Roxanne L. Dunn v. Department of the Army ( 2015 )


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  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    ROXANNE L. DUNN,                                DOCKET NUMBER
    Appellant,                         CH-0752-14-0475-I-1
    v.
    DEPARTMENT OF THE ARMY,                         DATE: August 17, 2015
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Roxanne L. Dunn, Clinton Twp, Michigan, pro se.
    Tiffany J. Hall, Warren, Michigan, for the agency.
    BEFORE
    Susan Tsui Grundmann, Chairman
    Mark A. Robbins, Member
    FINAL ORDER
    ¶1         The appellant has filed a petition for review of the initial decision, which
    dismissed her appeal of an alleged reduction in pay or grade. Generally, we grant
    petitions such as this one only when:       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
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 facts of the case; the 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. See 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, and based on the following
    points and authorities, 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         The appellant filed an appeal requesting that the Board review her reduction
    in grade and pay, effective January 13, 2013. Initial Appeal File (IAF), Tab 1. 2
    She is a Contract Specialist, GS-1102-12, with the Army Contracting Command
    (ACC) in Warren, Michigan. IAF, Tab 16 at 63. The material facts underlying
    the appeal are not in dispute. The appellant was a Contract Specialist, GS-1102-
    13, Step 4, with the ACC – National Capital Region in Alexandria, Virginia. 
    Id. In July
    2013, her position was set to be relocated to New Jersey as part of the
    Base Realignment and Closure (BRAC) process. IAF, Tab 24 at 5. On April 24,
    2012, she requested compassionate reassignment to a location closer to Indiana so
    she could care for her mother who had been disabled by a stroke. Id.; see IAF,
    Tab 16 at 18. In October 2012, she applied through USA Jobs for a Contract
    Specialist, GS-1102-12, position with the ACC in Warren. IAF, Tab 24 at 6. The
    2
    The administrative judge properly declined to decide whether the appeal had been
    timely filed. See Ford v. U.S. Postal Service, 82 M.S.P.R. 327, ¶ 14 (1999) (if an
    administrative judge finds that the Board lacks jurisdiction over an appeal, he may
    dismiss it on that basis without addressing the issue of its timeliness). The appellant’s
    initial filing and her response to the timeliness order indicate that she had filed at least
    two formal equal employment opportunity complaints with the agency, one of which
    was settled by reassigning her to another GS-12 Contract Specialist position in Warren
    as of January 12, 2014. IAF, Tab 1 at 4-5, Tab 5 at 4-6; see IAF, Tab 9 at 8-9, 11.
    3
    agency offered her a Contract Specialist, GS-1102-12, position that had been
    advertised under a different job announcement. 
    Id. at 6,
    22-26.        The position
    description and pay grade were the same for both jobs, but the position that the
    appellant was offered allowed for the payment of permanent change of station
    (PCS) expenses. 
    Id. at 6.
    She accepted the position in Warren with PCS costs,
    effective January 13, 2013. 
    Id. ¶3 On
    appeal, the appellant alleged that her transfer was involuntary, in part
    because she was hired for a position other than the one for which she had applied,
    and she claimed that the agency discriminated against her in 2012, based on her
    age and retaliated against her for her protected activity. IAF, Tab 5 at 6, Tab 10
    at 3, Tab 25 at 3. Although she requested a hearing, the administrative judge
    found that she was not entitled to one because she failed to nonfrivolously allege
    that the Board had jurisdiction over her appeal. See IAF, Tab 30 at 4, Tab 35,
    Initial Decision (ID) at 1. The appeal was thus decided on the written record. ID
    at 1. The administrative judge found that the Board lacked jurisdiction over the
    appeal and dismissed it. 3
    ¶4         On review, the appellant avers that she “did not request to have a lower
    grade when [the] Army command granted a compassionate reassignment for me to
    be closer to help care for mother who lost use of her right arm after a stroke.”
    Petition for Review (PFR) File, Tab 1 at 3. The appellant argues that the agency
    reassigned her to a lower grade job to cover her moving costs, to which she would
    have been entitled had she accepted a BRAC reassignment. 
    Id. She also
    argues
    that in the new position, she has “no respect and ha[s] been put in a corner with
    little workload.” 
    Id. 3 The
    administrative judge did not decide issues related to discrimination. The Board
    has long held that claims of prohibited personnel practices are not an independent
    source of Board jurisdiction. See Synan v. Merit Systems Protection Board, 
    765 F.2d 1099
    , 1100-01 (Fed. Cir. 1985) (the Board lacks pendent jurisdiction over
    discrimination claims absent an appealable adverse action); Wren v. Department of the
    Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 
    681 F.2d 867
    , 871-73 (D.C. Cir. 1982).
    4
    ¶5         With her petition for review, the appellant submitted a lengthy document
    prepared by an agency manager or supervisor at the Warren facility, documenting
    her   behavior     and      including   several     email   messages     supporting   the
    narrative. 
    Id. at 6-27.
    She avers that the notes “were typed up totally behind my
    back and were simply e-mailed by [her] supervisor,” are based on untruths, and
    represent an “effort to keep [her] down.”           
    Id. at 4-5.
       Any petition or cross
    petition for review that contains new evidence or argument must include an
    explanation of why the evidence or argument was not presented before the record
    below closed.      5 C.F.R. § 1201.114(b).        The record shows that management
    emailed the document to the appellant on April 9, 2015, after the close of the
    record.   PFR File, Tab 1 at 6.         Even if the document was unavailable to the
    appellant despite her due diligence before the record closed, it also must be
    material to form the basis for the Board to grant her petition for review. 5 C.F.R.
