Altoine Barker v. United States Postal Service ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALTOINE BARKER, DOCKET NUMBER
Appellant, CH-0752-16-0158-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: December 14, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Altoine Barker, Chicago, Illinois, pro se.
Heather L. McDermott, Esquire, Chicago, Illinois, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for lack of jurisdiction . Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required pr ocedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The agency proposed the appellant’s removal from his City Carrier position.
Initial Appeal File (IAF), Tab 7 at 42-51. The union filed a grievance on his
behalf challenging the proposed action. Id. at 52-56; IAF, Tab 17 at 4. The
agency issued a decision imposing the removal. IAF, Tab 7 at 58-60.
Meanwhile, the appellant also filed the instant appeal challenging his removal.
IAF, Tab 1. The agency and the union subsequently settled the grievance. IAF,
Tab 17. The administrative judge issued an initial decision that dismissed the
appeal for lack of jurisdiction because the grievance settlement was a final
settlement of all of the appellant’s challenges to his removal. IAF, Tab 34, Initial
Decision (ID) at 2‑4. The appellant has filed a petition for review, the agency
has responded, and the appellant has replied. Petition for Review (PFR) File,
Tabs 1, 3‑4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶3 For the first time on review, the appellant includes the entire U.S. Postal
Service and National Association of Letter Carriers Joint Contract Administration
Manual and asserts that his removal violated the contract. PFR File, Tab 1 at 3,
6-473. We find that the appellant has not shown that this evidence and argument
3
previously was unavailable despite his due diligence and thus we do not consider
it. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980); 5 C.F.R.
§ 1201.115(d). In any event, it is immaterial to the dispositive jurisdictional
issue and thus would not provide a basis for disturbing the initial decision.
Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).
¶4 On review, the appellant asserts, as he did below, that he should not be
bound by the settlement agreement because the union represented him regarding
the proposal but acted on its own behalf when it settled his removal. PFR File,
Tab 1 at 3. We disagree.
¶5 When an employee chooses to file and settle a grievance by agreeing to
lesser discipline, that course of action is presumptively voluntary and therefore
divests the Board of jurisdiction over the underlying matter. Rhett v. U.S. Postal
Service, 113 M.S.P.R. 178, ¶8 (2010); Swink v. U.S. Postal Service,
111 M.S.P.R. 620, ¶ 9 (2009), aff’d, 372 F. App’x 90 (Fed. Cir. 2010), overruled
on other grounds by Abbott v. U.S. Postal Service, 121 M.S.P.R. 294 (2014).
¶6 Here, the appellant submitted arguments in support of the grievance
regarding the proposed removal. IAF, Tab 7 at 52-56. He acknowledged that the
union was representing him when he wrote to his representative stating his
position regarding the grievance. IAF, Tab 26 at 5-8. After the agency issued its
removal decision, the union and the agency entered into a Step B settlement
regarding the grievance, agreeing to, among other things, reduce the notice of
removal to a letter of warning, return the appellant to work , and make him whole
from the period of his removal until his return to work. IAF, Tab 17 at 4‑8. The
agreement stated that it was a complete and final settlement of the grievance.
Id. at 8. The appellant has not provided any evidence that he involuntarily
entered into the agreement, was unaware of the union’s activities, or did not
designate the union to act on his behalf.
¶7 Moreover, we find that the appellant failed to meet his burden of
establishing that he reserved his Board appeal rights regarding the removal.
4
Johnson v. U.S. Postal Service, 108 M.S.P.R. 502, ¶ 16 (2008), aff’d,
315 F. App’x 274 (Fed. Cir. 2009). Considering the appellant’s participation in
the grievance process and the fact that he accepted a substantially reduced penalty
as a result of the agreement, we find that he has not rebutted the presumption that
he waived his Board appeal rights. Thus, we find that the administrative judge
properly dismissed the appeal for lack of jurisdiction. See Swink, 111 M.S.P.R.
620, ¶ 11.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS 2
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
2
The administrative judge afforded the appellant mixed-case appeal rights. However,
when, as here, the Board lacks jurisdiction over an appeal, we provide notice of
nonmixed-case appeal rights. Conforto v. Merit Systems Protection Board, 713 F.3d
1111, 1117-19 (Fed. Cir. 2013). We have provided the appellant the proper review
rights here.
5
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.