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UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD


ATLANTA REGIONAL OFFICE

BRENDA D. HICKS,
Appellant,

DOCKET NUMBER
AT-0752-16-0105-B-1

v.
DEPARTMENT OF AGRICULTURE,
Agency.

DATE: October 20, 2016

Ronnie Hubbard, Jackson, Mississippi, for the appellant.


Hyacinth Michelle Clarke, Esquire, Washington, D.C., for the agency.
Joshua N. Rose, Esquire, Washington, D.C., for the agency.
BEFORE
Jeffrey S. Morris
Administrative Judge
INITIAL DECISION
On September 28, 2016, the Atlanta Regional Office docketed this appeal
pursuant to the Boards remand order dated September 22, 2016. Remand Appeal
File (RAF), Tabs 1, 2.

The appeal concerns the appellants challenge of the

agency's action which removed her from the position of Food Inspector, GS1862-07, in Canton, Mississippi, effective October 29, 2015. Initial Appeal File
(IAF), Tab 1. The Board has jurisdiction over the appeal. See 5 U.S.C. 75117513. The hearing requested by the appellant was held on March 16, 2016. On
remand, the parties waived any additional hearing and/or submission of additional
evidence or argument.

RAF, Tab 5.

Based on the following analysis and

findings, the agency's action is AFFIRMED.

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ANALYSIS AND FINDINGS
The agency removed the appellant from her position based on the charge of
conduct prejudicial to the best interests of the service. The agency has the
burden to prove the merits of its case by a preponderance of the evidence. See 5
C.F.R. 1201.56(b). A preponderance of the evidence is defined by regulation as
the degree of relevant evidence that a reasonable person, considering the record
as a whole, would accept as sufficient to find that a contested fact is more likely
to be true than untrue. See 5 C.F.R. 1201.4(q). In addition, the agency must
show that a nexus (i.e., service connection) existed between the charged conduct
and the efficiency of the service, and that the penalty it selected was within the
bounds of reasonableness and promotes the efficiency of the service. See Douglas
v. Veterans Administration, 5 M.S.P.R. 280, 302, 306 (1981).
The agency issued a notice of proposed removal (NOPR) dated August 10,
2015, which the appellant received on August 12, 2015. The NOPR included two
charges: (1) failure to complete training as a condition of employment; and (2)
conduct prejudicial to the best interests of the service. IAF, Tab 7, p. 24. The
appellant submitted an oral reply to the NOPR on September 8, 2015. Id., pp. 2023. The agency issued its final decision letter, which sustained only the second
charge but also sustained the proposed removal of the appellant, on October 27,
2015. The appellant received, but refused to sign, the final decision letter on
October 29, 2015. Id., pp. 15. The appellant then timely filed the original appeal.
Misconduct charges
The NOPR identified the second charge as conduct prejudicial to the best
interests of the service and included the following specifications:
Specification 1: On April 30, 2014, you called Supervisory Public
Health Veterinarian, (SPHV), Dr. Roland Ledbetter to your vehicle
and pulled what appeared to be a gun out from under the seat of the
car and showed it to him.

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Specification 2: On May 5, 2014, you pointed your finger at SPHV
Ledbetter and made a noise as if you had fired a gun at him.
IAF, Tab 7, p. 25.
The agency proved the charge.
At the hearing, the agencys deciding official, Krista Grimmett,
consistently and repeatedly referred to the charged misconduct as constituting
threats.

For example, she stated that the agency is consistent in removing

employees who make threats with deadly weapons. HCD, testimony of Grimmett.
She said she considered facts in this case to include making a threat with a
firearm. Id. The deciding official further opined that the penalty of removal was
warranted because the actual threat level was so high. Id. She also explained
in some detail her belief that the appellant used a gun in a threatening manner.
Id.
Applicable legal standards for assessing a threat charge differ
significantly from those which pertain to a conduct prejudicial charge.

