Roy Nellikkattil Koshy v. United States Postal Service ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROY NELLIKKATTIL KOSHY, DOCKET NUMBER
Appellant, DA-3443-21-0311-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: May 5, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Roy Nellikkattil Koshy, Garland, Texas, pro se.
Bobbi Mihal, Esquire, Dallas, Texas, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. On petition for review, the appellant
argues the following: (1) the Board has chapter 75 jurisdiction over his appeal;
(2) the agency discriminated against him; (3) he suffered a compensable injury;
and (4) his appeal was timely filed. Petition for Review (PFR) File, Tab 1
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
at 6-12. 2 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 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 Effective December 7, 2019, the agency appointed the appellant to the
position of Rural Carrier. Initial Appeal File (IAF), Tab 7 at 17. Thereafter, the
appellant applied to and was selected for the position of Postal Support Employee
Sales and Services Distribution Associate (PSE SSDA). Id. at 24-28; IAF, Tab 1
at 14, Tab 6 at 4. On September 3, 2020, an agency official stated via email that
the appellant would need a “mandatory” 5-day break in service between both
positions and that, accordingly, his last day in his Rural Carrier position would be
2
With his petition for review, the appellant provides an annotated computer printout of
the status of job applications that he has submitted for various positions with the
agency. PFR File, Tab 1 at 13. This document, however, was part of the record before
the administrative judge; thus, it does not constitute new evidence. Initial Appeal File
(IAF), Tab 9 at 13; see Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980)
(explaining that 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 different
from that of the initial decision).
3
September 6, 2020. IAF, Tab 1 at 13, Tab 6 at 4. Subsequently, the agency
processed a Postal Form 50 reflecting that the appellant resigned from his Rural
Carrier position effective September 6, 2020. IAF, Tab 7 at 18. The record,
however, does not contain a resignation letter from the appellant. In fact, the
appellant averred below that he did not resign from this position, consistent with
advice in the PSE SSDA job offer letter notifying him that he should not resign
from his current position. IAF, Tab 1 at 32.
¶3 Six days later, on September 12, 2020, the appellant received a temporary
appointment to the PSE SSDA position. IAF, Tab 7 at 19. By letter dated
September 17, 2020, the agency advised the appellant that, due to eligibility
reasons, his PSE SSDA offer was being rescinded. IAF, Tab 1 at 20. The
appellant alleged below that he was notified by the agency’s Human Resources
personnel that the reason for his separation was that he had not been a resident of
the U.S. for 5 years preceding a National Agency Check with Inquiries (NACI)
background investigation. Id. at 21. The record reflects that the appellant had
been a permanent resident of the U.S. since December 29, 2015 , and therefore had
been residing lawfully in the U.S. for approximately 4 years and 9 months prior to
that time. Id. at 33. Moreover, the record does not contain any official U.S.
Postal Service, Office of Personnel Management, or Department of Defense rules
or regulations requiring a 5-year residency requirement to conduct a NACI check,
nor does it demonstrate why the 5-year waiting period did not preclude the
appellant from obtaining a background check for his original Rural Carrier
position.
¶4 According to the appellant, he was instructed by the agency to return to
work as a Rural Carrier on September 17, 2020, and he continued to perform in
that position until September 26, 2020. Id. at 31. The appellant averred that, on
September 28, 2020, his supervisor advised him that he had been removed from
4
the agency’s payroll system, despite lacking any notice of the same. 3 Id. at 31.
The agency officially terminated the appellant from the PSE SSDA position on
December 18, 2020. IAF, Tab 7 at 20.
¶5 On June 21, 2021, approximately 6 months after being terminated from the
PSE SSDA position, the appellant filed a Board appeal. IAF, Tab 1. On his
initial appeal form, the appellant indicated that he was challenging both an
involuntary resignation and the agency’s failure to restore/reemploy/reinstate
him. Id. at 3.
¶6 The agency filed a motion to dismiss the appeal for lack of jurisdiction
and/or on the basis of timeliness. IAF, Tab 7 at 4-15. Thereafter, the
administrative judge issued an order to show cause explaining the circumstances
under which the Board has jurisdiction over the removal of a U.S. Postal Service
employee and ordering the appellant to submit evidence and argument regarding
jurisdiction. IAF, Tab 8 at 2-4. The appellant filed a response contending that
the Board had chapter 75 jurisdiction over his appeal and that the agency had
engaged in discrimination and prohibited personnel practices. IAF, Tab 9 at 5 -8.
He also averred that he had completed his probationary period and reitera ted that
the agency had mandated the break in service between his two positions with the
agency, i.e., Rural Carrier and PSE SSDA. Id. at 6-8, 15.
¶7 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the matter for lack of jurisdiction. IAF,
Tab 10, Initial Decision (ID) at 2, 5-6. In so doing, she reasoned that the
appellant had seemingly argued that the agency had forced him to resign and then
failed to reinstate him. ID at 4. She found, however, that the appellant had failed
to allege that he was a preference eligible, a management or supervisory
employee, or an employee engaged in personnel work in other than a purely
3
It appears that the agency could have returned the appellant to his original Rural
Carrier position, but it did not do so. The appellant asserted below that the agency
instead appointed two young individuals as Rural Carriers. IAF, Tab 1 at 5.
