Tamara Hudson v. United States Postal Service ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TAMARA HUDSON, DOCKET NUMBER
Appellant, AT-0752-17-0106-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: January 30, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Tamara Hudson, Fayetteville, North Carolina, pro se.
Greg Allan Ribreau, Charlotte, North Carolina, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her termination 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
erroneous interpretation of statute or regulation or the erroneous application of
the law to 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).
BACKGROUND
¶2 From July 9, 2016, the appellant, a preference-eligible veteran, held the
Postal Support Employee (PSE) Sales and Services Associate (SSA) position at
the Morrisville Post Office in Morrisville, North Carolina. Initial Appeal File
(IAF), Tab 5 at 4, Tab 6 at 12. Effective July 26, 2016, she was terminated for
failing an SSA exam. IAF, Tab 6 at 13-14. From August 20, 2016, she held the
PSE Mail Processing Clerk position at the Fayetteville Post Office in Fayetteville,
North Carolina. Id. at 43. Effective September 3 and 17, 2016, she was
reassigned to the PSE SSA position at the Lakedale Station in Fayetteville, North
Carolina. Id. at 44-45. On or around November 9, 2016, she was terminated for
falsifying information on her application for the PSE Mail Processing Clerk
position by failing to disclose that she was a former employee at the Morrisville
Post Office and that she had been terminated for failing the SSA exam. Id. at 27,
33, 46.
¶3 The appellant thereafter filed this Board appeal of her termination and
requested a hearing. IAF, Tab 1. In a jurisdictional order, the administrative
3
judge informed the appellant that the Board may not have jurisdiction over her
appeal because she did not appear to be an “employee” with Board appeal rights
under 5 U.S.C. chapter 75. IAF, Tab 3. He apprised her of her jurisdictional
burden as an employee in the excepted service or as an individual serving a
Veterans Recruitment Appointment (VRA), and he ordered her to file evidence
and argument on the jurisdictional issue. Id. In response, the appellant alleged
that she was serving under a VRA and that the agency committed procedural
error, and she submitted a form documenting her military service. IAF, Tab 5.
The agency moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 6
at 4-10.
¶4 Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 7, Initial
Decision (ID) at 1, 4. Specifically, he found that the appellant did not meet the
definition of an employee with Board appeal rights because it was undisputed that
she had not completed 1 year of current continuous service in the same or a
similar position. ID at 3. He further found that, even tacking her prior service at
the Morrisville Post Office, her length of Federal service would be inadequate for
determining that she was an employee for jurisdictional purposes. Id. Moreover,
he found that she failed to make a nonfrivolous allegation that she was appointed
under VRA authority, and thus, he was precluded from reaching her procedural
error claim. Id.¶5 The appellant has filed a petition for review in which she asserts that the
union stated that the Board has jurisdiction over her appeal . Petition for Review
(PFR) File, Tab 1 at 3. In addition, she has submitted a personnel form showing
that, as of November 26, 2016, she held a position with the U.S. Postal Service.
Id. at 4. The agency has filed a response. PFR File, Tab 3.
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DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has failed to make a nonfrivolous allegation that she is an
employee with chapter 75 appeal rights or that she was appo inted under VRA
authority.
¶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). The appellant bears the
burden of establishing the Board’s jurisdiction by a preponderance of the
evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A). Generally, an appellant is entitled to a
jurisdictional hearing if she raises a nonfrivolous allegation of Board jurisdiction
over her appeal. Edwards v. Department of the Air Force, 120 M.S.P.R. 307, ¶ 6
(2013). A nonfrivolous allegation is an assertion that, if proven, could establish
the matter at issue. 5 C.F.R. § 1201.4(s).
¶7 Only an “employee,” as defined under 5 U.S.C. chapter 75, can appeal an
adverse action to the Board. Winns v. U.S. Postal Service, 124 M.S.P.R. 113, ¶ 8
(2017), aff’d sub nom. Williams v. Merit Systems Protection Board , 892 F.3d
1156 (Fed. Cir. 2018); see 5 U.S.C. §§ 7511(a)(1), 7513(d). Pursuant to 5 U.S.C.
§ 7511(a)(1)(B)(ii), an employee with the right to appeal to the Board includes a
preference-eligible employee of the U.S. Postal Service in the excepted service
who has completed “1 year of current continuous service in the same or similar
positions.” Winns, 124 M.S.P.R. 113, ¶ 8. When analyzing
section 7511(a)(1)(B), the Board defers to the regulation in 5 C.F.R. § 752.402,
which defines “current continuous employment” as “a period of employment or
service immediately preceding an adverse action without a break in Federal
civilian employment of a workday.” Id., ¶¶ 13, 16. Employees of the U.S. Postal
Service also may appeal adverse actions to the Board under 5 U.S.C. chapter 75 if
they are management or supervisory employees, or employees engaged in
personnel work in other than a purely nonconfidential clerical capacity, and have
completed 1 year of current continuous service in the same or similar positions .
