removal from service,
     finding that the agency met its burden of proof and the appellant failed to prove
     any of the affirmative defenses she asserted. IAF, Tab 20, Initial Decision (ID).
     The appellant has filed a petition for review. Petition for Review (PFR) File,
     Tab 1. The agency has filed a response. PFR File, Tab 3.
                                                                                          3

¶5         In her petition, the appellant argues that the administrative judge committed
     a number of abuses of discretion by (1) insisting that she could only be
     represented by an attorney licensed in the state of Nevada, (2) coercing the
     appellant to cancel her request for a hearing due to her not having a
     Nevada-licensed attorney, (3) denying a request to reopen or extend the close of
     record, and (4) refusing to consider her untimely submissions. 2 PFR File, Tab 1
     at 2-4, 6-21. 3 We find no merit to these arguments.

     The appellant has failed to show any abuse of discretion concerning her lack of
     representation and the cancelling of her scheduled hearing.
¶6         The appellant alleges that the administrative judge erroneously prohibited
     her from designating her representative of choice and, as a result, coerced her into
     withdrawing her hearing request. See, e.g., PFR File, Tab 1 at 2. In a statement
     made under the penalty of perjury, the agency’s representative disputes the
     allegations. PFR File, Tab 3 at 25-28; see Office of Hearings and Appeals v.
     Whittlesey, 59 M.S.P.R. 684, 692 (1993) (explaining that a sworn statement has
     greater weight than one that is not), aff’d, 39 F.3d 1197 (Fed. Cir. 1994) (Table).
     We find no merit to the appellant’s claims.
¶7         The Board’s regulations permit a party to choose any representative as long
     as that person is willing and available to serve. 5 C.F.R. § 1201.31(b). Absent a
     conflict of interest or position, the Board has held that the choice of
     representative is personal, and parties may choose to be represented by a
     nonattorney     if   they    wish.        See    Walton     v.   Tennessee      Valley
     Authority, 48 M.S.P.R. 462, 469 (1991); 5 C.F.R. § 1201.31(a)-(b). In addition,

     2
       On review, the appellant has presented no substantive challenge to the administrative
     judge’s findings that the agency met its burden concerning proof of the charge, nexus,
     and reasonableness of the penalty. We see no reason to revisit these well-reasoned
     findings. See ID at 5-16.
     3
        With her arguments, the appellant’s petition contains a number of attachments,
     including copies of Board regulations, PFR File, Tab 1 at 24-30, and copies of exhibits
     from the initial appeal file, compare id. at 32-803, with IAF, Tabs 17-19. None of the
     attachments appear to be new evidence.
                                                                                       4

      an appellant generally is entitled to a hearing in a timely filed removal appeal
      within the Board’s jurisdiction if she wants one. 5 C.F.R. § 1201.24(a)(3), (d),
      (e).
¶8           In this case, although the appellant’s initial appeal included the contact
      information of a private attorney, she checked a box indicating that she did not
      yet wish to designate any individual or organization to represent her.        IAF,
      Tab 1 at 1-2. Subsequently, the administrative judge issued an acknowledgment
      order, informing the appellant how she could designate a representative. IAF,
      Tab 2 at 2.    That order, dated September 11, 2014, repeatedly referred to a
      “representative,” without any indication that the representative had to be an
      attorney licensed in Nevada. Id.
¶9           By the time of a scheduled prehearing conference on December 17, 2014,
      the appellant had not yet submitted a designation of representative form or
      anything else to suggest that she had sought or obtained a representative. IAF,
      Tab 13, Prehearing Compact Disc (PCD).           At the end of the prehearing
      conference, the administrative judge went on the record to note that the appellant
      was pro se and that she had withdrawn her hearing request. PCD. The appellant
      affirmed the same, without any objection or other indication that the
      administrative judge induced her choice to proceed pro se and without a hearing.
      PCD.
¶10          The administrative judge later issued an order summarizing the prehearing
      conference call, including a notation that the appellant withdrew her hearing
      request. IAF, Tab 14 at 1. That order provided a period during which the parties
      could object to the administrative judge’s summary, but neither did. See id. at 22.
      The appellant proceeded to file arguments and evidence as to the merits of her
      appeal, without any indication that she wished to designate a representative or
      have a hearing. IAF, Tabs 16, 18-19. Therefore, we find the appellant’s waiver
      of her hearing and representation rights to be clear and unequivocal. See Axsom
      v. Department of Veterans Affairs, 110 M.S.P.R. 605, ¶ 10 (2009) (finding that an
                                                                                        5

      appellant waived his right to a hearing when he clearly and repeatedly asserted
      that he did not want one).       Under these circumstances, we find that the
      administrative judge did not abuse his discretion, prevent the appellant from
      designating a representative, or induce her to waive her hearing rights. See, e.g.,
      Doe v. Department of Justice, 118 M.S.P.R. 434, ¶ 38 (2012) (determining that an
      administrative judge has wide discretion to control the proceedings); 5 C.F.R.
      § 1201.41(b) (enumerating the powers of an administrative judge, including the
      authority to hold prehearing conferences to simplify the issues).

