Melvin Allmond v. United States Postal Service ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MELVIN L. ALLMOND, DOCKET NUMBER
Appellant, CH-752S-16-0617-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: March 22, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Otis J. Sturdivant, Maple Heights, Ohio, for the appellant.
Suzanne B. McCabe, Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his enforced leave appeal for lack of jurisdiction. Generally, we grant
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
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).
¶2 The appellant, a Level 5 Mail Handler, filed an appeal in which he appeared
to challenge an August 8, 2016 decision by the Equal Employment Opportunity
Commission upholding the agency’s decision dismissing his 2013 equal
employment opportunity (EEO) complaint for failure to state a claim. Initial
Appeal File (IAF), Tab 1 at 2, 13-15. In that complaint, the appellant alleged that
the agency discriminated against him based on his race, sex, and age when, on
June 23, 2013, he was asked to remove his hooded sweatshirt, and when, on
June 29, 2013, after refusing to do so, he was forced to leave the building. Id.
at 13. The agency determined that the appellant took annual leave when he left
work on June 23, and that, on June 29, he worked a full day. Id. at 13-14.
¶3 The administrative judge acknowledged the appeal as the appellant’s
challenge to a suspension for 14 days or less. IAF, Tab 2 at 2. She explained that
the Board generally lacks jurisdiction over such actions, except when the
appellant claims that the agency’s action was taken in retaliation for his protected
disclosures or certain protected activities, that it was in violation of his veterans’
3
preference rights, or that it was an act of discrimination against him based on his
uniformed service, and she ordered him to file evidence and argument that the
action he sought to appeal is within the Board’s jurisdiction. Id. at 2-3. The
agency moved that the appeal be dismissed for lack of jurisdiction and as
untimely filed. IAF, Tab 4.
¶4 Because the appellant identified himself as a preference eligible, IAF, Tab 1
at 1, 24, and submitted supporting documentation, id. at 22, the administrative
judge issued separate orders setting forth the appellant’s burden to establish the
Board’s jurisdiction under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA) and the Veterans Employment
Opportunities Act of 1998 (VEOA), and directing him to respond if he was
alleging a violation of either statute. IAF, Tabs 5-6.
¶5 In his response, which was untimely filed as to all three of the
administrative judge’s orders, the appellant stated that the agency subjected him
to a furlough from June 2013 through August 2013, that he cont racted an illness
while in military service during the Vietnam War, and that his “E.E.O. appeal
didn’t have complete adjudication or exhaustion . . . until October 2016.” IAF,
Tab 8 at 3. He also submitted documents relating to his EEO complaint and to
the agency’s dress code, and numerous photos of his work site. IAF, Tab 8.
¶6 In an initial decision based on the written record, the administrative judge
dismissed the appeal for lack of jurisdiction. 3 IAF, Tab 11, Initial Decision (ID)
at 2, 4. She considered the appellant’s allegation that the agency “improperly
placed him on enforced leave for three days in June 2013” 4 because he wore a
3
Based on her dismissal of the appeal for lack of jurisdiction, the administrative judge
did not consider whether it was timely filed. ID at 4.
4
The record does not support the administrative judge’s statement that the appellant in
fact alleged that he was placed on enforced leave for 3 days. However, because we
agree with the administrative judge’s ultimate disposition in this case, any error on her
4
hooded sweatshirt at work. She found, however, that he failed to nonfrivolously
allege that the agency placed him on enforced leave for more than 14 days, which
would be an appealable action, Abbott v. U.S. Postal Service, 121 M.S.P.R. 294,
¶ 10 (2014), ID at 2-3, and that he also failed to nonfrivolously allege that the
Board has jurisdiction over his appeal under either USERRA or VEOA. ID at 3.
In the absence of Board jurisdiction, the administrative judge found no basis upon
which to consider the appellant’s claims of discrimination. ID at 4.
¶7 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded. 5 PFR File, Tab 3.