39 U.S.C. § 1005(a)(4)(A)(ii); 5 U.S.C. § 7511(b)(8); see Winns, 124 M.S.P.R.
5113, ¶ 8 n.4. In addition, the Board has held that 38 U.S.C. § 4214(b)(1)(E),
which provides limited Board appeal rights to VRA appointees, covers the U.S.
Postal Service. Toomey v. U.S. Postal Service, 71 M.S.P.R. 10, 14-15 (1996). 2
¶8 For the following reasons, we agree with the administrative judge’s finding
that the appellant failed to nonfrivolously allege that she met the definition of an
employee with Board appeal rights or that she was appointed under VRA
authority. ID at 1, 3. In particular, the appellant has not alleged, and the record
does not reflect, that she held a supervisory or management position, or was
engaged in personnel work in other than a purely nonconfidential clerical
capacity. PFR File, Tab 1; IAF, Tab 1 at 5, Tab 5, Tab 6 at 43-46. Moreover, we
find that she has failed to make a nonfrivolous allegation that she completed
1 year of current continuous service in the same or similar positions under
5 U.S.C. § 7511(a)(1)(B). Specifically, the appellant has not disputed the
agency’s evidence showing that she was terminated on or around November 9,
2016, less than 3 months after her appointment on August 20, 2016. PFR File,
Tab 1; IAF, Tab 6 at 43, 46; see Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325,
329 (1994) (finding that an administrative judge may consider an agency’s
documentary submissions in determining whether an appellant has made a
nonfrivolous allegation of jurisdiction). In addition, we find that the appellant
may not tack her prior Federal service at the Morrisville Post Office because she
had a break in service of approximately 1 month. IAF, Tab 6 at 13, 43; see
5 C.F.R. § 752.402; see also Winns, 124 M.S.P.R. 113, ¶ 18 (overruling a line of
2
An appellant must receive explicit information on what is required to establish an
appealable jurisdictional issue. Burgess v. Merit Systems Protection Board, 758 F.2d
641, 643-44 (Fed. Cir. 1985). Here, the administrative judge acknowledged that he did
not provide the appellant with notice of her jurisdictional burden tailored to employe es
of the U.S. Postal Service. ID at 3 n.1. However, we find that she received appropriate
notice in the agency’s motion to dismiss and the initial decision, and thus, she had an
opportunity to meet her jurisdictional burden on review. ID at 2 -3; IAF, Tab 6 at 6-9;
see Milam v. Department of Agriculture, 99 M.S.P.R. 485, ¶ 10 (2005) (explaining that
an administrative judge’s failure to provide an appellant with proper Burgess notice can
be cured through the agency’s pleadings below or the initial decision) .
6
Board decisions, which found that an appellant may establish “current continuous
service” for purposes of section 7511(a)(1)(B) under a “continuing employment
contract” theory, despite a break in service of a workday) .
¶9 Further, we find that the appellant has failed to nonfrivolously allege that
she was appointed under 38 U.S.C. § 4214(b)(1), which authorizes VRAs. See
Miller v. Federal Deposit Insurance Corporation, 121 M.S.P.R. 88, ¶ 16 (2014)
(discussing the history and purpose of 38 U.S.C. § 4214), aff’d, 818 F.3d 1361(Fed. Cir. 2016). In particular, she has not rebutted the agency’s evidence
showing that she was appointed under 39 U.S.C. § 1001, the appointing authority
of the U.S. Postal Service. PFR File, Tab 1; IAF, Tab 5 at 5, Tab 6 at 12-13,
43-45; see Ferdon, 60 M.S.P.R. at 329.
¶10 The appellant’s sole argument on review is that a union told her that the
Board has jurisdiction over her appeal. PFR File, Tab 1 at 3. We find that this
conclusory statement fails to provide a reason to disturb the initial decision. With
her petition for review, the appellant has submitted a personnel form that was
processed on November 26, 2016, which shows that she received a contractual
increase effective the same date for her PSE SSA position at the Lakedale Station .
Id. at 4. The Board generally will not consider evidence submitted for the first
time on review absent a showing that it was unavailable before the record was
closed despite the party’s due diligence. See Avansino v. U.S. Postal Service,
3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d). Moreover, the Board
generally will not grant a petition for review based on new evidence absent a
showing that it is of sufficient weight to warrant an outcome d ifferent from that
of the initial decision. See Russo v. Veterans Administration, 3 M.S.P.R. 345,
349 (1980); 5 C.F.R. § 1201.115(d). Here, the appellant has not addressed why
she was unable to submit the personnel form below when it predates the
close-of-record date. PFR File, Tab 1; IAF, Tab 3 at 5. Further, we find that this
evidence, of which she does not explain the significance, is not of sufficient
weight to warrant an outcome different from that of the initial decision because it
7
merely shows that she had over 3 months of current continuous service in the
same or similar positions. PFR File, Tab 1. Because 5 U.S.C. § 7511(a)(1)(B)
requires 1 year of current continuous service, we find that the appellant’s
evidence does not constitute a nonfrivolous allegation of jurisdiction.
¶11 Accordingly, we affirm the administrative judge’s decision to dismiss this
appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS 3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
3
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
9
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their resp ective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employm ent
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
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(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
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, 10, and 11.
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with th e U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.