Connie Collins v. Department of Veterans Affairs

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

CONNIE LYNN COLLINS, DOCKET NUMBER

Appellant, AT-0752-25-1707-I-1 v.

DEPARTMENT OF VETERANS DATE: September 17, 2026 AFFAIRS,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1 Raymond Mitchell , Columbia, South Carolina, for the appellant. Glenn H. Parrish , Esquire, Nashville, Tennessee, for the agency.

BEFORE James J. Woodruff II, Chairman Henry J. Kerner, Vice Chairman REMAND ORDER

The appellant has filed a petition for review of the initial decision, which dismissed this removal appeal as untimely filed without good cause. For the reasons discussed below, we GRANT the appellant’s petition for review, REVERSE the initial decision, and REMAND the case to the regional office for further adjudication in accordance with this Remand Order.

DISCUSSION OF ARGUMENTS ON REVIEW The agency hired the appellant to the position of Practical Nurse in 2018. Initial Appeal File (IAF), Tab 1 at 16-17. In March 2024, the agency proposed her removal for medical inability to perform. Id. at 7. While this was pending, the appellant suffered sudden cardiac arrest at work. Id. at 2. Three days later, on April 1, 2024, the agency issued its decision to remove the appellant, effective April 12, 2024. Id. at 12.

On May 1, 2025, more than a year after the removal, the appellant filed this appeal to challenge her removal. Id. at 1-2. Importantly, in the portion of the Board’s standard appeal form asking for key dates, the appellant identified the effective date of the agency action or decision as April 1, 2024, but the date of the agency’s final decision letter as April 2, 2025. Id. at 2.

The administrative judge issued a timeliness order, which made no mention of the appellant’s reference to a decision on April 2, 2025, and relied, instead, on the April 12, 2024 date of the removal. IAF, Tab 3. During the response period for the timeliness order, the appellant did not respond, but the agency filed a motion to dismiss the appeal as untimely. IAF, Tab 3, Tab 6 at 4-5. Within, the agency indicated that it was aware of no related equal employment opportunity (EEO) claim or other reason that would render the appeal timely. IAF, Tab 6 at 4.

The administrative judge issued an initial decision that granted the agency’s motion, dismissing this appeal as untimely filed without good cause. IAF, Tab 9, Initial Decision (ID). She reasoned that, because the appellant had not filed an EEO complaint about her removal, the appellant had just 30 days after the removal to file the instant appeal and that the appellant did not establish good cause for her failing to do so. ID at 3.

The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. Within, she refers to her hospitalization (presumably from the cardiac arrest) as impacting her challenges to the removal action. Id. at 1. More importantly, the appellant also presents argument and evidence that, contrary to the agency’s prior representation, she pursued her removal through the EEO process before pursuing it with this Board appeal. Id. Consistent with her initial appeal form indicating that she received the agency’s final decision letter on April 2, 2025, the appellant attached evidence showing this as the date of a final agency decision (FAD) regarding her EEO complaint. Id. at 3-4.

The agency has responded to the appellant’s petition for review, admitting that it had previously erred regarding the existence of any EEO complaint about the appellant’s removal. PFR File, Tab 3. The agency’s representative explained that this error was the result of him having only recently joined the agency and misunderstanding the agency’s system of tracking EEO complaints. Id. at 4. Like the appellant, he attached evidence of the April 2, 2025 FAD. Id. at 6-14.

A mixed case arises when an appellant has been subject to an action that is appealable to the Board and she alleges that the action was effected, in whole or in part, because of discrimination. Davis v. Department of Veterans Affairs, 2022 MSPB 45, ¶ 8. Pursuant to 5 U.S.C. § 7702(a)(1) and (2), an appellant has two options when filing a mixed-case appeal: (1) she may initially file a mixed-case EEO complaint with her employing agency followed by an appeal to the Board; or (2) she may file a mixed-case appeal with the Board and raise her discrimination claims in connection with that appeal. Id. The regulation addressing the filing of mixed cases with the Board is 5 C.F.R. § 1201.154, which provides that an appellant may file a Board appeal of an adverse action alleging discrimination or retaliation in violation of EEO statutes within 30 days of the effective date of the action, or 30 days from the appellant’s receipt of the agency’s decision on an EEO complaint, whichever is later. Id.

Below, the administrative judge found that the deadline for filing an appeal in this matter was May 13, 2024, because the appellant had not filed an EEO complaint. But we now know this to be incorrect. The appellant did file an EEO complaint, and she received the associated FAD on April 2, 2025, less than 30 days before her filing date in this appeal. IAF, Tab 1; PFR File, Tab 1 at 3-4, Tab 3 at 6-14. We know this based upon evidence submitted by both the appellant and the agency on review.

Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted for the first time with the petition for review absent a showing that it was unavailable before the record was closed despite the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14 (1980). However, given the unique circumstances at hand, we decline to apply that general rule. This is because the appellant’s initial pleading indicated that she received the agency’s final decision letter on April 2, 2025, i.e., the date of the FAD regarding her EEO complaint, and because the agency erroneously (though inadvertently) misrepresented that there was no such EEO complaint or FAD to render this Board appeal timely.

We recognize that the appellant could have been clearer about the April 2, 2025 date being the date of the agency’s FAD, thereby making it more clear to the administrative judge that this appeal was, in fact, timely. Similarly, the appellant could have corrected the agency’s misrepresentation about the existence of any EEO complaint and FAD during the period in which the administrative judge sought argument and evidence about the timeliness of this appeal. Going forward, we caution the appellant to be more diligent. In any event, we reverse the initial decision, which found this appeal untimely filed without good cause. We find that the appeal was timely filed.

ORDER

For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.