U.S. Merit Systems Protection Board
Case Report for June 6, 2014

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BOARD DECISIONS


Appellant:  Marytherese Miller 
Agency:  Department of the Army
Decision Number:  2014 MSPB 38
Docket Number:  NY-0752-12-0099-I-1 
Issuance Date:  May 30, 2014
Appeal Type:  Adverse Action
Action Type:  Physical Inability to Perform


Interim Relief
Physical Inability to Perform Duties of Position
Disability Discrimination
Collateral Estoppel
Standard for Removal

The appellant was employed as a GS-7 Legal Technician and was required, among other duties, to provide administrative and legal support for administrative hearings, including the recording and transcribing of those hearings. The location where the hearing was held required the appellant to carry recording equipment weighing 20 to 30 pounds up four flights of stairs to the hearing site. Following a knee injury, the agency granted the appellant's request for reasonable accommodation by only scheduling hearings in a room adjacent to her office because the appellant asserted that she could no longer carry the recording equipment due to her knee injury.  The accommodation continued for a number of years until the agency notified the appellant that it was no longer going to hold hearings in the room adjacent to her office due to a change in mission requirement. The agency offered the appellant several modifications to her accommodation, including various accommodations that would not require her to carry the recording equipment to the hearing site.  The agency also offered the appellant an alternative job, with a lower grade but same pay, as an accommodation. When the appellant rejected all of the suggested accommodations, the agency ordered her to undergo a fitness for duty examination which revealed that she was disqualified from her Legal Technician position based on her stated medical limitations. The agency then removed the appellant based on the charge of inability to perform her government duties due to a medical condition and her subsequent declination of the alternative job offer that would accommodate her medical condition.   The AJ reversed the sustained charge and removal action and concluded that the appellant proved her claim of disability discrimination.   

Holding: The Board reversed the AJ's initial decision and sustained the appellant's removal.

1.  The Board denied the appellant's motion to dismiss the agency's petition for review for failure to comply with the interim relief order because the agency returned the appellant to her position; the appellant's other assertions were too vague to consitute a violation of the interim relief order.  5 U.S.C. 7701(b)(2)(A) and Guillebeau v. Department of the Navy, 362 F.3d 1329, 1332-34 (Fed. Cir. 2004), Stack v. U.S. Postal Service, 101 M.S.P.R. 487 (2006).  

2.   The Board held, under the authority of Fox v. Department of the Army, 120 M.S.P.R 529 (2014), that the agency proved the charge that the appellant was physically unable to perform her duties. As part of its assessment in whether the agency met its burden, the Board considered whether a reasonable accommodation existed that would allow the employee to perform the core duties of her position. The Board found that because the appellant rejected every reasonable accommodation offered to her, she was unable to perform the core duties of her position.  

3.    The Board reversed the AJ's holding that the agency discriminated against the appellant based on her disability.  The appellant was a qualified individual with a disability under the definition of 29 C.F.R. 1630.2, but the agency did not fail to provide a reasonable accommodation to the appellant. Citing to Simpson v. U.S. Postal Service, 113 M.S.P.R. 346 (2010), along with guidance from the Equal Employment Opportunity Commission from the
Appendix to 29 C.F.R. Part 1630, 1630.9, the Board stated that an appropriate reasonable accommodation comes from a good faith interactive process between the two parties. Based on this, the appellant's repeated refusal of the agency's suggested reasonable accommodations demonstrated a lack of good faith participation in the interactive process by the appellant. Accordingly, the appellant was unable to prove that the agency failed to reasonably accommodate her disability.

4.    The AJ erred in not applying the doctrine of collateral estoppel to this matter.  Prior to the appellant's hearing, the Southern District of New York had dismissed the appellant's civil case on summary judgment, holding that the appellant's refusal of the agency's suggested reasonable accommodations precluded her from raising a triable issue of fact as to whether the agency failed to reasonably accommodate her. The appellant's civil case evolved from the identical set of facts, and argued the same legal claim, failure to reasonably accommodate the appellant's disability.  Because the Southern District of New York had already ruled against the appellant on this issue, the AJ erred in not dismissing the appellant's case based on collateral estoppel.  

