Michael Duceatt v. United States Postal Service ( 2023 )


Menu:
  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    MICHAEL EDWARD DUCEATT,                         DOCKET NUMBER
    Appellant,                          CH-0839-17-0179-I-1
    v.
    UNITED STATES POSTAL SERVICE,                   DATE: January 19, 2023
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Michael Edward Duceatt, Portage, Michigan, pro se.
    Deborah L. Lisy, Esquire, Chicago, Illinois, 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
    affirmed the final agency decision denying his request for corrective action under
    the Federal Erroneous Retirement Coverage Corrections Act (FERCCA) , denied
    his complaint under the Uniformed Services Employment and Reemployment
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    Rights Act of 1994 (USERRA), dismissed his complaint under the Veterans
    Employment Opportunities Act of 1998 (VEOA), and dismissed his challenge to
    his probationary termination. 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 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 af fected 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. Except as expressly MODIFIED by
    this Final Order to find that the appellant failed to establish his USERRA claim,
    we AFFIRM the initial decision, which is now the Board’s final decision.
    
    5 C.F.R. § 1201.113
    (b).
    ¶2         On petition for review, the appellant argues that the administrative judge
    erred in affirming the agency’s FERCCA denial, in denying his USERRA claim,
    and in dismissing his VEOA appeal as unexhausted.               He also reasserts his
    challenge to his 1985 probationary termination. 2 In addition, he appears to argue
    2
    The appellant also submits a motion requesting to reopen the record to “correct[] or
    modif[y]” the stipulations identified in the administrative judge’s Order and Summary
    of Status Conference and a second motion requesting reopening based on “recently
    rediscovered exculpatory evidence in the form of the agency stipulation.” Petition for
    Review File, Tabs 7, 11; Initial Appeal File (IAF), Tab 21. The appellant does not
    specifically identify which of the stipulations he wishes to correct or identify how they
    were erroneous. To the extent he is challenging additional stipulations that he did not
    object to below, the Board will not consider this argument on review. See Brown v.
    Department of the Army, 
    96 M.S.P.R. 232
    , ¶ 6 (2004) (noting that the Board will not
    consider objections to an administrative judge’s summary that the party failed to
    3
    for the first time that the agency’s decision reducing his veterans’ preference
    eligibility from 10 points to 5 points also constituted discrimination in violation
    of USERRA.       Petition for Review (PFR) File, Tab 2 at 16-17; Tab 10 at 15.
    Although the Board generally does not consider arguments raised for the first
    time on review, Banks v. Department of the Air Force, 
    4 M.S.P.R. 268
    , 271
    (1980), the appellant may have tried to raise this argument below, and the
    administrative judge did not address it, Initial Appeal File (IAF), Tab 23.
    Because the Board construes claims under USERRA broadly and liberally, and
    because the appellant is pro se, in an overabundance of caution we have
    considered any potential argument that the appellant’s preference point reduction
    also constituted a USERRA violation.          See Gossage v. Department of Labor,
    
