William Cunningham v. Department of Labor ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM TYRONE CUNNINGHAM, DOCKET NUMBER
Appellant, DC-315H-17-0167-I-1
v.
DEPARTMENT OF LABOR, DATE: July 27, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
William Tyrone Cunningham, Fort Washington, Maryland, pro se.
Elizabeth L. Beason and Katrina Liu, 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 his appeal of his probationary termination 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;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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).
¶2 In his petition for review, the appellant argues that he thought he was being
reinstated and, per his rights as a former Postal Service employee, he was not
required to serve a probationary period and/or the agency never told him he
would be required to do so. Petition for Review (PFR) File, Tab 1 at 7, 11; Initial
Appeal File (IAF), Tab 30, 33-34. As a general matter, a person who is “given a
career or career-conditional appointment” must complete a 1-year probationary
period. See 5 C.F.R. § 315.801(a). Here, the administrative judge correctly
found that the appellant’s prior Federal service did not accord him the status of an
“employee” under 5 U.S.C. § 7511(a)(1)(A). That statute provides that, to
qualify as an “employee” with appeal rights under 5 U.S.C. chapter 75, a
competitive-service employee must show that he either was not serving a
probationary period or, with an exception not relevant here, had completed 1 year
of current continuous service under an appointment other than a temporary one
limited to a year or less. The administrative judge properly concluded that the
appellant failed to show that his prior service could be counted toward the
probationary period because the prior service would have to be: (1) rendered
immediately preceding the probationary period; (2) performed in the same
3
agency; (3) performed in the same line of work; and (4) completed with no more
than one break in service of less than 30 days. 5 C.F.R. § 315.802(b); see
Hurston v. Department of the Army, 113 M.S.P.R. 34, ¶ 9 (2010); see also
Vannoy v. Department of the Air Force, 73 F.3d 380 (Fed. Cir. 1995) (per
curiam). 2
¶3 The administrative judge determined that the appellant in this case was
employed by the U.S. Postal Service from 1993 to 2000. IAF, Tab 41, Initial
Decision (ID) at 4; IAF, Tab 21 at 112-13. Under 5 C.F.R. § 315.802(b), though,
such prior service could not be tacked on toward completing a probationary
period in any agency other than in the same agency (the U.S. Postal Service). See
Baggan v. Department of State, 109 M.S.P.R. 572, ¶ 7 (2008). In addition, the
administrative judge correctly found that the appellant was on notice that he was
subject to a probationary period when he was appointed. ID at 4 -5. The agency’s
vacancy announcement clearly stated that selectees would be required to serve a
1-year probationary term of employment if they were not already tenured Federal
employees. IAF, Tab 21 at 99. The administrative judge also properly found
that, even if the agency failed to notify the appellant that, if selected, he would
need to serve a probationary term of employment, that alleged failure would still
not confer appeal rights on the appellant. ID at 5 (citing Cunningham v.
Department of the Army, 119 M.S.P.R. 147, ¶ 5 (2013); cf. Williams v. Merit
Systems Protection Board, 892 F.3d 1156, 1162-63 (Fed. Cir. 2018) (recognizing
that an agency’s failure to advise an employee that he would lose his Board
appeal rights if he voluntarily transferred to a different position did not create
appeal rights), cert. denied, 139 S. Ct. 1472 (2019). Further, as to the appellant’s
argument that he thought he was being reinstated, the Board lacks jurisdiction
over an agency’s decision not to reinstate an employee pursuant to 5 C.F.R.
2
The Board may rely on unpublished decisions of the U.S. Court of Appeals for the
Federal Circuit if, as here, it finds the reasoning persuasive. Vores v. Department of the
Army, 109 M.S.P.R. 191, ¶ 21 (2008), aff’d, 324 F. App’x 883 (Fed. Cir. 2009).
4
§ 315.401. See Hicks v. Department of the Navy, 33 M.S.P.R. 511, 512-13 (1987)
(holding that the Board lacks jurisdiction over an agency’s alleged denial of an
employee’s reinstatement rights).
¶4 The appellant also argues for the first time that he was terminated for
partisan political and/or preappointment reasons. PFR File, Tab 1. The Board
generally will not consider an argument raised for the first time in a petition for
review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence. Banks v. Department of
the Air Force, 4 M.S.P.R. 268, 271 (1980); 5 C.F.R. § 1201.115(d). The
appellant has not made such a sufficient showing here. The appellant also
submits two emails and argues the documents were unavailable due to being on a
USB drive he had given to his daughter; however, the information itself was not
new and will not be considered. PFR File, Tab 1 at 14-15; see 5 C.F.R.
§ 1201.115(d); see also Grassell v. Department of Transportation, 40 M.S.P.R.
554, 564 (1989) (holding that the information contained in the documents, not
just the documents themselves, must have been unavailable despite due diligence
when the record closed). Regardless, even if we were to consider the appellant’s
arguments or documents on review, it would not provide the Board with
jurisdiction.
¶5 The appellant asserts that, because he was considering becoming a union
shop steward, the agency discriminated against him for partisan political reasons.
PFR File, Tab 1 at 2, 5, 8. In furtherance of this argument, he submits a narrative
description of his interactions with the union and his supervisor and emails with
the union regarding his core duty hours at the agency. Id. at 14-18. However,
even if we were to consider the appellant’s argument that his termination was due
to his affiliation with the union, it would not provide the Board with jurisdiction.
See Mastriano v. Federal Aviation Administration, 714 F.2d 1152, 1156 (holding
that allegations of discrimination based on union affiliation do not state a cause
of action within the Board’s jurisdiction under 5 C.F.R. § 315.806(b)).
5
¶6 The appellant also argues that he was terminated for a preappointment
reason based on the agency’s failure to hire him under the vacancy announcement
for applicants under the Veterans Employment Opportunity Act. PFR File, Tab 1
at 5; IAF, Tab 13 at 4. However, the appellant’s arguments do not suggest that
the agency terminated him because of the hiring appointment authority. Rather, it
is undisputed that the appellant was terminated for attendance issues and
misrepresentations made about his work hours as reported on his daily timesheets.
IAF, Tabs 9-12, Tab 21 at 6, 21-92, Tabs 23-25. Therefore, we find that the
appellant has not raised a nonfrivolous allegation that he was terminated for a
preappointment reason.
¶7 Finally, the appellant argues that the agency willfully obstructed his
employment by not allowing him to change his shift, not allowing him to come
into work early, and not giving him any verbal or written warnings before his
termination, as required by the collective bargaining agreement. PFR File, Tab 1
at 8. However, the Board cannot review these claims as they do not relate to the
issue of the Board’s jurisdiction over an appeal by a probationary employee.
Mastriano, 714 F.2d at 1156. Moreover, these claims do not provide an
independent source of Board jurisdiction absent an otherwise appealable action.
Penna v. U.S. Postal Service, 118 M.S.P.R. 355, ¶ 13 (2012) (finding that absent
an otherwise appealable action, the Board lacks jurisdiction over a claim of
harmful error, discrimination, or other prohibited personnel practice); Burnett v.
U.S. Postal Service, 104 M.S.P.R. 308, ¶ 15 (2006) (making the same finding in
Penna as to a due process claim).
¶8 Accordingly, we find the administrative judge correctly dismissed the
appeal for lack of jurisdiction.
6
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 Mer it
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
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:
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.
7
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
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
8
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:
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
9
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 Cir cuit 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.
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.
4
The original statutory provision that provided for judicial review o f 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 revie w 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.
10
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.