5.    The Agency's penalty of removal was within the bounds of reasonableness.  Relying on Marshall-Carter v. Dep't of Veterans Affairs, 94 M.S.P.R. 518 (2003), aff'd, 122. F. App'x 513 (Fed. Cir. 2005), the Board found that the appellant's refusal of multiple reasonable accommodations, including a lower-graded position which retained her pay, combined with the evidence showed that she was no longer able to perform her duties, established that removal was a reasonable penalty. 


Appellant:  Darla Gaetos 
Agency:  Department of Veterans Affairs
Decision Number:  2014 MSPB 39
Docket Number:  SF-0752-12-0788-I-1
Issuance Date:  June 2, 2014
Appeal Type:  Adverse Action
Action Type:  Removal


Timeliness for Filing Petition for Review
Requirement for Showing of Good Cause for Untimeliness

The appellant appealed her removal from the position of Medical Support Assistant.  The AJ issued an initial decision affirming the removal. Approximately three and a half hours after the deadline to file a Petition for Review, the appellant electronically filed her PFR.  In her PFR, the appellant requested that the "few hours of untimeliness be waived by the Board[,]" but did not provide further explanation for the untimeliness. The Clerk of the Board issued a show cause order that provided the appellant an opportunity to show that her filing was timely or explain the delay, but neither the appellant nor her attorney submitted a response.
 

Holding: The Board dismissed the PFR for untimeliness
.

1.    The party who submits an untimely petition for review has the burden of establishing good cause for the untimely filing by showing that he exercised due diligence or ordinary prudence under the particular circumstances of the case. To determine whether a party has shown good cause, the Board will consider the length of the delay, the reasonableness of her excuse and the party's showing of due diligence, whether she is proceeding pro se, and whether she has presented evidence of the existence of circumstances beyond his control that affected the ability to  comply with the time limits, or of unavoidable casualty or misfortune which similarly shows a causal relationship to his inability to timely file her petition.  

2.    The Board relied on Noble v. U.S. Postal Service, 73 M.S.P.R. 59, 62-63 (1997), Dade v. Office of Personnel Management, 45 M.S.P.R. 12, 14-15, aff'd, 923 F.2d 870 (Fed. Cir. 1990), and Dotson v. U.S. Postal Service, 41 M.S.P.R. 412, 414 (1989), aff'd, 895 F.2d 1420 (Fed. Cir. 1990), to hold that the appellant failed to establish good cause for her untimeliness because she did not submit any reason for the untimeliness. The "minimal filing delay" did not outweigh her failure to show she acted with due diligence in filing the PFR.

Appellant:  Marilee Brown 
Agency:  Department of Interior
Decision Number:  2014 MSPB 40
Docket Number:  SF-0752-12-0675-I-1 
Issuance Date:  June 4, 2014
Appeal Type:  Adverse Action
Action Type:  Physical Inability to Perform


Physical Inability to Perform Duties of Position
Weight Afforded Conflicting Medical Evidence
Consideration of Post Removal Medical Evidence
Mitigation in Removal for Physical Inability to Perform Duties of Position
Good Faith Obligation During the Interactive Reasonable Accommodation Process
Consideration for Funded Vacant Position as an Accommodation
Presentation of "Nearly Identical" Comparator Evidence in Disparate Treatment

The appellant was removed from her position as a GS-12 Criminal Investigator (Special
Agent) based on a charge of physical inability to perform the essential functions of her position due to back injuries.  The agency's reviewing physician concluded in a fitness-for-for-duty report that the appellant's back injuries restricted her from performing a number of physical functions required to meet the physical standards for the position.  An agency-convened Medical Review Board concluded that the appellant was unable to perform the essential job functions of her position without endangering the health and safety of others. The administrative judge (AJ) sustained the agency's charge, mitigated the penalty to a demotion, and concluded that the appellant's affirmative defenses of failure to accommodate, discrimination based on disability and retaliation, and harmful procedural error were unsupported.

Holding:   The Board affirmed the AJ's findings on the sustained misconduct and failure to establish affirmative defenses but concluded that the AJ erred in mitigating the penalty.

1.    The Board relied on its opinion in Slater v. Department of Homeland Security, 108 M.S.P.R. 419 (2008), to conclude that an employee who occupies a position with medical standards or physical restrictions, and is removed for physical inability to perform the duties of the position, the agency must establish:  (1) that the disabling condition itself is disqualifying; (2) that its recurrence cannot be ruled out; and (3) that the duties of the position are such that a recurrence would pose a reasonable probability of substantial harm.  Here, the Board affirmed the AJ's findings that the position of Special Agent had arduous physical demands and the weight of medical evidence established that the appellant could not perform the full functions of her job safely and effectively.

