Ronald Jordan v. United States Postal Service ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RONALD M. JORDAN, JR., DOCKET NUMBER
Appellant, CB-7121-22-0005-V-1
v.
UNITED STATES POSTAL SERVICE, DATE: April 15, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Ronald M. Jordan, Jr., Joliet, Illinois, pro se.
Bobbi K. Mihal, Esquire, St. Louis, Missouri, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 Pursuant to 5 U.S.C. § 7121(d), the appellant requests review of
an arbitrator’s decision that denied his grievance challenging his removal for
failure to maintain a regular schedule. For the reasons set forth below,
we DISMISS the appellant’s request for lack of jurisdiction.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 The appellant was a Postal Support Employee Sales and Distribution
Associate who was removed from the Federal service effective September 11,
2018, for failure to maintain a regular schedule. Request for Review (RFR) File,
Tab 5 at 22-24. The appellant filed a grievance challenging his removal, and
after holding a hearing, the arbitrator issued a decision on November 12, 2021,
denying the grievance and finding that the agency had just cause to remove him.
RFR File, Tab 1 at 6.
¶3 The appellant submitted an appeal form to the Board’s Central Regional
Office, attaching a copy of the arbitrator’s decision, which was forwarded to the
Office of the Clerk of the Board. RFR File, Tab 1. The Office of the Clerk then
issued an acknowledgment order, setting forth the elements of a request for
review, explaining the jurisdictional requirements of a request for review, and
affording the appellant an opportunity to respond. RFR File, Tab 2 at 1-3. The
appellant did not respond to the order; however, the agency filed a response in
opposition to the appellant’s request for review . RFR File, Tab 5 at 4-12.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 The Board typically has jurisdiction to review an arbitration decision under
5 U.S.C. § 7121(d) when the subject matter of the grievance is one over which the
Board has jurisdiction, the appellant has alleged discrimination as stated in
5 U.S.C. § 2302(b)(1) in connection with the underlying action, and a final
decision has been issued. Anderson v. U.S. Postal Service, 109 M.S.P.R. 558, ¶ 4
(2008). However, a Postal Service employee does not have the right of Board
review of an arbitration decision because 5 U.S.C. § 7121 does not apply to the
Postal Service. Id. We therefore dismiss the appellant’s request for review of the
arbitration decision for lack of jurisdiction. Id.¶5 However, we acknowledge that the Board may have jurisdiction over the
appellant’s removal because a Postal Service employee can file a grievance and a
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de novo Board appeal from the same action. Id., ¶ 5. Nevertheless, it appears
that the appellant was seeking to request the Board’s review of the arbitrator’s
decision, as he attached a copy of the arbitrator’s decision to his submission
without further explanation. RFR File, Tab 1. Furthermore, there is no evidence
in the record that indicates that the appellant was attempting to file a Board
appeal of his removal. For example, the appellant did not object to the Central
Regional Office forwarding his submission to the Clerk of the Board or the
Clerk’s Acknowledgment Order treating his submission as a request for review of
the arbitrator’s decision. RFR File, Tabs 1-2. In fact, a footnote to the
Acknowledgment Order indicates that the Clerk of the Board confirmed through
an email exchange the appellant’s intent that his submission be processed as a
request for review of the arbitrator’s decision. Id., Tab 2 at 1 n*. Accordingly,
because it does not appear that the appellant wished to file a Board appeal of his
removal, we do not forward his submission to the regional office. However, to
the extent that the appellant wishes to file a Board appeal of his removal, he may
do so with the Central Regional Office. 2
NOTICE OF APPEAL RIGHTS
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 ri ghts, 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
2
We make no findings on jurisdiction or timeliness regarding an appeal of the
appellant’s removal.
4
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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(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
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:
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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. 3 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).
3
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.
7
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 fou nd 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.