Angela Conaway v. Department of Commerce ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANGELA R. CONAWAY, DOCKET NUMBER
Appellant, CH-0752-16-0165-I-1
v.
DEPARTMENT OF COMMERCE, DATE: September 22, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Angela R. Conaway, Piketon, Ohio, pro se.
Frances C. Silva, Esquire, Washington, D.C., 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 appeal challenging her placement on an intermittent work status for
lack of jurisdiction. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 In July 2012, the agency appointed the appellant to a part-time position as a
GS-6 Field Supervisor with the agency’s Bureau of the Census. Initial Appeal
File (IAF), Tab 6, Subtab 4v at 5. According to the position description, a Field
Supervisor works a “mixed-tour work schedule,” which “provides for periods of
full-time, part-time, and/or intermittent work to accommodate fluctuating
workloads.” Id. at 6. By notice dated April 4, 2014, the agency relieved the
appellant of her duties and placed her in an intermittent work status pending an
inquiry into allegations that she falsified survey data. IAF, Tab 6, Subtab 4o.
The notice informed the appellant that, while she was on intermittent work status,
she would be paid administrative leave for 2 hours per pay period, which was her
minimum tour of duty. Id. The appellant remained in intermittent status,
receiving 2 hours of paid administrative leave per pay period, until the agency
removed her on September 5, 2014. Id., Subtab 4i; IAF, Tab 14.
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¶3 In December 2015, the appellant filed a Board appeal challenging an
alleged suspension of more than 14 days. 2 IAF, Tab 1 at 1-3. The administrative
judge construed the appellant’s filing as an appeal of her placement on
intermittent work status and, in an order on jurisdiction, informed her that the
Board lacks jurisdiction over an intermittent employee’s period of unemployment
if the lack of work is consistent with the terms of her employment . IAF, Tab 11
at 3-4. He further informed her, however, that the Board may have jurisdiction if
her placement on intermittent work status was not in accordance with the terms
and conditions of her employment. Id. at 4. Thus, he ordered her to file evidence
and argument amounting to a nonfrivolous allegation that she was placed in a
nonduty, nonpay status and that such placement was not in accordance with the
terms and conditions of her employment. Id. Without holding the requested
hearing, the administrative judge issued an initial decision finding that the
appellant failed to nonfrivolously allege that her placement on intermittent work
status constituted a constructive suspension or a reduction in pay over which the
Board has jurisdiction. IAF, Tab 16, Initial Decision (ID). Accordingly, he
dismissed the appeal for lack of jurisdiction. ID at 4.
2
Before filing the instant Board appeal, the appellant filed an equal employment
opportunity (EEO) complaint challenging her placement on an intermittent work
schedule and her removal. IAF, Tab 1 at 9-11. In November 2015, the appellant
received the final agency decision (FAD) finding no discrimination in connection with
her removal. IAF, Tab 1 at 8-32, Tab 4. Although the FAD decided only the
appellant’s removal complaint, she filed a Board appeal challenging both her removal,
which the administrative judge docketed separately as MSPB Docket No. CH-0752-16-
0166-I-1, and a suspension of more than 14 days, which the administrative judge
interpreted as an appeal of her placement on intermittent work status and is the subject
of the current appeal. IAF, Tab 1 at 1-3, Tab 11. The record reflects that the appellant
requested a hearing before the Equal Employment Opportunity Commission in
connection with her placement on intermittent work status, IAF, Tab 1 at 9-10, but there
is no indication in the record that a hearing has been held or th at a decision has been
issued. In light of our finding that the Board lacks jurisdiction over the appellant’s
placement on intermittent work status, however, we need not address the impact on this
appeal of the appellant’s unresolved EEO appeal of the same agency action.
4
¶4 The appellant has filed a petition for review of the initial decision, and the
agency has responded in opposition. Petition for Review (PFR) File, Tabs 1, 3.
¶5 The Board does not have jurisdiction to address all matters that are alleged
to be incorrect or unfair. Miller v. Department of Homeland Security,
111 M.S.P.R. 325, ¶ 14 (2009), aff’d, 361 F. App’x 134 (Fed. Cir. 2010). Rather,
the Board adjudicates only those actions for which a right of appeal has been
granted by law, rule, or regulation. Maddox v. Merit Systems Protection Board,
759 F.2d 9, 10 (Fed. Cir. 1985). Generally, the placement of an intermittent
employee in a nonduty, nonpay status in accordance with the conditions of her
employment is not an adverse action appealable to the Board. Drake v.
Department of the Army, 77 M.S.P.R. 424, 426 (1998); 5 C.F.R.§ 752.401(b)(14).
If, however, the agency’s action is not in accordance with the terms and
conditions of the appellant’s employment, then her placement in a nonduty,
nonpay status for more than 14 days could constitute an appealable constructive
suspension. See Drake, 77 M.S.P.R. at 426.
¶6 As discussed above, the appellant held a part-time position on a mixed-tour
work schedule with a minimum tour of duty of 2 hours per pay period. IAF,
Tab 6, Subtab 4v at 5. Additionally, she signed an employee agreement
specifically indicating that her mixed-tour work schedule may include “periods of
full-time, part-time, and intermittent work, as well as periods in a nonpay status,
depending on workload.” IAF, Tab 15 at 5. Thus, the agency did not violate the
terms and conditions of the appellant’s employment when it placed her in an
intermittent work status and provided her paid administrative leave for 2 hours
per pay period. Accordingly, we agree with the administrative judge’s finding
that the Board lacks jurisdiction over the appellant’s appeal as an alleged
constructive suspension of more than 14 days.
¶7 In addition, insofar as the appellant has alleged that the agency subjected
her to a reduction in pay, we agree with the administrative judge’s finding that a
loss in total salary due to a reduction in work hours is not an appealable adverse
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action. ID at 4; see Wood v. Merit Systems Protection Board, 938 F.2d 1280,
1282 (Fed. Cir. 1991) (finding that the employee did not suffer a reduction in pay
within the meaning of 5 U.S.C. § 7512(4) when the agency reduced her number of
hours and, therefore, her annual salary, but did not chang e her rate of pay).
¶8 On review, the appellant challenges the merits of her removal, argues that
the agency committed a prohibited personnel practice by restricting her hours and
suspending her, alleges that the agency violated her right to minimum due pro cess
when it suspended her, and challenges the agency’s investigation into her alleged
misconduct. PFR File, Tab 1. None of these allegations pertain to the dispositive
jurisdictional issue before us, however, and provide no basis to disturb the initial
decision. See Sapla v. Department of the Navy, 118 M.S.P.R. 551, ¶ 7 (2012)
(finding that an appellant’s arguments on review regarding the merits of an
agency action were not relevant to whether the Board had jurisdiction over an
appeal); Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980) (finding that
prohibited personnel practices are not an independent source of Board jurisdiction
and that, absent an otherwise appealable action, the Board lacks jurisdiction to
consider an appellant’s affirmative defenses), aff’d, 681 F.2d 867, 871-73 (D.C.
Cir. 1982).
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
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.
6
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
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
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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
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
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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
(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
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 the U.S. Court of Appeal s
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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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.
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.