2.    In assessing the probative weight of medical opinions, the Board noted that it considers whether the opinion was based on a medical examination and whether the opinion provided a reasoned explanation for its findings as distinct from mere conclusory assertions, the qualifications of the expert rendering the opinion, and the extent and duration of the expert's familiarity with the treatment of the appellant. Here, the Board concluded that the medical evidence submitted by the appellant was not persuasive, but that the medical report submitted by the agency's physician was more persuasive because it was supported by the weight of the record evidence.  

3.    The Board will consider post removal medical evidence in instances where an appellant is removed for physical inability to perform if the medical evidence clearly and unambiguously establishes that she has recovered during the pendency of the Board appeal and that she is able to establish that she is able to perform the essential functions of the position.  Wren v. Department of the Army, 121 M.S.P.R. 28 (2014).  

4.    Although the traditional mitigation analysis does not apply in nondisciplinary actions such as a removal for physical inability to preform, Chandler v. Department of Treasury, 120 M.S.P.R. 163 (2013), the correct standard to be applied is whether the penalty of removal exceeded the tolerable limits of reasonableness based solely on the medical evidence. Marshall-Carter v. Department of Veterans Affairs, 94 M.S.P.R. 518 (2003). The Board will generally examine whether the employee can or cannot perform the essential functions of her position, and whether the agency has any vacant funded positions to which it can assign appellant within her restrictions.

5.    One qualifying factor in the mitigation analysis involving a nondisciplinary action is that when the appellant fails to consider reassignment as an alternative to removal or where the appellant refused to cooperate with the agency's attempts to determine the extent of her physical limitations.  The Board concluded here that since the appellant failed to operate in good faith during the interactive reasonable accommodation process by refusing to consider certain reassignments, the penalty of removal fell within the tolerable limits of reasonableness.  Thus, the Board reversed the AJ's mitigation finding.
  
6.    The Board agreed with the AJ that the appellant failed to establish that the agency did not meet its reasonable accommodation obligations because she did not present evidence that the agency did not consider her for a funded vacant position.  

7.    The Board affirmed the AJ's findings on disparate treatment and retaliation because the appellant failed to present "nearly identical" comparator evidence that would show that another similarly situated employee was provided with an accommodation, see Fox v. Department of the Army, 120 M.S.P.R. 529 (2014), and there was no evidence presented that the deciding official had a motive to retaliate against her based on her EEO complaint. 


Appellant:  Jessica Shannon 
Agency:  Department of Veterans Affairs
Decision Number:  2014 MSPB 41

Docket Number:  SF-0752-13-0018-I-1 
Issuance Date:  June 4, 2014
Appeal Type:  Adverse Action
Action Type:  Removal


Hearsay Evidence
Whistleblower Reprisal Claim
Analysis of Protected Disclosure
Clear and Convincing Evidence that Agency Would Have Taken Same Action
Analysis of Whether the Disclosure Protected Under 5 U.S.C. 2302(b)(8)

The appellant was removed from her position as a Medical Administrative Assistant based on two charges: (1) Inappropriate relationship with a veteran; and (2) failure to follow policy.  The charges were based on agency allegations that the appellant engaged in a personal relationship with a veteran who resided at the facility where she worked.  The charge was supported by evidence from Facebook messages between the appellant and the veteran and a personal encounter with the veteran on agency premises.  The AJ merged the two charges based on her finding that proof of the first charge of an inappropriate relationship with a veteran, which the agency alleged resulted in a violation of written agency policy, necessarily proved the second charge that the appellant failed to follow the policy. The AJ found the charge supported by preponderant evidence that included adverse credibility determinations and concluded that the appellant did not prove the affirmative defenses of harmful procedural error and whistleblower retaliation.  


Holding:  The Board affirmed the initial decision as it pertained to proof of the charges, found that the appellant failed to prove her affirmative defense of harmful procedural error, but vacated that portion of the initial decision finding that the appellant failed to prove her whistelblower retaliation claim and remanded the case back to the AJ for further adjudication.