In

determining whether an actionable threat was made, the Board must use the
connotation that a reasonable person would give to the words. Metz v.
Department of the Treasury, 780 F.2d 1001, 1002 (Fed. Cir. 1986).

First,

however, it must determine the actual words used to convey the alleged threat.
Larry v. Department of Justice, 76 M.S.P.R. 348, 356 (1997).

It will then

consider the listener's reactions and apprehensions of harm, the speaker's intent,
any conditional nature of the statements, and any attendant circumstances. Metz,
780 F.2d at 1002. In considering these factors, the Board must give objective
evidence heavy weight, although credible subjective evidence should also be
considered. Id., at 1003. Finally, the Board has stated that, whether an employee
intends to carry out a threat is irrelevant to the question of whether she
intended to make a threat. See Greenough v. Department of the Army, 73
M.S.P.R. 648, 652 (1997) (citing Murphy v. Department of Health and Human
Services, 34 M.S.P.R. 534, 538 (1987)). By contrast, an agency need not prove a

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threat when the charge is improper conduct. Otero v. U.S. Postal Service, 73
M.S.P.R. 198, 202-03 (1997).
In the original initial decision, I found that the agency violated the
appellants due process rights by not informing her that her alleged threats
would be considered in rendering a final decision.

IAF, Tab 22. In its remand

order, the Board disagreed with my due process determination and vacated the
initial decision on that basis.

However, the Board concurred with my

determination that the deciding official considered the appellants alleged


misconduct as making a threat, i.e., a charge more serious than mere conduct
prejudicial to the best interests of the service. RAF, Tab 1 (Remand Order,
12). Accordingly, on remand I will apply the Metz standard in considering the
agencys charge as alleging threats made against Dr. Ledbetter.
Specification 1
There were no witnesses to the acts alleged in Specification 1 of the charge
other than the appellant and Dr. Ledbetter. Thus, my determination as to whether
the first specification should be sustained turns on which version of the events in
question I find more credible: that of the Dr. Ledbetter or that of the appellant.
Briefly, Dr. Ledbetters written statement and hearing testimony alleged that the
appellant called him over to her car after the night shift, then reached under the
car seat and slid out into view what appeared to be a pistol in a holster before
sliding it back under the seat. IAF, Tab 8, p. 9; HCD, testimony of Ledbetter.
The appellant, on the other hand, testified that she pulled a small bottle of
whiskey or vodka in a paper bag from under her car seat and gave it to Ledbetter.
HCD, testimony of appellant.
To resolve credibility issues, an administrative judge must identify the
factual questions in dispute, summarize the evidence on each disputed question,
state which version he believes, and explain in detail why he found the chosen
version more credible, considering such factors as: (1) the witness's opportunity
and capacity to observe the event or act in question; (2) the witness's character;

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(3) any prior inconsistent statement by the witness; (4) a witness's bias, or lack of
bias; (5) the contradiction of the witness's version of events by other evidence or
its consistency with other evidence; (6) the inherent improbability of the witness's
version of events; and (7) the witness's demeanor.

Hillen v. Department of the

Army, 35 M.S.P.R. 453, 458 (1987).


To begin consideration of the Hillen factors, I find that both the appellant
and Ledbetter had equal opportunity and capacity to observe the events or acts in
question. 1 Therefore, this factor favors neither party. Similarly, since I have no
basis for determining that either witnesss character was superior to the others, I
find the second Hillen factor favors neither party. The third Hillen factor, prior
inconsistent statements, favors the appellant in that Dr. Ledbetters written
statement indicates a lack of complete certainty that he had seen a gun. IAF, Tab
8, p. 9. During the hearing, Dr. Ledbetter said he was sure the appellant showed
him a gun. HCD, testimony of Ledbetter
As to the fourth Hillen factor, I perceive no particular bias in either Dr.
Ledbetter or the appellant; therefore, this factor favors neither party. The fifth
Hillen factor (contradiction of the witness's version of events by other evidence
or its consistency with other evidence) favors the agency in that the appellants
testimony that she harbored no ill feelings toward Dr. Ledbetter is contradicted
by her having been written up by him for AWOL mere hours beforehand.
Witness Debbie Jones, a coworker, testified that the appellant acted upset by
Dr. Ledbetters action that night in the hours preceding the parking lot incident.
HCD, testimony of Jones. Further, Dr . Ledbetter testified that when he saw the
gun, he told the appellant, If youre going to shoot me, shoot me between the
eyes, or words to that effect.
1

HCD, testimony of Ledbetter (20:50).