      The administrative judge did not abuse his discretion by denying the appellant’s
      request to extend the close of record and refusing to consider untimely filings.
¶11        The appellant appears to argue that the administrative judge erred by
      denying her request to extend the close of record and refusing to consider her
      untimely filings. See, e.g., PFR File, Tab 1 at 3-4. We disagree.
¶12        Where the appellant waives a hearing, setting the deadline for closing the
      record is within the sound discretion of the administrative judge, but the
      procedures used must comport with the basic requirements of fairness and notice,
      including an opportunity for response to the opposing party’s submissions; thus,
      where one party is precluded from responding to material evidence that is
      included in the opposing party’s submission, and upon which the administrative
      judge relies in the initial decision, such error may warrant reversal of the initial
      decision.   Gavette v. Department of the Treasury, 44 M.S.P.R. 166, 174
      (1990); 5 C.F.R. § 1201.58(b). The Board’s regulations provide that additional
      evidence or argument generally will not be accepted after the record closes unless
      “the party submitting it shows that the evidence or argument was not readily
      available before the record closed” or “it is in rebuttal to new evidence or
      argument submitted by the other party just before the record closed.” 5 C.F.R.
      § 1201.58(c)(1)-(2).
¶13        Aside from her initial appeal, the appellant did not submit any argument or
      evidence until after the designated close of record. The parties agreed to close
                                                                                                        6

      the record on February 11, 2015.                   IAF, Tab 14 at 1; PCD.        The appellant
      submitted her argument and evidence a day later, on February 12, 2015, without
      addressing her untimeliness.                IAF, Tab 16.      Within that already untimely
      submission, the appellant requested that the administrative judge extend the close
      of record, suggesting that the agency had some unspecified but nonetheless
      pertinent documents in its possession. Id. at 6. The administrative judge denied
      the request, IAF, Tab 17, but the appellant proceeded to submit two additional
      pleadings on February 17 and 26, 2015, IAF, Tab 18-19.
¶14            The administrative judge accepted the appellant’s February 12, 2015
      submission for consideration, finding that it was, arguably, in response to the
      agency’s submission from the day before.                           ID at 3-4; see 5 C.F.R.
      § 1201.58(c)(2). However, the administrative judge concluded that the appellant
      failed     to   present       any   basis    for     considering    the   untimely     filings   of
      February 17 and 26, 2015, ID at 4, and we agree.
¶15            Concerning the February 17, 2015 submission, the appellant argues that it
      was key to the administrative judge understanding her defense. PFR File, Tab 1
      at 3; see IAF, Tab 18.                However, relevance alone does not excuse the
      untimeliness       of     a     filing.        See     Sanders      v.    Department      of     the
      Army, 64 M.S.P.R. 136, 140 (1994) (finding that an administrative judge properly
      rejected proffered evidence where it was untimely filed without a showing of
      good cause), aff’d, 50 F.3d 22 (Fed. Cir. 1995) (Table).                    The appellant also
      suggests that she had some technical difficulties submitting the February 17, 2015
      pleading through e-Appeal due to its size. PFR File, Tab 1 at 7. However, she
      failed to specify when those problems arose or provide any corroborating
      evidence. See id.; IAF, Tab 18 at 1. Moreover, when an appellant attempts to
      upload a pleading that exceeds e-Appeal’s size limits, users are instructed either
      to reduce the file size of their pleading and try again or split their oversized
      pleading into multiple pleadings. The appellant failed to explain why she failed
      to do so. She also failed to explain why she waited 6 days after the close of
                                                                                       7