1.  The Board found that the AJ properly considered the hearsay evidence of the veteran's statements in support of the appellant's removal based in the Board's long established precedent in Borninkhof v. Department of Justice, 5 M.S.P.R. 77 (1981), that hearsay evidence is admissible on Board proceedings, and the assessment of the probative value of hearsay evidence necessarily depends on the circumstances of each case.  Moreover, the Board noted that the AJ based his finding not only on hearsay evidence, but documentary evidence and the inherent implausibility of the appellant's denial of the inappropriate relationship.   

2.  The Board set forth the legal analysis for a whistleblower reprisal claim in Shibuya v. Department of Agriculture, 119 M.S.P.R. 537 (2013), that in an adverse action appeal, an appellant's claim of whistleblower reprisal is treated as an affirmative defense and once the agency proves the charged misconduct by a preponderance of the evidence, the appellant must then show by preponderant evidence that she engaged in whistleblowing activity by making a protected disclosure under 5 U.S.C. 2302(b)(8) and that the disclosure was a contributing factor in the agency's adverse action.
  
3.   The Board restated, through reliance on the court's decision in Chambers v. Department of the Interior, 515 F.3d 1362, 1367 (Fed. Cir. 2008) that a protected disclosure is a disclosure of information that the appellant reasonably believes is a violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety. The Board then noted that the appropriate test for determining whether a protected disclosure occurred is an objective one: Could a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee reasonably conclude that the actions of the government establishes one of these referenced categories of wrongdoing.  Finally, the Board stated that a common way of proving that a disclosure was a contributing factor is through the "knowledge/timing" test set forth in Wadhwa v. Department of Veterans Affairs, 110 M.S.P.R. 615, in which it is shown that the official taking the personnel action knew of the whistleblowing disclosure and took the personnel action within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action.  

4.    T
he Board restated its rule set forth in Hamilton v. Department of Veterans Affairs, 115 M.S.P.R. 673 (2011), that if the appellant has proven that she made a protected disclosure that was a contributing factor in the agency's personnel action, the burden of persuasion shifts to the agency to show by clear and convincing evidence that it would have taken the same personnel action in the absence of any protected disclosure.  The Board considers the following factors in determining whether such a clear and convincing evidentiary showing is made: (1) the strength of the agency's evidence in support of its action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency took similar actions against employees who are not whistelblowers but who are otherwise similarly situated. See Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999).        

5.  The Board found that the AJ applied an incorrect legal standard in analyzing four of the five disclosures the appellant asserted were protected under 5 U.S.C. 2302(b)(8) because the AJ required the appellant to prove that the misconduct actually occurred. The test for determining whether a disclosure is protected is not the truth of the matter disclosed, but whether the appellant reasonably believed it.  See Special Counsel v. Spears, 75 M.S.P.R. 639, 654 (1997) and WPEA, S. Rep. No. 112-155, at 8, reprinted in 2012 U.S.C.C.A.N. 589, 598.  The correct legal standard for analyzing whether a dislcosure is protected only requires the appellant to show that a disinterested observer with knowledge of the essential facts to and readily ascertainable by her could reasonably conclude: (1) that the alleged misconduct occurred; and (2) that the alleged misconduct evidences one of the categories of wrongdoing identified in 5 U.S.C. 2302(b)(8).   Here, the Board found that in addition to applying the wrong evidentiary standard in assessing whether the appellant established whether her disclosures were protected, the AJ also erred in not making specific findings in four of the five of the appellant's disclosures regarding the contributing factor element. The Board then vacated findings on these disclosures and provided specific instructions regarding further adjudication of these issues under the correct legal standard.


The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the following cases:


Petitioner: Dorothea Barnes
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3058
MSPB Docket Number: DC-0752-13-0025-I-1
Issuance Date: June 4, 2014
Appeal Type: Untimeliness
Action Type: Removal

Determination of Date of Receipt
Timeliness for Filing Petition for Review
Requirement for Showing of Good Cause for Untimeliness
Standards for Pro Se Petitioners

The appellant was removed from her GS-6 secretary position with the Equal Employment Opportunity Commission for misconduct.  The appellant appealed her removal to the Board via electronic filing.  During the litigation, the appellant failed to appear for status conferences and did not respond to multiple orders to show cause why her case should not be dismissed. On November 19, 2012, the appellant did respond to an agency deposition notice that scheduled her deposition for December 12, 2012, but only by requesting that the deposition be rescheduled to January 2013. On November 28, 2012, the AJ dismissed the case with prejudice for failure to comply with Board orders. The decision was sent to the appellant electronically, and stated that the decision would become final unless she filed a Petition for Review (PFR) by January 2, 2013. On March 4, 2013, the appellant filed her PFR. In her petition, she argued that her two month filing delay stemmed from her failure to open the e-mail containing the initial decision until February 2013, due to the Thanksgiving Holiday and a family commitment that lasted from early December 2012 through January 2013. She further claimed that the agency's failure to communicate with her over her proposed modification of the deposition date contributed to her confusion.  

