Robin L. Royal-Bird v. Department of Defense ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBIN L. ROYAL-BIRD, DOCKET NUMBER
Appellant, CH-3443-16-0170-I-1
v.
DEPARTMENT OF DEFENSE, DATE: December 20, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Robin L. Royal-Bird, Indianapolis, Indiana, pro se.
Cynthia C. Cummings, Esquire, Indianapolis, Indiana, 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 her appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circumstances: 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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 procedures 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).
¶2 The appellant is employed as a Military Pay Technician. Initial Appeal File
(IAF), Tab 1 at 16. In December 2015, she was reassigned, without any change in
duty station, pay, or grade. Id. at 10-13, 16-17. The appellant filed the instant
appeal, alleging that this action was reprisal for filing a complaint against
management officials and participating as an equal employment opportunity
(EEO) representative. Id. at 5.
¶3 The administrative judge ordered the appellant to meet her ju risdictional
burden. IAF, Tabs 2-3. Although she failed to submit a timely response, the
appellant later responded to a show cause order with argument and evidence
suggesting that she was improperly reassigned and subjected to a hostile work
environment. Compare IAF, Tab 6, with IAF, Tabs 7-8.
¶4 Without holding the requested hearing, the administrative judge dismissed
the appeal for lack of jurisdiction. IAF, Tab 9, Initial Decision (ID). First, he
found that the appellant failed to nonfrivolously allege that she was subjected to
an appealable adverse action. ID at 3-4. Next, to the extent that her appeal could
be construed as an individual right of action (IRA) appeal, he found that the
appellant failed to show that she exhausted her administrative remedies with the
Office of Special Counsel (OSC). ID at 4-5. The administrative judge also noted
that reprisal for engaging in EEO activity is not an independent basis for finding
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jurisdiction over an IRA appeal. ID at 5. The appellant has filed a petition for
review. Petition for Review (PFR) File, Tab 1. The agency has filed an
untimely 2 response and the appellant has replied. PFR File, Tabs 5-6.
¶5 In her petition for review, the appellant does not clearly articulate any error
in the administrative judge’s decision. Instead, she submitted a number of
unexplained documents and reasserts that the agency committed a number of
improprieties. PFR File, Tab 1. She generally attributes the alleged
improprieties to discrimination, EEO reprisal, and whistleblowing. Id. at 28-34.
¶6 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). In the absence of a reduction
in pay or grade, the appellant’s reassignment and purported hostile work
environment are not appealable adverse actions under 5 U.S.C. chapter 75.
5 U.S.C. §§ 7512, 7513(d). The Board also lacks jurisdiction over the appellant’s
claims of discrimination and EEO reprisal in connection with nonappealable
actions. See Lethridge v. U.S. Postal Service, 99 M.S.P.R. 675, ¶¶ 8-9 (2005);
see also Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980) (holding that
prohibited personnel practices under 5 U.S.C. § 2302(b) are not an independent
source of Board jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
Thus, we agree with the administrative judge’s conclusion that the appellant
failed to present nonfrivolous allegations of Board jurisdiction pursuant to
5 U.S.C. chapter 75. ID at 3-4; see generally Ferdon v. U.S. Postal Service,
60 M.S.P.R. 325, 329 (1994) (recognizing that an appellant is entitled to a
jurisdictional hearing if she makes a nonfrivolous allegation that the Board has
jurisdiction over her appeal).
¶7 We also agree with the administrative judge that the appellant failed to meet
her jurisdictional burden over this matter as an IRA appeal. ID at 4-5. To
2
We find it unnecessary to rule on the agency’s motion to accept its untimely response.
PFR File, Tab 5 at 4-10.
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establish the Board’s jurisdiction over an IRA appeal, an appellant must have
exhausted her administrative remedies before the OSC and make nonfrivolous
allegations of the following: (1) she engaged in whistleblowing by making a
protected disclosure under 5 U.S.C. § 2302(b)(8), or engaged in other protected
activity as specified in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the
disclosure or activity was a contributing factor in the agency’s decision t o take or
fail to take a personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). 5 U.S.C.