5
nonconfidential clerical capacity and, therefore, the Board lacked jurisdiction
over the matter. ID at 5. She also found that, to the extent the appellant had
raised claims of discrimination, prohibited personnel practices, or retaliation, his
claims did not confer jurisdiction on the Board insofar as such claims are not an
independent basis of Board jurisdiction. Id. The administrative judge also
implicitly concluded that the Board lacks jurisdiction over the matter as a
restoration appeal, explaining that “[a]t no time during the pendency of [the]
appeal ha[d] the appellant made mention of a compensable injury.” ID at 1 n.1.
The administrative judge explained that, given her conclusion regarding
jurisdiction, she did not need to address the timeliness of the appeal. ID at 2 n.2.
¶8 The appellant has filed a petition for review, and the agency has filed a
response. PFR File, Tabs 1, 3. In his petition, the appellant argues the following:
(1) the Board has chapter 75 jurisdiction over his appeal; (2) the agency
discriminated against him; (3) he has suffered “significant ha rdships and mental
trauma due to the unlawful decisions” of agency human resources personnel; and
(4) his appeal was timely filed. PFR File, Tab 1 at 6 -12.
DISCUSSION OF ARGUMENTS ON REVIEW
¶9 In order for a Postal Service employee to appeal an adverse actio n under
chapter 75, the employee must (1) be a preference eligible, a management or
supervisory employee, or an employee engaged in personnel work in other than a
purely nonconfidential clerical capacity; and (2) have completed 1 year of current
continuous service in the same or similar positions. See 5 U.S.C.
§ 7511(a)(1)(B)(ii); 39 U.S.C. § 1005(a)(4)(A)(ii); Clark v. U.S. Postal Service,
118 M.S.P.R. 527, ¶ 7 (2012). Here, we discern no basis to disturb the
administrative judge’s conclusion that the appellant failed t o make a nonfrivolous
allegation that he is a preference eligible, a management or supervisory
employee, or an employee engaged in personnel work in other than a purely
6
nonconfidential clerical capacity. ID at 5. 4 Thus, we agree that the Board lacks
chapter 75 jurisdiction over the matter. 5 Similarly, we discern no basis to disturb
the administrative judge’s conclusion that, absent an otherwise appealable action,
the Board lacks jurisdiction over the appellant’s claims of discrimination. Id.; see
Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980) (explaining that
prohibited personnel practices under 5 U.S.C. § 2302(b) are not an independent
source of Board jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
¶10 The appellant seemingly argues that he suffered a compensable injury, i.e.,
“significant hardships and mental trauma due to the unlawful decisions” of
agency human resources personnel. PFR File, Tab 1 at 11-12. Federal
employees, including Postal Service employees, who suffer on-the-job
compensable injuries enjoy certain rights to be restored to their pr evious or
comparable positions. See Tat v. U.S. Postal Service, 109 M.S.P.R. 562, ¶ 9
(2008); 5 C.F.R. part 353. To be entitled to any such rights, an employee must
have been “separated or furloughed from an appointment without time
limitation . . . as a result of a compensable injury.” 5 C.F.R. § 353.103(b). Here,
however, the appellant’s vague references to hardships and mental trauma do not
confer jurisdiction on the Board or otherwise warrant a different outcome.
Indeed, the appellant does not discernably allege that he suffered an on-the-job
injury; rather, he ostensibly alleges that he experienced mental hardship and
4
Indeed, all of the Postal Service Form 50s in the record contained a veterans’
preference code of “1,” indicating that the appellant is not a preference eligible. E.g.,
IAF, Tab 1 at 7; see Hay v. U.S. Postal Service, 103 M.S.P.R. 167, ¶¶ 3-4 (2006)
(discussing veterans’ preference codes on Postal Service Form 50s).
5
The agency’s actions in this case present almost a classic case of the provision of
misinformation that unfortunately led to the appellant’s involuntary separation. Even if
the Board were to find that the appellant established that his resignation was
involuntary, however, the Board would lack jurisdiction over his appeal under
chapter 75. See Paige v. U.S. Postal Service, 106 M.S.P.R. 299, ¶ 11 (2007) (clarifying
that, to the extent the appellant raised an involuntary resignation claim, it is dismissed
as an appeal outside the Board’s jurisdiction because the appellant failed to show that
he was an agency employee with chapter 75 appeal rights).
7
trauma when agency human resources personnel removed him from his position.
Thus, we agree that the Board lacks jurisdiction over the matter.
¶11 Accordingly, while we sympathize with the appellant’s situation and,
specifically, with his assertion that he never intended to resign from his Rural
Carrier position, we must affirm the initial decision given the Board’s lack of
jurisdiction over this matter. 6
NOTICE OF APPEAL RIGHTS 7
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 revi ew your case, you
should contact that forum for more information.
6
Because the appellant’s petition does not meet the Board’s crite ria for review, we do
not reach the issue of the timeliness of the appeal. Nevertheless, we note that the
agency never provided the appellant with notice of any appeal rights.
7
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
(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.
(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
9
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, co sts, 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:
10
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. 8 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
8
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.
11
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.