The

While the appellant appeared to suggest in examining Dr. Ledbetter that he was an
alcoholic and, therefore, may have had diminished capacity to accurately observe the
events in question, I find there is no evidence to support any claim that he was impaired
at the time of the occurrences described in Reason 2, Specification 1.

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appellant did not refute this statement during her hearing testimony.

This

testimony indicates to me that the appellant did show a gun to Dr. Ledbetter as
charged. Finally, on May 7, 2014 the appellant told witness Dr. Linda Riggs that
she carried a gun in her car and she expressed dismay to Dr. Riggs (exclaiming
Oh, my God!) when she realized she was in trouble over the April 30 th incident.
Id., p. 13; HCD, testimony of Riggs. Dr. Riggs testimony indicates to me that it
was a gun, rather than a bottle, that the appellant slid from beneath her car seat on
April 30, 2014.
Regarding the sixth Hillen factor, I find it inherently improbable that the
appellant would gift Dr. Ledbetter a bottle of whiskey or vodka within hours after
he wrote her up for AWOL, and after she had displayed agitation over that action
to Debbie Jones.

Thus, I find Dr. Ledbetters account that the appellant

expressed displeasure to him by showing him a gun more believable.

This

finding favors the agency. Finally, as to demeanor (the seventh Hillen factor), I
found Dr. Ledbetters testimonial comportment more somber and composed than
that of the appellant. However, given the appellants status as the accused party,
whose employment had been terminated, I cannot say that this difference was not
understandable, or that it favors one side over the other.
Summing up my consideration of the Hillen factors, I find Dr. Ledbetters
(i.e., the agencys) account of the events charged in specification 1 to be more
credible than that of the appellant. In other words, I find it is more likely than
not that the appellant did show a gun to Dr. Ledbetter on April 30, 2014, as
charged.

Next, I must determine whether this act constituted a threat under

applicable law.
As noted above, to determine whether an actionable threat was made here I
must apply the connotation that a reasonable person would give to the act in
question. Metz, 780 F.2d at 1002.

More specifically, having already found that

a gun was shown to Dr. Ledbetter, I must consider his reaction and apprehension
of harm, the appellants intent, and attendant circumstances. Id.

Here, Dr.

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Ledbetter did not report the incident for several days. However, he testified that
he was moved to report it by the incident on May 5, 2014 (discussed under
Specification 2 below) and reflection on the possible endangerment to agency
employees created by the appellants possession of a firearm at her workplace.
Id.

I find these stated reasons credible both in terms of explaining the tardy

reporting and in demonstrating an apprehension of harm. Regarding intent, I find


that the appellants showing Dr. Ledbetter a gun was meant to convey a message
to him following the AWOL write-up, which upset her. Even if couched in dark
humor, the message was that Ledbetter should exercise greater leniency in
dealing with her attendance issues.
Lastly, I find that attendant circumstances are critical as to whether the
appellants actions charged in Specification 1 constituted a threat.

Had the

appellant merely shown Dr. Ledbetter a gun at his request, or based on a mutual
enthusiasm for firearms, possibly no threat would have occurred.