The Board held that the appellant did not provide good cause for the untimeliness. She did not sufficiently explain how her family commitment precluded her from filing a timely petition for review. The Board further found that because the appellant was an e-filer, she was responsible for monitoring her case activity, even if she were pro se. Finally, the Board held that the confusion over the deposition date did not justify her late filing, because she did not provide an explanation as to how the scheduling issue led to her failure to file her PFR on time. On these grounds, the Board dismissed her PFR for untimeliness.     

Holding: The court affirmed the Board's timeliness dismissal that the appellant did not establish good cause for missing her PFR deadline by two months.

1.    The appellant's receipt date of the initial decision determines the proper deadline for filing a PFR.  Failure to open the e-mail upon receipt does not change the timing of the receipt.

2.    The appellant's citation to "family commitment," without further details as to how the commitment affected the ability to timely file a PFR, does not create good cause for untimeliness.  

3.    The appellant's confusion over potential deposition dates did not amount to good cause for untimeliness. The explanation she provided, which was that she did not hear back from the agency regarding the deposition date, did not actually explain her confusion over how the deposition date prevented her from filing her PFR.  The agency's lack of communication was due to the dismissal of her case, and therefore not a reason why she should have been confused. 

4.    Even though she proceeded pro se, her pro se status did not justify her untimeliness. Weighing against her were the extent of her delay, her knowledge of and access to the Initial Decision when it was filed, and the limited details she provided to justify her delay.  

Petitioner: Jimmie L. Miller
Respondent: Department of Veterans Affairs
Tribunal U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3061
MSPB Docket Number: AT-0752-10-0998-C-1
Issuance Date: June 5, 2014
Appeal Type: Compliance
Action Type: Settlement Agreement

Interpretation of Settlement Agreement Provision

The appellant filed an appeal from his removal from the position of Housekeeper Aid and the appeal was later dismissed as settled.  A provision in the underlying settlement agreement required the agency to place the appellant on the evening shift until he completed his spring semester in school on or about May 2011.  The agency kept the appellant on the evening shift for two years and then announced its intention to move him to the day shift in July 2013.  The appellant asserted that the agency breached the settlement agreement because he needed to remain on the night shift in order to complete his coursework.   The Board affirmed the AJ's finding that the agency was in compliance with the settlement agreement.  

Holding:   The court affirmed the Board's final decision that the agency was in compliance with the settlement agreement.  

1.  The court found that substantial evidence supported the Board's finding of compliance because the settlement provision at issue only required the agency to retain the appellant on the evening shift for one year and the agency kept him on the afternoon shift for a full two years beyond the time it was required to do so under the agreement.  

Petitioner: Renata M. Lachiewicz
Respondent: Merit Systems Protection Board
Tribunal U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3052
MSPB Docket Number: PH-0752-10-0490-I-1
Issuance Date: June 5, 2014
Appeal Type: Compliance
Action Type: Settlement Agreement


Mental or Physical Impairment as Basis for Untimely Filed Petition for Review
Forwarding Compliance Issues Raised for the First Time in Petition for Review


The appellant filed a petition for review of an initial decision that dismissed her removal appeal under the terms of a settlement agreement two years beyond the filing deadline. The appellant alleged that she entered into the settlement agreement under duress and that she was requesting a waiver of the Board's requirement for filing a petition for review within the 35 days of the decision's issuance because she suffered from mental and physical impairments.  The Board dismissed the PFR as untimely because the appellant had not identified specific periods of time in which she was impaired, she presented no evidence to support the assertion of impairment or explain why the evidence was unavailable, and did not provide an explanation of the effects her medical conditions had on the delay.   The Board then forwarded the appellant's compliance claims to the regional office for adjudication.

