Wanda F. Brumfield v. Social Security Administration ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WANDA F. BRUMFIELD, DOCKET NUMBER
Appellant, AT-3443-16-0093-I-1
v.
SOCIAL SECURITY DATE: April 15, 2016
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Wanda F. Brumfield, Wesley Chapel, Florida, pro se.
Jerome M. Albanese and Melanie N. Williams, Atlanta, Georgia, 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 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 On October 31, 2015, the appellant filed a Board appeal in which she
indicated that she was appealing a reduction in grade or pay and her “promotion,
performance assessment.” Initial Appeal File (IAF), Tab 1 at 3. In subsequent
pleadings, she further asserted that the agency had discriminated against her on
the bases of her race and disability, denied her a reasonable accommodation, and
improperly considered her absences due to her disability when it rated her
successful instead of outstanding on her fiscal year 2015 performance assessment.
IAF, Tab 9 at 9, Tab 10 at 4. She also claimed that the agency reduced her pay
and demoted her by charging her leave for each occasion she left her cubical as a
result of symptoms related to her disability, except for her lunch and break
periods. 2 IAF, Tab 9 at 11‑12.
¶3 The agency moved to dismiss the appeal for lack of jurisdiction, asserting
that the appellant had not alleged that she suffered an appealable action. IAF,
2
Such an argument appears to relate to the agency’s decision regarding the appellant’s
request for reasonable accommodation in which it granted her liberal leave during the
day if her medical condition required excessive time off the phone. IAF, Tab 13 at 27.
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Tab 8. The administrative judge issued an order to show cause in which she
informed the appellant of her burden of establishing Board jurisdiction and
ordered the appellant to file evidence and argument to show that the appeal was
within the Board’s jurisdiction. IAF, Tab 12. In response, the appellant asserted
that the agency committed prohibited personnel practices, referenced regulations
concerning an employment practices appeal, and submitted various documents
concerning her discrimination complaint and leave usage. IAF, Tabs 13‑14.
¶4 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 15, Tab Initial Decision (ID). The administrative judge found that the
appellant had failed to nonfrivolously allege that the agency reduced her rate of
pay for her position as a Teleservice Representative and that her other claims
did not confer Board jurisdiction. ID at 3. The administrative judge also found
that, to the extent the appellant was attempting to bring an employment practices
appeal, there was no indication that either she had sought a promotion in the
competitive service or was an applicant who believed that an employment
practice applied to her by the Office of Personnel Management violated a basic
requirement in 5 C.F.R. § 300.103. ID at 3‑4.
¶5 The appellant has filed a petition for review in which she reiterates the
arguments she raised below 3 and contends that the Board has jurisdiction over her
3
On review, as below, the appellant cites generally to the regulations concerning an
employment practices appeal, but does not identify any particular employment practice
she contends violated a basic requirement in 5 C.F.R. § 300.103. IAF, Tab 13 at 8-9;
Petition for Review (PFR) File, Tab 1 at 13-14. Thus, we agree with the administrative
judge that the appellant has not made a nonfrivolous allegation of Board jurisdiction
over an employment practices appeal. ID at 3-4. Ordinarily, an appellant must receive
explicit information on what is required to establish an appealable jurisdictional issue.
Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985).
Here, however, the appellant’s vague assertions below regarding an employment
practices claim did not trigger a duty on the part of the administrative judge to provide
her with her burden of proof over this claim. IAF, Tab 13 at 8-9. Even if the
administrative judge improperly failed to provide such notice, any error did not
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discrimination claims because her appeal is a mixed-case appeal. Petition for
Review (PFR) File, Tab 1. The agency has opposed the appellant’s petition. 4
PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule or regulation. Maddox v. Merit Systems Protection
Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Thus, it follows that the Board does not
have jurisdiction over all matters alleged to be unfair or incorrect. Johnson v.
U.S. Postal Service, 67 M.S.P.R. 573, 577 (1995). The appellant bears the burden
of proving by preponderant evidence 5 that her appeal is within the Board’s
jurisdiction. 5 C.F.R. § 1201.56(b)(2)(i)(A). Having considered the appellant’s
submissions below and on review, we agree with the administrative judge that the
appellant has not raised any claim that would be within the Board’s authority to
address. ID at 4.
¶7 The Board generally has jurisdiction to review an appeal of a reduction in
grade or pay. Simmons v. Department of Housing & Urban Development,
120 M.S.P.R. 489, ¶ 5 (2014); see 5 U.S.C. § 7512(3)-(4). The term grade is
defined as “a level of classification under a position classification system.”
5 U.S.C. § 7511(a)(3). Pay means “the rate of basic pay fixed by law or
prejudice the appellant’s substantive rights because the appellant’s pleadings
demonstrate that she is aware of the jurisdictional prerequisites. See Panter v.
Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory
error that is not prejudicial to a party’s substantive rights provides no basis for reversal
of an initial decision).
4
Although the agency’s response was due on January 17, 2016, PFR File, Tab 2, the
deadline was extended until January 19, 2016, because January 17, 2016, was a Sunday
and January 18, 2016, was a Federal holiday, see 5 C.F.R. § 1201.23. Accordingly, we
find the agency’s response was timely filed and we deny the appellant’s motion to
dismiss the agency’s response as untimely filed. PFR File, Tab 4.
5
A preponderance of the evidence is that “degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4(q).
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administrative action for the position held by an employee.” 5 U.S.C.
§ 7511(a)(4). As the administrative judge found, the appellant’s assertion that the
agency required her to take leave when not in her work area does not constitute a
nonfrivolous allegation that the agency reduced her rate of basic pay or that she
otherwise suffered an appealable reduction in pay or grade. ID at 3.
¶8 Similarly, the administrative judge properly found that the Board lacks
jurisdiction over the appellant’s disagreement with her 2015 performance rating.
See Manley v. Department of the Air Force, 91 F.3d 117, 119 (Fed. Cir. 1996)
(finding that disagreement with a performance appraisal, unaccompanied by an
otherwise appealable adverse action, is not independently appealable to the
Board); Bambl v. Department of the Treasury, 113 M.S.P.R. 55, ¶ 9 (2010)
(stating that the Board lacks jurisdiction over appeals of performance appraisal
ratings except when raised in the context of either an individual right of action
appeal or Uniformed Services Employment and Reemployment Rights Act
appeal).
¶9 On review, the appellant contends that the Board has jurisdiction over her
case as a mixed-case appeal. PFR File, Tab 1 at 4-5. A mixed case is one in
which an employee alleges that an action otherwise appealable to the Board was
based in whole or in part on prohibited discrimination, which is a prohibited
personnel practice under 5 U.S.C. § 2302(b)(1). See 5 C.F.R. § 1201.151. As
explained above, the appellant failed to establish that she suffered an action
appealable to the Board. Absent an otherwise appealable action, the Board cannot
consider a prohibited personnel practice claim of discrimination in violation of
title VII of the Civil Rights Act of 1964. See Davis v. Department of Defense,
105 M.S.P.R. 604, ¶ 16 (2007); Wren v. Department of the Army, 2 M.S.P.R. 1, 2
(1980) (finding 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).
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¶10 Accordingly, we find that the administrative judge properly dismissed the
appeal for lack of jurisdiction.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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 U.S. 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 U.S. 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 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
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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.