Here, the

appellants display occurred at dawn, in a parking lot when she called Dr.
Ledbetter over to her car, hours after he wrote her up for AWOL (an event which
upset her). In this scenario, I find that the appellants action did indeed amount
to a threat.
Conclusion as to Specification 1
I find that the first specification of conduct prejudicial to the best interests
of the service, reinterpreted as making a threat per the Boards remand order, is
supported by preponderant evidence. That is, I find it is more likely than not that
on April 30, 2014 the appellant showed a gun to Dr. Ledbetter in the parking lot
of their workplace. I further find this conduct was constituted an actionable
threat. Accordingly, the first specification is SUSTAINED.
Specification 2
Unlike the parking lot event a few days earlier, the alleged May 5, 2014
trigger finger incident occurred in the presence of witnesses. Dr. Ledbetter, Dr.
Linda Riggs, Jerry Stout, and Debbie Jones all testified, with minor variations,

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that they saw appellant configure her hand into a pistol shape and fire it a few
times at Dr. Ledbetter as he sat in an office as she passed by. All but Jones heard
the appellant make some sort of shooting noise at the same time. HCD, testimony
of Ledbetter, Riggs, Stout, and Jones. For her part, the appellant testified (and
demonstrated) that she motioned toward Dr. Ledbetter with her two fists and
made noises in furtherance of a continuing joke between the two about her
popping his bow legs back into shape. Id., testimony of appellant.
Again, I apply the Hillen factors to resolve the credibility dispute between
the appellant and the four named witnesses to the alleged trigger finger
incident. Here, I find the only factors which significantly favor one side over the
other are those involving contradiction of the appellants version of events by
other evidence or its consistency with other evidence (the fifth factor) and the
inherent improbability of the appellants version of events (the sixth factor). In
my view, both factors favor the agency.
As to the fifth Hillen factor, I find that the appellants version of events
(popping bow legs) is convincingly contradicted by the above-described accounts
of the other four named witnesses, none of whom had a discernable reason to tilt
their stories against the appellant. Further, those witnesses description of the
appellants trigger finger behavior is consistent with the appellants having
shown a gun to Dr. Ledbetter a few days beforehand. I found under Specification
1 above that such a display did occur, and here I conclude that the conduct
charged under Specification 2 fits logically as an ominous reminder to Dr.
Ledbetter of the previous incident.
Regarding the sixth Hillen factor, I find that the appellants version of
events is inherently improbable. First, I think it highly unlikely that the appellant
would engage in her popping bow legs joke with Dr. Ledbetter only days after
having been written up by him (an event which upset her) and showing him a gun
as a result.

Second, the two-fisted leg-popping motion she testified to (and

demonstrated) at the hearing is in no way similar to the one-handed pistol-firing

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motion described by four credible witnesses. Thus, I find that the sixth Hillen
factor favors the agency.
In sum, my consideration of the Hillen factors leads me to conclude that
the four agency witnesses (i.e., the agencys) account of the events charged in
specification 2 to be more credible than that of the appellant. In other words, I
find it is more likely than not that the appellant did configure her hand in the
shape of a gun and fire it at Ledbetter on May 5, 2014, as charged. Once more,
I must determine whether this act constituted a threat under applicable law.
Again applying the Metz standard, I find that a reasonable person would
consider the appellants action at issue here as a threat. Dr. Ledbetter testified he
was not immediately concerned for himself by the trigger finger episode, but
subsequently reconsidered its significance as he recalled his responsibility for the
safety of his coworkers and the gravity of firearms-related events in the
workplace. In this light, he decided he must report the appellants conduct on
April 30 th and May 5 th as acts of workplace violence.

HCD, testimony of

Ledbetter; IAF, Tab 9, p. 9 (report). Debbie Jones, who observed the incident
from across the hallway in the break room, immediately perceived the appellants
trigger finger toward Dr. Ledbetter as a hostile action which violated the
agencys policy zero-tolerance policy regarding workplace violence.
testimony of Jones.

Id.,

Similarly, Jerry Stout testified that he said Looks like

workplace violence to me! immediately after witnessing the event, adding that
he was not joking when he made the statement.

Id., testimony of Stout.