§§ 1214(a)(3), 1221; Yunus v. Department of Veterans Affairs,
242 F.3d 1367, 1371 (Fed. Cir. 2001).
¶8 In accordance with the aforementioned exhaustion element, an employee is
required to seek corrective action from the OSC before seeking corrective action
from the Board, and the Board may only consider charges that the appellant raised
before OSC. Baldwin v. Department of Veterans Affairs, 113 M.S.P.R. 469, ¶ 8
(2010). An appellant must inform OSC of the precise ground of her charge,
giving OSC a sufficient basis to pursue an investigation which mi ght lead to
corrective action. Id.¶9 Below, the appellant failed to show that she sought corrective action with
OSC prior to coming before the Board. ID at 5; see IAF, Tabs 1, 7-8. However,
the appellant has submitted a closeout letter from OSC for the first time with her
petition for review, which we now consider. PFR File, Tab 1 at 37-39; compare
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (recognizing that 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), with Atkinson v. Department of State,
107 M.S.P.R. 136, ¶ 12 (2007) (accepting evidence, which the appellant
submitted for the first time on review although he could have submitted it below,
that he exhausted his remedies before OSC); Hawkins v. Department of
Commerce, 98 M.S.P.R. 107, ¶¶ 7-8 (2004) (remanding an IRA appeal that
became ripe while pending on petition for review because OSC terminated its
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inquiry and informed the appellant of his Board appeal rights). Even with this
new evidence, we find that the appellant has failed to meet her
jurisdictional burden.
¶10 An appellant must show what specific claims she presented to OSC by
providing her OSC complaint, any amendments to the complaint, OSC’s
correspondence discussing the claims, and/or her responses to OSC’s
correspondence discussing the claims. Baldwin, 113 M.S.P.R. 469, ¶ 8. Here, the
appellant presented OSC’s closeout letter, but no other clear argument or
evidence concerning the exhaustion requirement. 3 OSC’s letter indicates that the
appellant alleged that she was moved to a new department and subjected to a
hostile work environment. PFR File, Tab 1 at 38. It further suggests that the
appellant attributed these actions to her filing a series of EEO complaints against
management and her serving as an EEO representative for others. Id. However,
it does not include other relevant details, such as the nature of the appellant’s
EEO activity, the individuals involved in that activity, or the individuals
responsible for the purported reprisal. Cf. Swanson v. General Services
Administration, 110 M.S.P.R. 278, ¶ 8 (2008) (finding that an appellant satisfied
the exhaustion requirement when, with reasonable clarity and precision, he
informed OSC of the content of his disclosure, the individual to whom it was
made, the nature of the personnel actions allegedly taken in retaliation, and the
individuals responsible for taking those actions). Therefore, the appellant has
failed to prove what matters she may have exhausted with OSC and whether those
matters fall within the Board’s jurisdiction over IRA appeals. See, e.g., Mudd v.
Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013) (recognizing that
3
Aside from the OSC closeout letter, the appellant submitted a number of other
documents with her petition for review. E.g., PFR File, Tab 1 at 2-26. However, the
appellant has failed to explain the documents and it is not apparent whether or how they
relate to her jurisdictional burden. See Luecht v. Department of the Navy, 87 M.S.P.R.
297, ¶ 8 (2000) (recognizing that a party whose submissions lack clarity risks being
found to have failed to meet his or her burden of proof).
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the Whistleblower Protection Enhancement Act of 2012 extended the Board’s
jurisdiction over IRA appeals to claims of reprisal for filing complaints seeking
to remedy whistleblower reprisal under 5 U.S.C. § 2302(b)(8), but not to other
types of complaints); see also 5 U.S.C. § 2302(b)(9)(B)(extending the Board’s
jurisdiction over IRA appeals to claims of reprisal for “testifying for or otherwise
lawfully assisting any individual in the exercise of any right referred to in
subparagraph (A)(i) or (ii)”). We find, because the appellant failed to meet her
jurisdictional burden, the administrative judge properly dismissed her appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit.
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 want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U.S. Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
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review in one court of appeals, you may be precluded f rom seeking review in any
other court.
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.
Dec. 27, 2012). You may read this law and other sections of the United States
Code, at our website, http://www.mspb.gov/appeals/uscode.htm. Additional
information about the U.S. Court of Appeals for the Federal Circuit 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. Additional information
about other courts of appeals can be found at their respective websites, which c an
be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
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.