    § 1201.115(d).     That is, the newly submitted evidence must be of sufficient
    weight to warrant an outcome different from that of the initial decision. Russo v.
    Veterans Administration, 3 M.S.P.R. 345, 349 (1980).                 The submitted item
    documents the appellant’s conduct after her transfer to Warren, and does not
    pertain to the agency’s action transferring her there. 4           Accordingly, it is not
    material to the appeal. 5
    ¶6         To constitute an appealable action, a reduction in grade or pay must be
    involuntary.     Garcia v. Department of Homeland Security, 
    437 F.3d 1322
    ,
    1328-29    (Fed.    Cir.    2006)   (en    banc);    Huyler   v.    Department   of   the
    4
    The appellant filed an equal employment opportunity complaint pertaining to her work
    environment at Warren. The complaint was settled, and she was transferred to a
    different position effective January 12, 2014. See IAF, Tab 9 at 8-9, 11.
    5
    On June 23, 2015, the appellant filed a motion requesting to submit an additional
    pleading based on new and material evidence. PFR File, Tab 6 at 3. We deny the
    motion. See Curtin v. Office of Personnel Management, 
    846 F.2d 1378-79
    (Fed. Cir.
    1988) (holding that the Board has discretion to make evidentiary rulings in the course
    of proceedings before it); 5 C.F.R. § 1201.115(e) (providing that the Board has
    authority to consider any issue in an appeal before it).
    5
    Army, 101 M.S.P.R. 570, ¶ 7 (2006); see 5 C.F.R. § 752.401(b)(9). A reduction
    in pay or grade that an employee accepts voluntarily is not within the Board’s
    jurisdiction. O’Connell v. U.S. Postal Service, 69 M.S.P.R. 438, 443 (1996). The
    appellant admitted that she accepted the compassionate reassignment, but asserts
    that she did not understand she was accepting a reduction in grade. See IAF,
    Tab 10 at 3, Tab 25 at 3, Tab 31. The undisputed facts, however, show that the
    appellant preemptively requested a compassionate reassignment after she learned
    she would be transferred to New Jersey under the BRAC process, and that the
    agency granted her request.     IAF, Tab 24 at 5-6.      The agency’s reassignment
    policy states that employees who request a compassionate reassignment may be
    considered for lower-graded positions, do not have the right to priority
    consideration for a higher grade, and normally will not be eligible for grade or
    pay retention. IAF, Tab 32 at 17. The appellant elected to apply for a GS-1102-
    12 position. IAF, Tab 24 at 5-6. The agency offered a GS-1102-12 position
    advertised under a different announcement because assigning her to that position
    would allow the agency to pay her PCS expenses. 
    Id. at 6.
    Both the job for
    which she applied and the job to which she was assigned were GS-12 positions.
    The appellant did not allege any facts that, if proven, would establish that her
    transfer to Warren was anything other than voluntary or that the agency sought to
    deceive her about the grade of the position she accepted. 6 Accordingly, we affirm
    the initial decision.
    6
    The appellant also alleges she was erroneously denied a hearing; however, the
    administrative judge correctly decided the appeal on the written record. See Hardy v.
    Merit Systems Protection Board, 
    13 F.3d 1571
    , 1575 (Fed. Cir. 1994) (“a hearing is
    appropriate where a petitioner raises nonfrivolous issues of fact alleging jurisdiction
    which cannot be resolved simply on documentary evidence”).
    6
    NOTICE TO THE APPELLANT REGARDING
    YOUR FURTHER REVIEW RIGHTS 7
    You have the right to request review of this final decision by the United
    States Court of Appeals for the Federal Circuit. You must submit your request to
    the court at the following address:
    United States Court of Appeals
    for the Federal Circuit
    717 Madison Place, N.W.
    Washington, DC 20439
    The court must receive your request for review no later than 60 calendar
    days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
    27, 2012). If you choose to file, be very careful to file on time. The court has
    held that normally it does not have the authority to waive this statutory deadline
    and that filings that do not comply with the deadline must be dismissed. See
    Pinat v. Office of Personnel Management, 
    931 F.2d 1544
    (Fed. Cir. 1991).
    If you need further information about your right to appeal this decision to
    court, you should refer to the Federal law that gives you this right. It is found in
    Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
    Dec. 27, 2012). You may read this law as well as other sections of the United
    States   Code,    at   our     website,    http://www.mspb.gov/appeals/uscode.htm.
    Additional       information          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, and 11.
    If you are interested in securing pro bono representation for an appeal to the
    United States Court of Appeals for the Federal Circuit, you may visit our website
    7
    The administrative judge afforded the appellant mixed-case review rights. ID at 8-9.
    However, in the absence of Board jurisdiction, this is not a mixed case. We have
    provided the appellant the proper review rights here. See, e.g., Axsom v. Department of
    Veterans Affairs, 110 M.S.P.R. 605 (2009).
    7
    at   http://www.mspb.gov/probono for      information    regarding    pro    bono
    representation for Merit Systems Protection Board appellants before the Federal
    Circuit. The Merit Systems Protection Board neither endorses the services
    provided by any attorney nor warrants that any attorney will accept representation
    in a given case.
    FOR THE BOARD:                           ______________________________
    William D. Spencer
    Clerk of the Board
    Washington, D.C.