Likewise, Dr. Riggs testified that that appellants behavior on May 5, 2014 was
inappropriate in light of the agencys policy against workplace violence.

Id.,

testimony of Riggs. As for intent, I find that the appellants pointing and firing a
trigger finger at Dr. Ledbetter was again meant to convey the message that he
should exercise greater leniency in dealing with her attendance issues.
Finally, I again find the attendant circumstances are critical to the instant
threat analysis. The appellant fired her trigger finger at Dr. Ledbetter just a

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few days after she had shown him a gun in the parking lot, an event which closely
followed his writing her up for AWOL. The two had not seen each other in the
intervening time period.

HCD, testimony of Ledbetter.

As such, the mock

shooting incident on May 5 th went far beyond harmless office teasing. Instead, I
find the action constituted an implied threat backed up by the victims knowledge
that the appellant had the means to carry it out.
Conclusion as to Specification 2
I find that the second specification of conduct prejudicial to the best
interests of the service, reinterpreted as making a threat per the Boards remand
order, is supported by preponderant evidence. That is, I find it is more likely
than not that on May 5, 2014 the appellant configured her hand in a pistol shape
and fired it at Ledbetter. I further find this conduct was constituted an
actionable threat. Accordingly, the second specification is SUSTAINED.
The agency has established nexus.
An agency may take an action against an employee under 5 U.S.C. Chapter
75 only for such cause as will promote the efficiency of the service. See, e.g.,
Hatfield v. Department of the Interior, 28 M.S.P.R. 673, 675 (1985). An adverse action
promotes the efficiency of the service, satisfying the nexus requirement, where
the grounds for the action relate to either the employee's ability to accomplish her
duties satisfactorily or to some other legitimate government interest. See Fontes v.
Department of Transportation, 51 M.S.P.R. 655, 665, n.7 (1991). The appellant's
proved misconduct amounted to threats of violence against a fellow agency
employee. I find that the agency has a legitimate interest in that subject matter.
Further, the incidents involved agency employees and occurred at the employees
workplace. Finally, the agency presented testimony that it lost confidence in the
appellants

ability

to

perform

her

duties.

HCD,

testimony

Grimmett. Therefore, I find that the agency proved the required nexus.

of

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The agency proved the penalty of removal is reasonable.
Normally, the Board will review an agency-imposed penalty only to
determine if the agency considered all the relevant factors and exercised
management discretion within tolerable limits of reasonableness. Douglas, 5
M.S.P.R. at 306. When all of the agency's charges are sustained the agency's
penalty determination is entitled to deference and should be reviewed only to
determine whether it is within the parameters of reasonableness. Payne v. U.S.
Postal Service, 72 M.S.P.R. 646, 650 (1996).

Here, the agency proved the only

charge at issue before the Board.


In the instant case, the agency's deciding official, Krista Grimmett,
testified credibly that she considered all the Douglas factors. HCD, testimony of
Grimmett. She testified that the nature and severity of the offense (i.e.,
threatening a fellow employee with an actual or implied firearm), was extremely
serious and warranted the appellants removal.

Id.

She said that the agency

consistently removed employees who engaged in such conduct, consistent with its
table of penalties.

Id.

Grimmett stated that agency managements trust and

confidence in the appellant was undermined by her conduct at issue here.

Id.

Further, she noted that, although the appellant had been disciplined previously for
misconduct, the misconduct at issue in this case standing alone was sufficient to
warrant removal. Id. Grimmett also testified that the appellant was on clear
notice of the agencys policy against workplace violence which, in pertinent part,
provides that:
The agency will not tolerate careless or indiscriminate incidents
involving firearms or references to firearms (examples: joking,
improper handling or storage, horseplay, or belligerent or hostile
exchanges involving firearms).
IAF, Tab 8, p. 60. The appellant testified that she was aware of, and understood,
this policy at the time of the incidents in question. HCD, testimony of appellant
(29:50).