Holding:  The Court affirmed the Board's dismissal of the petition for review as untimely and forwarded the appellant's allegations of breach of the settlement agreement to the appropriate regional office.  

1.   The Court affirmed the Board's finding that the PFR was untimely filed and noted that the Board was correct in relying on Ford-Clifton v. Department of Veterans Affairs, 661 F.3d 655, 659 (Fed. Cir. 2011), for the proposition that petitioners must affirmatively identify medical evidence that addresses the entire period of delay and explain how an illness or medical impairment prevented a timely filing.  Here, the Court found that the appellant provided no evidence to support her claim of mental or physical impairment, nor did she present evidence to support her claim with newly discovered evidence that the settlement agreement was invalid.

2.   The Court noted that in  Harris v. U.S. Postal Service, 59 M.S.P.R. 222, 225 (1993) and other opinions, that the Board has held that where allegations of noncompliance are raised for the first time before the full Board, the Board will forward the submission to the appropriate regional office for adjudication as a petition for enforcement.  

Petitioner: Elizabeth Ruth Dabney
Respondent: Merit Systems Protection Board
Tribunal U.S. Court of Appeals for the Federal Circuit
Case Number: 2013-3149
MSPB Docket Number: AT-0752-12-0448-I-1
Issuance Date: June 5, 2014
Appeal Type: Jurisdiction
Action Type: Removal


Jurisdiction Over Preference Eligible Veteran U.S. Postal Service Employees

The appellant appealed her removal from the position of Rural Letter Carrier based on a charge relating to an accident she was in with her postal vehicle.  The AJ dismissed the appeal for lack of jurisdiction based on a finding that the appellant was not a preference-eligible veteran with appeal rights to the Board.  

Holding:   The Court affirmed the jurisdictional dismissal.


1.  Under 5 U.S.C. 7511(a)(1)(B)(2006) and 39 U.S.C. 1005(a) (2011), an employee of the U.S. Postal Service who seeks to appeal a removal decision to the Board must be a preference eligible veteran, a management or supervisory employee, or an employee engaged in certain personnel work.  In the case of a Postal Service employee who asserts a veterans preference eligible status, this is established by showing that the veteran served on active duty as specifically defined under 5 U.S.C.   2108(1), (3) (2011).   Here, the Court affirmed the Board's finding that the appellant did not establish preference eligibility for Postal Service MSPB appeal purposes because the appellant's Military Form DD214 did not show that she ever received a campaign badge or that she served in a campaign expedition for which a campaign badge had been authorized.   That the appellant's Notice of Personnel Action form lists her as veterans preference "2" does not overcome the controlling weight accorded the DD214 Form.  

Petitioner: David Dean
Respondent: Merit Systems Protection Board
Tribunal U.S. Court of Appeals for the Federal Circuit
Case Number: 
2013-3026
MSPB Docket Number: AT-3330-12-0696-I-1
Issuance Date: June 6, 2014
Appeal Type: Jurisdiction
Action Type: VEOA


Failure to Exhaust Administrative Remedies Before DOL

The appellant filed a complaint with the Department of Labor (DOL) alleging that his rights under VEOA were violated because, he alleged, OPM attached restrictive requirements for veterans to apply for the Presidential Management Fellows (PMF) program that were not required of non-veterans.  The appellant did not specify any specific positions for which he applied.  DOL then issued the appellant a letter notifying him that his complaint was premature because there was no evidence of an alleged violation in that the appellant applied for a position under the PMF program.   DOL went on to advise the appellant that he could file a new complaint within 60 days fter the date of the alleged violation.   Instead, the appellant filed an appeal with the Board.  The AJ dismissed the appeal for lack of jurisdiction because the appellant failed to show that he exhausted his administrative remedies and he did not otherwise make a non-frivolous allegation that the agency violated his rights under VEOA.  The Board affirmed the initial decision based on the exhaustion finding.

Holding:    The Court affirmed that Board's jurisdictional dismissal based on the finding that the appellant failed to exhaust his administrative remedies.  


1.  The Court affirmed that in order to establish Board jurisdiction over a VEOA appeal, the appellant must make a threshold showing that he exhausted his remedy with DOL. Here, the appellant filed a premature complaint with DOL that was not the equivalent of exhausting his remedies with DOL.  The court futher noted that the appellant's argument that his complaint before DOL was premature but not untimely does not address the overall requirement for exhaustion before DOL.




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