Lillian B. Logan v. Merit Systems Protection Board

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3325
LILLIAN B. LOGAN,
Plaintiff-Appellant,
v.
MERIT SYSTEMS PROTECTION BOARD,
Defendant-Appellee.
________________________
DECIDED: February 8, 2006
________________________
Before BRYSON, GAJARSA, and DYK Circuit Judges.
PER CURIAM.
DECISION
Lillian Logan (“Ms. Logan”) appeals from the final decision of the Merit Systems
Protection Board (“Board”) dismissing her appeal of her removal as a secretary from the
Department of Education (“DOE”) as having been untimely filed without a showing of
good cause for delay. Logan v. Dep’t of Educ., M.S.P.B. No. DC-0752-05-0320-I-1
(June 17, 2005) (“Final Order”). We affirm.

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BACKGROUND
On February 1, 2002, the DOE notified Ms. Logan that she would be removed
from her secretary position due to excessive absences and failure to follow leave
procedures. Ms. Logan was charged with ten such violations within the time period of
October 1, 2001 through November 2, 2001. Ms. Logan’s record reflects that she also
served a two-day suspension in March, 1991; a ten-day suspension in April, 1993; and
a ninety-day suspension in June, 2001 for similar disciplinary problems. Her removal
date was initially set for February 17, 2002 but was postponed to March 1, 2002. On
February 6, 2002, Ms. Logan filed a grievance with the DOE concerning her removal
pursuant to the Union’s negotiated grievance procedure. A final decision was rendered
by the DOE on February 22, 2002, denying her grievance and sustaining her removal.
On April 12, 2002, Ms. Logan, after consulting a union representative, filed an
informal discrimination complaint with the Informal Dispute Resolution Center (“IDRC”)
requesting a reasonable accommodation. Ms. Logan subsequently filed a formal
discrimination complaint with the DOE on June 4, 2002. The DOE dismissed the
complaint, on the ground that it was barred by the petitioner’s previous grievance, filed
on February 6, 2002.
Ms. Logan then appealed her dismissal to the Equal Employment Opportunity
Commission (“EEOC”). The EEOC questioned whether a discrimination claim should be
raised under the DOE’s grievance procedure and remanded her grievance to the DOE
on April 23, 2003. In later EEOC proceedings, it appeared that the collective bargaining
agreement with the DOE required that discrimination claims should be raised in the
grievance procedure. The EEOC determined that because Ms. Logan elected to
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proceed through the grievance procedure, she could not file an Equal Employment
Opportunity complaint on the same matter. Thus, it dismissed the discrimination
complaint as being barred by the prior grievance filing. Ms. Logan appealed this
decision with the EEOC. The EEOC dismissed the appeal on January 24, 2005.
Ms. Logan, on February 28, 2005, filed an appeal with the Board. The
Administrative Judge (“AJ”) issued an initial decision on May 13, 2005 dismissing Ms.
Logan’s petition as untimely. The AJ based the decision on 5 U.S.C. § 7121(e)(1)
(2005), which states that an employee, covered by a negotiated grievance procedure,
who has the right to challenge an adverse action, may do so by filing a grievance or an
appeal to the Board, but not both. (emphasis added). An exception to this process
exists, however, when a grievance has been filed before the effective date of removal,
as occurred here. Thus, Ms. Logan may have filed with the Board within the Board’s
normal 30 day filing deadline. 5 C.F.R. § 1201.22(b) (2006). The AJ also noted that
because the complaint alleges that the adverse action was premised on a discrimination
claim, Ms. Logan retained a limited right to seek Board review of the final grievance if
she requested the review within 35 days of the issuance of the February 22, 2002
grievance decision or within 30 days from her receipt of the decision by the Board, if she
received the decision more than five days after the date of issuance. 5 C.F.R. §
1201.154(d) (2006). The AJ’s initial decision became final when no petition for review
was filed with the Board. 5 C.F.R. § 1201.113 (2005).
Ms. Logan now appeals the Board’s decision to determine whether her
complaint, although untimely filed, might be heard due to exigent circumstances.
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STANDARD OF REVIEW
This court must affirm the decision of the Board unless the decision was:
“(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (2005);
Kievenaar v. Office of Personnel Mgmt., 421 F.3d 1359, 1362 (Fed. Cir. 2005). This
court has jurisdiction over “a petition to review a final order or final decision of the
Board.” 5 U.S.C. § 7703(b)(1) (2005).
DISCUSSION
Under 5 C.F.R. § 1201.154(d) (2006), Ms. Logan had 35 days from the issuance
of the February 22, 2002 decision on her grievance to file with the Board in order to be
granted a hearing. Hutchinson v. Dep’t of Labor, 91 M.S.P.R. 31, 33 (2001). To be
timely, Ms. Logan had to file her notice with the Board by March 29, 2002, not February
28, 2005. Because of the substantial delay of the filing, Ms. Logan appealed to the
Board for a determination as to whether there was a good cause for her failure to file
timely. Alonzo v. Dep’t of the Air Force, 4 M.S.P.R. 180, 182 (1980). Ms. Logan bears
the burden of proof to show good cause for an untimely filing. 5 C.F.R.