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I agree with the deciding officials penalty analysis, particularly regarding
the nature and severity of the offense given the current prevalence of gun-related
workplace violence in our society. Accordingly, I conclude the agency's decision
to remove the appellant did not exceed the tolerable limits of reasonableness and
merited the removal penalty imposed by the agency.
Affirmative defenses
The appellant bears the burden of proving her asserted affirmative defenses
by a preponderance of the evidence.

5 C.F.R. 1201.56(b).

I found in the

original initial decision that the appellants due process rights were violated, but
that she failed to establish her asserted affirmative defense of race discrimination.
Further, I found that the appellants claim of harmful procedural error was moot
based on my finding a due process violation. IAF, Tab 22. In its remand order,
the Board vacated my due process determination, but stated that I might adopt my
original finding of no race discrimination on remand. I do so here. That leaves
the appellants harmful procedural error claim as requiring adjudication.
Harmful error is defined as Error by the agency in the application of its
procedures that is likely to have caused the agency to reach a conclusion different
from the one it would have reached in the absence or cure of the error. The
burden is upon the appellant to show that the error was harmful, i.e., that it
caused substantial harm or prejudice to his or her rights. 5 C.F.R. 1201.4(r).
Here, I find that the appellant has identified no error by the agency in the
application of its procedures, much less one which substantially prejudiced her
rights. Therefore, I find that the appellants harmful procedural error affirmative
defense fails.
Conclusion
In light of my determination that the agency met its burden of proving its
remaining charge, of establishing a nexus between the appellant's misconduct and
the efficiency of the service, and of establishing the reasonableness of the
penalty, and also given my finding that the appellant did not establish any

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asserted affirmative defense, I conclude that the agency is entitled to have its
action sustained by the Board. See 5 U.S.C. 7701(c)(1)(B).
DECISION
The agencys action is AFFIRMED.

FOR THE BOARD:

_______________/S/_______________
Jeffrey S. Morris
Administrative Judge
NOTICE TO APPELLANT

This initial decision will become final on November 24, 2016, unless a
petition for review is filed by that date. This is an important date because it is
usually the last day on which you can file a petition for review with the Board.
However, if you prove that you received this initial decision more than 5 days
after the date of issuance, you may file a petition for review within 30 days after
the date you actually receive the initial decision. If you are represented, the 30day period begins to run upon either your receipt of the initial decision or its
receipt by your representative, whichever comes first. You must establish the
date on which you or your representative received it. The date on which the
initial decision becomes final also controls when you can file a petition for
review with the Equal Employment Opportunity Commission (EEOC) or a federal
court. These instructions are important because if you wish to file a petition, you
must file it within the proper time period.
BOARD REVIEW
You may request Board review of this initial decision by filing a petition
for review.
If the other party has already filed a timely petition for review, you may
file a cross petition for review. Your petition or cross petition for review must

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state your objections to the initial decision, supported by references to applicable
laws, regulations, and the record. You must file it with:
The Clerk of the Board
Merit Systems Protection Board
1615 M Street, NW.
Washington, DC 20419
A petition or cross petition for review may be filed by mail, facsimile (fax),
personal or commercial delivery, or electronic filing. A petition submitted by
electronic filing must comply with the requirements of 5 C.F.R. 1201.14, and
may

only

be

accomplished

at

the

Board's

e-Appeal

website

(https://e-appeal.mspb.gov).
Criteria for Granting a Petition or Cross Petition for Review
The criteria for review are set out at 5 C.F.R. 1201.115, as follows:
The Board normally will consider only issues raised in a timely filed
petition or cross petition for review. Situations in which the Board may grant a
petition or cross petition for review include, but are not limited to, a showing
that:
(a) The initial decision contains erroneous findings of material fact; (1)
Any alleged factual error must be material, meaning of sufficient weight to
warrant an outcome different from that of the initial decision. (2) A petitioner
who alleges that the judge made erroneous findings of material fact must explain
why the challenged factual determination is incorrect and identify specific
evidence in the record that demonstrates the error. In reviewing a claim of an
erroneous finding of fact, the Board will give deference to an administrative
judge's credibility determinations when they are based, explicitly or implicitly, on
the observation of the demeanor of witnesses testifying at a hearing.
(b) 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
petitioner must explain how the error affected the outcome of the case;

