Dennis W. Olivarez v. United States Postal Service ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DENNIS W. OLIVAREZ, DOCKET NUMBER
Appellant, NY-3443-15-0193-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: September 3, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Dennis W. Olivarez, Manorville, New York, pro se.
Anthony V. Merlino, Esquire, New York, New York, 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 his appeal for lack of jurisdiction. 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 the facts of the case; the
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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 was reassigned to a position in which he no longer supervised
mail handlers as a result of a settlement agreement between the agency and the
National Postal Mail Handlers Union. Initial Appeal File (IAF), Tabs 1, 5. The
appellant filed an appeal alleging that, as a result of the reassignment he may be
denied the opportunity to receive a pay raise under the agency’s pay for
performance policy. Id. He also alleged that, in taking the action, the agency
denied him constitutionally required due process. IAF, Tab 1.
¶3 Without holding a hearing, the administrative judge issued an initial
decision finding that the appellant failed to make a nonfrivolous allegation of
Board jurisdiction. IAF, Tab 6, Initial Decision (ID) at 4. He found that the
Board’s jurisdiction generally does not extend to a reassignment where there has
been no reduction in grade or basic rate of pay. ID at 3-4. He found that a
possible loss of a pay performance award does not constitute an appealable
reduction in the basic rate of pay. ID at 4. He also found that, absent an
appealable action, the Board does not have jurisdiction over the appellant’s claim
of a due process violation. ID at 4-5.
¶4 In his petition for review, the appellant reiterates the arguments that he
made below and asserts that, due to the reassignment, he also is losing some night
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differential pay, some Sunday premium pay, and, because he worked 6 days each
week in his former position, an extra day’s pay each week. Petition for Review
File, Tab 1.
¶5 The Board has jurisdiction over an appeal of a “reduction in pay”
under 5 U.S.C. § 7512(4). 5 U.S.C. §§ 7513(d), 7701. For purposes of section
7512(4), the term “pay” is defined as “the rate of basic pay fixed by law or
administrative action for the position held by an employee.” 5 U.S.C. §
7511(a)(4). It is well settled that a bonus or premium pay is not part of basic pay
and that the loss of or reduction in such pay is not appealable to the Board as a
reduction in pay. See Riojas v. U.S. Postal Service, 88 M.S.P.R. 230, ¶ 7 (2001).
¶6 The appellant has not alleged that his current pay is not at the same rate as
it was before his reassignment, precluding a finding that his pay has been
reduced. In addition, the appellant’s complaint that his reassignment deprives
him of the possible future benefit of a pay raise under the agency’s pay for
performance policy fails to raise a nonfrivolous allegation of Board jurisdiction.
See Peele v. Department of Health & Human Services, 6 M.S.P.R. 296, 299
(1981). Similarly, to the extent that a pay raise under the agency’s pay for
performance policy is in the nature of a bonus or premium pay, his complaint also
fails to raise a nonfrivolous allegation of jurisdiction. See Riojas, 88 M.S.P.R.
230, ¶ 7.
¶7 The appellant alleges for the first time on petition for review that, due to the
reassignment, he also is losing some night differential pay, some Sunday premium
pay, and, because he worked 6 days each week in his former position, an extra
day’s pay each week. Generally, the Board 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). However,
because the appellant’s assertions relate to the issue of the Board’s jurisdiction
over his appeal, we address them. See Ney v. Department of
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Commerce, 115 M.S.P.R. 204, ¶ 7 (2010) (the issue of the Board’s jurisdiction is
always before the Board and may be raised sua sponte by the Board at any time).
¶8 As noted, there is no evidence that, as a result of his reassignment, the
appellant suffered any reduction in his basic rate of pay. The Board has held that
reassignments, with no reduction in grade or basic rate of pay, are not appealable
to the Board as reductions in pay, even if such assignments may result in loss of
holiday pay, shift differentials, and other premium pay. See Fair v. Department
of Transportation, 4 M.S.P.R. 493, 495-96 (1981). Accordingly, the appellant
has failed to raise, either below or on review, specific factual allegations that, if
proven, would show that he has suffered any loss of basic pay. We therefore
concur in the administrative judge’s dismissal of this matter for lack of
jurisdiction, without a hearing. See Ferdon v. U.S. Postal Service, 60 M.S.P.R.
325, 329 (1994) (holding that an appellant is entitled to a jurisdictional hearing if
he makes specific allegations of fact that, if proven, could establish a prima facie
showing of Board jurisdiction). Further, because the Board lacks jurisdiction
over the appeal, we also lack jurisdiction to hear the appellant’s claim that the
agency violated his due process rights. See Burnett v. U.S. Postal
Service, 104 M.S.P.R. 308, ¶ 15 (2006); Smith v. U.S. Postal Service, 81 M.S.P.R.
92, ¶ 11 (1999).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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
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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
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
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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.