A fired federal employee who appealed to the Merit Systems Protection Board about 19 months after the deadline has managed to persuade the federal appeals court to overturn the Board’s dismissal of her appeal as untimely and therefore has won the right to have her case heard on the merits. (Toyama v. Merit Systems Protection Board, C.A.F.C. No. 2006-3281, 3/13/07) The following facts are taken from the court’s opinion.
Toyama was fired by the Department of Health and Human Services from her GS-13 Public Health Advisor position in late 2002 for failing to accept a directed reassignment from Honolulu to Atlanta. She filed a discrimination complaint with her agency based on race, physical disability, national origin, religion and reprisal. Eventually the agency made a finding of no discrimination.
Toyama also turned to the Board to appeal her removal. She later requested that the Board dismiss her appeal without prejudice so she could pursue her discrimination complaint with HHS and the Equal Employment Opportunity Commission. The Board granted Toyama’s motion and in its decision advised her that when she received a final agency decision on her EEO complaint she would have 30 days to refile her appeal with the Board. (p. 2)
The EEOC administrative judge found no discrimination on Toyama’s complaints and HHS adopted this finding in its final agency decision. In its decision, the agency outlined Toyama’s appeal rights. They notified her that she had the option of either going to the EEOC’s Office of Federal Operations for a review of HHS’s final decision, or filing a civil action in a district court. The agency made no mention of the right to refile with the MSPB within 30 days of the agency decision. Toyama opted to appeal to the EEOC. That eventually resulted in a decision affirming the agency’s finding of no discrimination. Toyama then filed a civil action in a U.S. district court in early 2004. (p. 2)
As it turns out, the only avenue for Toyama to include a Family and Medical Leave Act claim in her case was through an appeal to the MSPB. When she realized this, Toyama refiled her appeal with the Board at the end of December 2005, about 19 months past the deadline for filing a MSPB appeal.
The Board found that the appeal was untimely and that there was no good cause to excuse the late filing. Therefore, it dismissed Toyama’s appeal. (p. 3)
Toyama next decided to try her hand with the Federal Circuit Court of Appeals where she challenged the Board’s dismissal of her appeal.
After a rather exhaustive treatment of the ins and outs of “mixed case appeals” (i.e. those involving allegations of discrimination as well as an appeal from an adverse action), including a discussion of the various time limits, jurisdictions, etc. for such appeals, the court sifted through the 4-plus years of this case’s history, and concluded that the Board erred in dismissing Toyama’s appeal. The court pointed to the agency’s notice of appeal rights that accompanied its final agency decision as “incorrect.” The agency should have told Toyama that she had the right to file suit in a district court or file an appeal to the MSPB. The court’s decision points out “Toyama followed those erroneous instructions and therefore did not appeal to the MSPB until much later in time.” (p. 5)
Not surprisingly, Toyama argued to the appeals court that since she was not given proper notice of her appeal rights, she had good cause for refiling her appeal so late. Predictably, the government argued that Toyama was provided by the Board with specific notice of the 30-day time limit for refiling her appeal when it granted her petition to dismiss the appeal in the first place.
The court sided with Toyama and had this to say about the government’s position: “…[The MSPB] dismissal could not supply Toyama with adequate notice of her appeal rights, because the regulations unambiguously require the agency to advise the complainant…. Under the government’s view, when Toyama received the agency’s notice … she should have known enough to ignore that notice and hearken back to the MSPB administrative judge’s notice two years earlier. We disagree and conclude that she acted reasonably…” (p. 7; emphasis in original)
Bottom line—the court concludes that the Board’s holding is “arbitrary, capricious, and an abuse of discretion.” The matter is remanded to the Board for a hearing on the merits. (p. 8)
