Dianna M. Worthey v. Department of Veterans Affairs
Background
- Appellant Dianna Worthey was removed for unacceptable performance effective February 24, 2012. The removal notice informed her of mixed-case options (EEO grievance, formal EEO complaint, or Board appeal) and that whichever forum she chose first was her election.
- Worthey requested informal EEO counseling and the agency closed counseling on April 19, 2012, allegedly mailing a Notice of Right to File (NORF) advising 15 days to file a formal complaint. Worthey contends she never received the NORF.
- Worthey did not pursue matters further until January 2015, learned her informal complaint had been closed, and was notified in April 2015 that no formal complaint had been filed. She filed a Board appeal on April 25, 2015, over three years after removal.
- The agency moved to dismiss as untimely. After an initial dismissal without prejudice and refiling by Worthey, the administrative judge dismissed the refiled appeal as untimely without good cause; the AJ found Worthey received the NORF and the removal notice adequately explained her options and deadlines.
- On petition for review, the Board affirmed: Worthey had 30 days from the removal effective date to appeal to the Board, she filed over three years late, and she failed to show due diligence or other good cause to excuse the delay.
Issues
| Issue | Worthey's Argument | Department's Argument | Held |
|---|---|---|---|
| Timeliness of Board appeal | Delay excused because she never received the NORF and was confused about mixed-case process as a pro se litigant | Appeal untimely; agency provided notice of options/deadlines and evidence of mailing; no good cause for 3+ year delay | Appeal untimely by >3 years; dismissal affirmed — no good cause shown |
| Effect of only filing informal EEO counseling | Informal counseling should not preclude mixed-case relief; lack of NORF prevented timely election | Only informal counseling was filed, so Board 30-day filing rule from effective date applies | Because no formal complaint was filed, the 30-day Board filing period applied; Worthey missed it |
| Whether nonreceipt of NORF alone establishes good cause | Nonreceipt plus later notice of closure in Jan 2015 should excuse delay | Even assuming NORF nonreceipt, Worthey waited until Jan 2015 to act and then further delayed until April 2015 while pursuing other proceedings | Nonreceipt would not be dispositive; Worthey failed to act promptly after learning of closure and did not show due diligence |
| Pro se status as basis for good cause | Pro se status and confusion justify equitable relief for late filing | Pro se status does not overcome long delay and clear notices of deadlines | Pro se status considered but insufficient given length of delay and prior notices |
Key Cases Cited
- Augustine v. Department of Justice, 100 M.S.P.R. 156 (Board 2005) (first-filed election to proceed in forum governs mixed-case choice)
- Cranston v. U.S. Postal Service, 106 M.S.P.R. 290 (Board 2007) (good-cause analysis for late-filed appeals; mixed-case timing distinctions)
- Alonzo v. Department of the Air Force, 4 M.S.P.R. 180 (1980) (standard for due diligence/ordinary prudence showing good cause)
- Moorman v. Department of the Army, 68 M.S.P.R. 60 (1995) (factors for assessing good cause: length of delay, reasonableness, pro se status, circumstances beyond control)