      record to hand deliver the materials. IAF, Tab 2 at 3-4; cf. Boykin v. U.S. Postal
      Service, 104 M.S.P.R. 460, ¶¶ 6-7 (2007) (finding good cause for untimeliness of
      1 day where the appellant alleged difficulties with e-Appeal and the Board’s
      records confirmed a higher incidence of problems with the system during the
      relevant period).
¶16         Concerning the February 26, 2015 submission, the appellant alleges that the
      administrative judge should have considered her pleading because it was her
      rebuttal to the agency’s final submission.     PFR File, Tab 1 at 3-4; see IAF,
      Tab 19; see also 5 C.F.R. § 1201.58(c)(2).        However, the agency and the
      appellant were both registered e-filers, so the appellant is presumed to have
      received the agency’s brief on the day it was submitted, February 11, 2015. IAF,
      Tab 1 at 20, Tab 3 at 2; see 5 C.F.R. § 1201.14(m)(2) (documents served
      electronically on registered e-filers are deemed received on the date of electronic
      submission).   Even if her final pleading was a rebuttal to that brief, as the
      appellant alleges, it still was untimely. Compare IAF, Tab 14 at 1 (permitting the
      parties to submit a rebuttal to arguments and evidence filed just before the
      February 11, 2015 close of record, to be received by February 18, 2015), with
      IAF, Tab 19 (appellant’s final pleading, electronically filed on February 26,
      2015).
¶17         In addition to the aforementioned arguments, the appellant appears to
      suggest that her untimeliness may have been caused, in part, by her having never
      been advised of her discovery rights. PFR File, Tab 1 at 7-8. Yet, contrary to
      that assertion, the administrative judge’s acknowledgment order provided the
      parties with information about how to engage in the discovery process.        IAF,
      Tab 2 at 2-3; see Sanders, 64 M.S.P.R. at 140 (finding that an appellant failed to
      establish good cause for filing untimely evidence where he did not comply with
      the order concerning discovery and failed to initiate discovery in a timely
      manner). Regarding her untimeliness, the appellant also emphasizes that she was
      proceeding pro se. PFR File, Tab 1 at 7, 9-10. However, inexperience with legal
                                                                                              8

      matters does not warrant waiver of unambiguous filing deadlines.               See, e.g.,
      Olson v. U.S. Postal Service, 66 M.S.P.R. 383, 387-88 (1995).
¶18         It is well established that parties ignore Board orders at their own peril.
      Mendoza v. Merit Systems Protection Board, 966 F.2d 650, 653 (Fed. Cir. 1992).
      Litigants are obligated to respect the Board’s established deadlines.                  Id.
      Although the appellant would have us excuse her untimely arguments and
      evidence, she has failed to present any persuasive basis for doing so.
      Accordingly, we agree with the administrative judge’s decision not to consider
      the untimely filings of February 17 and 26, 2015. See ID at 3-4. 4

      We modify the initial decision to incorporate the proper standards for the
      appellant’s affirmative defenses of national origin discrimination, age
      discrimination, and equal employment opportunity (EEO) reprisal.
¶19         After the administrative judge issued the initial decision, we issued a
      decision clarifying the evidentiary standards and burdens of proof under which
      the Board analyzes the national origin discrimination, age discrimination, and
      EEO reprisal affirmative defenses. See Savage, 122 M.S.P.R. 612, ¶¶ 42-43, 51.
      Pursuant to Savage, an appellant may establish these affirmative defenses using
      direct evidence or any of three types of circumstantial evidence: a convincing
      mosaic of evidence from which a discriminatory intent may be inferred, evidence
      of disparate treatment of similarly situated comparators, or evidence that the
      agency’s stated reason is not worthy of credence but rather a pretext for
      discrimination. Id., ¶¶ 42-43. If an appellant shows by preponderant evidence
      that the prohibited consideration was a motivating factor in the contested
      personnel action, in violation of 42 U.S.C. § 2000e-16, the Board will inquire
      whether the agency has shown by preponderant evidence that it still would have
      taken the contested action in the absence of the discriminatory or retaliatory

      4
           The     administrative       judge’s    decision    refers     to    filings    dated
      February 17, 23, and 26, 2015. ID at 4. However, the February 23 filing was made part
      of the February 17 filing, as it merely confirmed delivery of that pleading to the agency.
      IAF, Tab 18 at 698.
                                                                                      9

      motive. Id., ¶¶ 49-51. If the agency meets that burden, its violation will not
      require reversal of the action. Id., ¶ 51.
¶20         Because the factual record is fully developed on the appellant’s affirmative
      defenses and we do not base our finding on witness demeanor, we need not
      remand this claim for further adjudication. See Panter v. Department of the Air
      Force, 22 M.S.P.R. 281, 282 (1984) (holding that an adjudicatory error that is not
      prejudicial to a party’s substantive rights provides no basis for reversal of an
      initial decision).   We find that applying the analytical framework in Savage
      would not change the result in this case. Thus, based on the existing record, and
      for the reasons contained in the initial decision, we affirm the administrative
      judge’s finding that the appellant did not meet her burden of proving her
      affirmative defenses of national origin discrimination, age discrimination, or EEO
      reprisal. See, e.g., ID at 16-25.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
            The initial decision, as supplemental 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.

      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 U.S. 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:
                                                                                 10

                           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
                                                                       11

prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.




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