Jacqueline L. Dumpson v. Social Security Administration ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JACQUELINE L. DUMPSON, DOCKET NUMBER
Appellant, PH-752S-13-5961-I-1
v.
SOCIAL SECURITY DATE: August 8, 2014
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jacqueline L. Dumpson, Philadelphia, Pennsylvania, pro se.
Rafael Melendez, Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appellant’s appeal for lack of jurisdiction and as untimely.
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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
erroneous interpretation of statute or regulation or the erroneous application of
the law to 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 is employed as a GS-06 Contact Representative (Teleservice
Representative). Initial Appeal File (IAF), Tab 8, Subtab 17. Effective February
6, 2013, the agency suspended the appellant for 14 days for conduct that occurred
in November and December 2012. Id., Subtab 15. On August 27, 2013, the
appellant received a 30-day suspension for conduct that occurred in April 2013.
Id., Subtab 21.
¶3 The appellant filed a Board appeal on September 20, 2013 challenging the
30-day suspension. 2 The appellant filed a second Board appeal challenging the
14-day suspension on September 25, 2013. IAF, Tab 1. For the second appeal,
she checked various boxes on her initial appeal form indicating that her appeal
concerned a reduction in grade, pay, or band; a suspension for more than 14 days;
2
We do not address the merits of the appellant’s 30-day suspension here because the
Board appeal challenging that action was adjudicated separately; the administrative
judge issued an initial decision in that appeal on April 30, 2014. Dumpson v. Social
Security Administration, MSPB Docket No. PH-0752-13-5957-I-1, Initial Decision
(Apr. 30, 2014). The Board’s records show that the Board rejected the appellant’s
petition for review because it did not comply with the Board’s regulations. The
appellant has not filed a perfected petition for review in the case concerning her 30-day
suspension.
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a negative suitability determination; and a separation, demotion, or furlough for
more than 30 days by reduction in force. Id. The administrative judge issued an
acknowledgment order and ordered the appellant to submit evidence and
argument on the issues of jurisdiction and timeliness. IAF, Tab 2. The agency
moved to dismiss the appeal as untimely and for lack of jurisdiction because the
appellant was not suspended for more than 14 days. IAF, Tab 13. In her initial
decision, the administrative judge found both that the Board did not have
jurisdiction over the appellant’s appeal because the appellant was not suspended
for more than 14 days and that the appeal was untimely filed without good cause
for the delay. IAF, Tab 14 at 4, Initial Decision (ID). On petition for review, the
appellant asks that the Board review her 14-day suspension, along with the
30-day suspension that was the subject of her other Board appeal. Petition for
Review File, Tab 1.
¶4 The administrative judge correctly found that the Board does not have
jurisdiction to review the appellant’s 14-day suspension. The Board’s jurisdiction
is not plenary; it 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). The appellant must prove jurisdiction by
preponderant evidence. 5 C.F.R. § 1201.56(a)(2)(i). A “suspension” is the
temporary placement of an employee in a non-pay, non-duty status for
disciplinary reasons. 5 U.S.C. §§ 7501(2), 7511(a)(2). Suspensions of more than
14 days are within the Board’s jurisdiction under 5 U.S.C. §§ 7512(2) and
7513(d), however, a suspension of 14 days or fewer is not an appealable action.
Lefavor v. Department of the Navy, 115 M.S.P.R. 120, ¶ 5 (2010). Thus, the
Board does not have jurisdiction to review the appellant’s 14-day suspension.
¶5 The Board has recognized that, for purposes of finding Board jurisdiction,
consecutive suspensions may be combined when they are based on the same
reason, and has left open the possibility that non-consecutive suspensions may be
combined when (1) the suspensions are based on the same reason, and (2) there is
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evidence that the agency attempted to circumvent Board jurisdiction by imposing
multiple suspensions of 14 days or less. Edwards v. U.S. Postal Service,
112 M.S.P.R. 196, ¶ 8 (2009). However, in this case, the appellant’s 14-day
suspension was imposed in February 2013, while her 30-day suspension was
imposed in September and October 2013. IAF, Tab 8, Subtab 21. The
suspensions were therefore not consecutive. See Edwards, 112 M.S.P.R. 196, ¶ 8.
Additionally, the suspensions were imposed for non-consecutive conduct because
the appellant’s 14-day suspension was imposed for conduct that occurred in
November and December 2012. Id., Subtab 14. Her 30-day suspension was
imposed for conduct in April 2013. Id., Subtab 21. Finally, the record reflects
that the suspensions were imposed for different reasons because the 14-day
suspension was imposed for “conduct unbecoming a Federal employee,
specifically, Disruption of the Workplace; Discourteous Service to a Customer;
Discourteous Behavior to a Co-Worker,” whereas the 30-day suspension was
imposed for “Conduct Unbecoming a Federal Employee, namely inappropriate
behavior toward a management official.” Id., Subtabs 1, 14, 15, 21. We find that
the appellant’s 30-day suspension cannot be combined with the 14-day
suspension, as the 30-day suspension was not imposed shortly after the 14-day
suspension, was based upon conduct from a different time period than the 14-day
suspension, and specified a different reason for suspension. See Edwards,
112 M.S.P.R. 196, ¶ 8. The administrative judge therefore properly concluded
that the Board does not have jurisdiction over the appellant’s 14-day suspension.
ID at 4. Because we agree with the administrative judge’s finding regarding
jurisdiction, we need not address her alternative finding regarding the timeliness
of the appeal.
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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
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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
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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.