    118 M.S.P.R. 455
    , ¶ 10 (2012).
    ¶3         As the administrative judge noted in addressing the appellant’s VEOA
    claim, the agency reduced the appellant’s veterans’ preference status based on the
    rating documentation it had available at the time it made the determination. IAF,
    Tab 28, Initial Decision at 15.         Specifically, the agency asserted, and the
    appellant does not dispute, that in October 2013, prior to the preference status
    change, it informed the appellant that it did not have information on file
    concerning his disability rating and requested that he provide an updated cop y of
    preserve below). Regarding the stipulation the appellant objected to below —namely,
    his request to modify stipulation 18 to reflect that h e had 6 years, 4 months, and 18 days
    of “Frozen” Civil Service Retirement System (CSRS) service prior to his Federal
    Employees Retirement System election—because we ultimately agree with the
    administrative judge’s determination that the appellant’s militar y service was not
    creditable civilian service for the purpose of determining CSRS retirement eligibility,
    the appellant’s request is denied. IAF, Tabs 21-22; see Tizo v. Office of Personnel
    Management, 
    325 F.3d 1378
    , 1380 (Fed. Cir. 2003) (holding, in determining whether
    military service qualified as covered service for the purpose of establishing CSRS
    eligibility, that under the 1948 retirement law, “civil servants were required to meet the
    five-year service requirement ‘exclusive of’ military service.”); Villanueva v. Office of
    Personnel Management, 
    980 F.2d 1431
    , 1432-33 (Fed. Cir. 1992) (finding the
    “contention that . . . military and civilian service should be combined is . . . expressly
    precluded by the [Civil Service Retirement Act of 1948].”).
    4
    the Department of Veterans Affairs’ disability rating decision letter. IAF, Tab 8
    at 67. The appellant failed to provide the rating letter, so the agency eventually
    changed his rating status from code “3” (10-point eligible) to code “2” (5‑point
    eligible) and issued an updated Postal Service Form 50 reflecting that change. Id.
    at 65-66.   The appellant has not challenged this characterization on review.
    Accordingly, we conclude that the appellant has failed to adduce any evidence
    that the agency’s preference point reduction was based on any improper
    motivation and consequently, did not meet his burden of proving discrimination
    in violation of USERRA. 3 See Sheehan v. Department of the Navy, 
    240 F.3d 1009
    , 1013-15 (Fed. Cir. 2001) (requiring an individual to initially show by
    preponderant evidence that his military status was at least a motivating or
    substantial factor in the agency action, upon which the agency must prove by
    preponderant evidence that the action would have been taken for a valid reason
    despite the protected status).
    ¶4         Regarding the appellant’s argument, raised for the first time on review, that
    the agency’s decision denying his request for corrective action under FERCCA
    was “three years late,” PFR File, Tab 2 at 4-5, the appellant does not explain how
    this delay entitles him to corrective action under FERCCA. The appellant also
    makes a number of arguments for the first time in his reply to the agency’s
    response to his petition for review, including that the agency engaged in unlawful
    discrimination, whistleblower retaliation, and reprisal for union activity and for
    3
    After the record closed on review, the appellant submitted a motion requesting leave
    to file a Department of Veterans Affairs disability rating letter dated October 20, 2020.
    See PFR File, Tab 11 at 6. Because the agency based its rating determination on the
    information it had available at the time, and because we ultimately conclude that the
    agency’s preference point reduction was not based on any improper motive, the
    October 20, 2020 rating letter is immaterial, and we deny the appellant’s request. See
    
    5 C.F.R. § 1201.114
    (k) (noting that the Board may accept additional pleadings, other
    than those provided for in 
    5 C.F.R. § 1201.114
    (a), only if the evidence is new and
    material and the party submitting it shows that it was not available prior to the close of
    the record on review); 
    5 C.F.R. § 1201.115
    (d).
    5
    the filing of a prior Board appeal.      He also asserts that the agency created a
    hostile work environment and contributed to his loss of Office of Workers’
    Compensation benefits.      PFR File, Tab 10 at 8-9, 13, 17-18.           The Board’s
    regulations make clear that a reply is limited to the issues raised by another party
    in the response to the petition for review, and the reply may not raise new
    allegations of error. 
    5 C.F.R. § 1201.114
    (a)(4); see Boston v. Department of the
    Army, 
    122 M.S.P.R. 577
    , ¶ 5 n.3 (2015) (declining to consider new arguments
    that were first raised in a reply brief). Therefore, we have not considered these
    arguments, raised for the first time in the appellant’s reply.
    ¶5         Accordingly, we affirm the initial decision.
    NOTICE OF APPEAL RIGHTS 4
    The initial decision, as supplemented by this Final Order, c onstitutes the
    Board’s final decision in this matter.      
    5 C.F.R. § 1201.113
    .      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.
    4
    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 ma tter.
    6
    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
    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 partic ular
    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
    7
    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
    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 respective
    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 Employment
    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:
    8
    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
    (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 ch allenge 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. 5   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).
    5
    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 the 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
    .
    9
    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.
    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 war rants 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.