¶8 In his petition, the appellant argues the merits of his EEO complaint,
claiming that agency employees were allowed to wear hooded sweatshirts at work
and that he chose to leave the workroom floor, presumably on June 23, 2013, “to
keep [his] cool.” PFR File, Tab 1 at 3, 5-6. He has not, however, shown by these
claims that he nonfrivolously alleged either that he was subjected to an
appealable action; that is, that he was placed on enforced leave for more than
14 days, Abbott, 121 M.S.P.R. 294, ¶ 10, that the agency violated his rights under
VEOA, Becker v. Department of Veterans Affairs, 112 M.S.P.R. 507, ¶ 6 (2009),
or that the agency discriminated against him under USERRA by denying him a
part did not prejudice the appellant’s substantive rights. Panter v. Department of the
Air Force, 22 M.S.P.R. 281, 282 (1984).
5
The agency’s response was untimely filed by 1 day. PFR File, Tab 2-3. The Clerk of
the Board afforded the agency an opportunity to submit a declaration signed under
penalty of perjury stating why there is good cause for the late filing, PFR File, Tab 4,
and the agency submitted such a declaration, explaining that its representative
inadvertently scheduled the task in his calendar for the wrong day, PFR File, Tab 5.
The Board has found that a representative’s clerical errors do not provide good cause to
waive a filing deadline. Ferrin-Rogers v. U.S. Postal Service, 115 M.S.P.R. 140, ¶ 7
(2010). This is especially so in light of the agency representative’s decision to schedule
the filing for the last possible day. PFR File, Tab 5 at 6; see Gill v. Department of the
Treasury, 41 M.S.P.R. 267, 267-70 (1989). However, we need not decide this
timeliness issue because, even considering the response to the petition for review, it
would have no effect on the outcome of this case. Ferrin-Rodgers, 115 M.S.P.R. 140,
¶ 7.
5
benefit of employment, Palumbo v. Department of the Interior, 112 M.S.P.R. 206,
¶ 6 (2009). The appellant therefore has failed to show that the administrative
judge erred in dismissing his appeal for lack of jurisdiction. And, in the absence
of Board jurisdiction, the provisions of 5 C.F.R. § 1201.154, which under certain
circumstances, provide for Board review of an agency’s final decision on an EEO
complaint, do not apply. 6
¶9 Finally, to the extent the appellant argues on review that he is hampered in
arguing his case before the Board because he is not an attorney, PFR File, Tab 1
at 5, it is well established that an appellant is responsible for the errors of his
chosen representative, even if he is representing himself. Sofio v. Internal
Revenue Service, 7 M.S.P.R. 667, 670 (1981).
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
6
With his petition for review, the appellant has submitted a number of documents,
including a medical report from his psychologist, PFR File, Tab 1 at 4, which, although
dated after the close of the record below, does not constitute new evidence. Grassell v.
Department of Transportation, 40 M.S.P.R. 554, 564 (1989) (holding that to constitute
new and material evidence, the information contained in the documents, not just the
documents themselves, must have been unavailable despite due diligence when the
record closed). Nor is the report material to the dispositive jurisdictional issue of this
appeal. Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (holding 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). The remaining documents the appellant has submitted on review
include an undated letter he wrote to his Congresswoman, PFR File, Tab 1 at 8-10, a
pleading from a 2003 juvenile court proceeding, id. at 11, an article regarding the
agency’s policy against “Workplace Harassment,” id. at 13-14, a Wikipedia article, id.
at 15-18, and a 2014 internet post, id. at 19-22. These documents are neither new nor
material. Russo, 3 M.S.P.R. at 349; Avansino v. U.S. Postal Service, 3 M.S.P.R. 211,
214 (1980).
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 a ny matter.
6
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 withi n 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 review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition f or 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.
7
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
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, costs, 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
8
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:
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
8
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
9
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
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.
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 jurisdict ion.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
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.