§ 1201.56(a)(2)(ii) (2005). This must be established by a preponderance of the
evidence. Id.
There are several factors which must be considered by the Board before
deciding whether to allow a case to be filed untimely. Alonzo, 4 M.S.P.R. at 184.
These factors consist of, but are not limited to
“the length of the delay; whether appellant was notified of the time limit or
was otherwise aware of it; the existence of circumstances beyond the
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control of the appellant which affected his ability to comply with the time
limits; the degree to which negligence by the appellant has been shown to
be present or absent; circumstances which show that any neglect involved
is excusable neglect; a showing of unavoidable casualty or misfortune;
and the extent and nature of the prejudice to the agency which would
result from waiver of the time limit.” Id.
Ms. Logan argues that because of her mental condition she was unable to
comply with the time limits. She claims that due to the erroneous advice of her union
representative, she filed with the wrong agency and that she should not be barred by
the advisor’s mistakes. She also claims that even if she filed a petition with the wrong
agency, the petition should be deemed timely nonetheless. She also argues that she
was not notified of the proper appeal procedures.
Ms. Logan first claimed that her depression caused her to be absent from work
and also caused her to file her untimely appeal to the Board. She supports this
statement with disoriented evidence of doctor’s notes throughout her briefs.
The Board may grant a waiver for an untimely filing if the appellant can establish
that the illness professed affected his/her ability to file. Stout v. Merit Systems
Protection Board, 389 F.3d 1233, 1235 (Fed. Cir. 2004) citing Lacy v. Dep’t of the Navy,
78 M.S.P.R. 434, 437 (1998). To establish that the untimely filing was caused by an
illness, the party must: “(1) Identify the time period during which [s]he suffered from the
illness; (2) submit medical evidence showing that [s]he suffered from the alleged illness
during that time period; and (3) explain how the illness prevented [her] from timely filing
[her] appeal or a request for an extension of time.” Id. See generally Andrews v. Dep’t of
the Army, 76 M.S.P.R. 147, 151 (1997).
Here, Ms. Logan only presents evidence she had been depressed from 1995
through February 6, 2002, the day on which she filed the grievance. Ms. Logan,
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however, fails to submit supporting evidence showing that her illness during the relevant
time period, namely from February 22, 2002 through February 25, 2005, prevented her
from filing within the required time period. In this case, Ms. Logan was given the
opportunity to present the evidence necessary to warrant consideration of good cause,
but she did not set forth any such evidence. The Board considered the medical
information as presented by Ms. Logan and found it inadequate.
Ms. Logan also blames her union representative’s advice to file with the IDRC on
April 12, 2002 for causing the delay in filing her petition of discrimination with the Board.
She argues that she acted reasonably in relying on the advice of her union
representative in not filing with the Board. This argument also fails. Although her union
advisor may have provided her with erroneous information, the advisor is viewed as her
agent and as such the union advisor’s actions bind her. Massingale v. Merit Systems
Protection Board, 736 F.2d 1521, 1523 (Fed. Cir. 1984). Therefore, she cannot rely on
the erroneous advice of the union advisor as good cause for the Board to review an
untimely petition.
Furthermore, even if Ms. Logan did file the petition of discrimination with the
Board instead of the IDRC on April 12, 2002, it was still an untimely petition. It is well
established that if an employee timely files with the wrong agency, the filing could be
considered timely filed with the correct agency. Miller v. Dep’t of the Army, 987 F.2d
1552, 1556 (Fed. Cir. 1993). Under Miller, she would have had to file the petition with
the IDRC by March 29, 2002. She filed the petition on April 12, 2002, which was
beyond the 35 day filing period.
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Lastly, Ms. Logan alleges that when the decision on her grievance dated
February 22, 2002 was issued, there was no information regarding the appeal
procedure presented at that time, causing her extensive delay in filing. In Lacy v. Dept’t
of the Navy, the Board determined that because the appellant was never informed of
the specific criteria as set forth in Andrews for securing a waiver on the Board’s time
limit on the basis of physical or mental illness, the appellant was denied the fair
opportunity to address the timeliness issue. 78 M.S.P.R. at 439. However, when Ms.
Logan received her removal notice on February 1, 2002, she received information of the
appeals process, including the name and phone number of an Employee Relations
Team staff member that she could contact for assistance. Because she was in fact
advised of her appropriate appeal rights, the Board denied her untimely filing.
In light of the three year delay of Ms. Logan’s appeal and because she received
appeal information in a timely fashion, the Board did not abuse its discretion by
determining that Ms. Logan did not establish good cause by a preponderance of the
evidence. The decision of the Board is affirmed.
No costs.
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