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(c) The judges 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;
(d) New and material evidence or legal argument is available that, despite
the petitioners due diligence, was not available when the record closed. To
constitute new evidence, the information contained in the documents, not just the
documents themselves, must have been unavailable despite due diligence when
the record closed;
(e) Notwithstanding the above provisions in this section, the Board reserves
the authority to consider any issue in an appeal before it.
As stated in 5 C.F.R. 1201.114(h), a petition for review, a cross petition
for review, or a response to a petition for review, whether computer generated,
typed, or handwritten, is limited to 30 pages or 7500 words, whichever is less. A
reply to a response to a petition for review is limited to 15 pages or 3750 words,
whichever is less. Computer generated and typed pleadings must use no less than
12 point typeface and 1-inch margins and must be double spaced and only use one
side of a page. The length limitation is exclusive of any table of contents, table of
authorities, attachments, and certificate of service. A request for leave to file a
pleading that exceeds the limitations prescribed in this paragraph must be
received by the Clerk of the Board at least 3 days before the filing deadline. Such
requests must give the reasons for a waiver as well as the desired length of the
pleading and are granted only in exceptional circumstances. The page and word
limits set forth above are maximum limits. Parties are not expected or required to
submit pleadings of the maximum length. Typically, a well-written petition for
review is between 5 and 10 pages long.
If you file a petition or cross petition for review, the Board will obtain the
record in your case from the administrative judge and you should not submit
anything to the Board that is already part of the record. A petition for review
must be filed with the Clerk of the Board no later than the date this initial

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decision becomes final, or if this initial decision is received by you or your
representative more than 5 days after the date of issuance, 30 days after the date
you or your representative actually received the initial decision, whichever was
first. If you claim that you and your representative both received this decision
more than 5 days after its issuance, you have the burden to prove to the Board the
earlier date of receipt. You must also show that any delay in receiving the initial
decision was not due to the deliberate evasion of receipt. You may meet your
burden by filing evidence and argument, sworn or under penalty of perjury (see 5
C.F.R. Part 1201, Appendix 4) to support your claim. The date of filing by mail
is determined by the postmark date. The date of filing by fax or by electronic
filing is the date of submission. The date of filing by personal delivery is the
date on which the Board receives the document. The date of filing by commercial
delivery is the date the document was delivered to the commercial delivery
service. Your petition may be rejected and returned to you if you fail to provide
a statement of how you served your petition on the other party. See 5 C.F.R.
1201.4(j). If the petition is filed electronically, the online process itself will
serve the petition on other e-filers. See 5 C.F.R. 1201.14(j)(1).
A cross petition for review must be filed within 25 days after the date of
service of the petition for review.
NOTICE TO AGENCY/INTERVENOR
The agency or intervenor may file a petition for review of this initial
decision in accordance with the Board's regulations.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this decision only after it
becomes final, as set forth above.

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Discrimination Claims: Administrative Review
You may request review of this 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
You, or your representative if you are represented, should send your
request to EEOC no later than 30 calendar days after the date this decision
becomes final. 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, or your representative if you are
represented, must file your civil action with the district court no later than 30
calendar days after the date this decision becomes final. 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

18
requirement of prepayment of fees, costs, or other security.

See 42 U.S.C.

2000e5(f) and 29 U.S.C. 794a.


If you are interested in securing pro bono representation for your court
appeal, that is, representation at no cost to you, the Federal Circuit Bar
Association may be able to assist you in finding an attorney. To find out more,
please click on this link or paste it into the address bar on your browser:
https://fedcirbar.org/Pro-Bono-Scholarships/Government-Employees-ProBono/Overview-FAQ
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.

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