Ivan Matthews v. United States Postal Service ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
IVAN MATTHEWS, DOCKET NUMBERS
Appellant, CH-0752-14-0451-I-1
CH-0353-14-0599-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: NOVEMBER 21, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Ivan Matthews, Cleveland, Ohio, pro se.
Arthur S. Kramer, 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 petitions for review of two initial decisions, which
dismissed his removal and restoration claims for lack of jurisdiction. Generally,
we grant petitions such as these only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 these appeals, and based on the following
points and authorities, we JOIN these appeals, 2 and conclude that the petitioner
has not established any basis under section 1201.115 for granting the petitions for
review. Therefore, we DENY the petitions for review and AFFIRM the initial
decisions, which are now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The appellant was employed by the agency as a non-preference-eligible
Mail Processing Clerk in Cleveland, Ohio. Initial Appeal File (IAF-I), 3 Tab 1 at
1, Tab 7 at 23, 28. In August 2009, the agency involuntarily reassigned the
appellant to a Mail Processing Clerk position in Lexington, Kentucky. IAF-I, Tab
7 at 25. The appellant did not report for duty but, instead, submitted requests for
leave, which the agency denied. IAF-I, Tab 1 at 15, 20-22, 38.
¶3 In September 2009, the appellant filed a claim with the Office of Workers’
Compensation Programs (OWCP), alleging that he suffered from work-related
stress. IAF-I, Tab 7 at 28. While the appellant’s OWCP claim was pending, the
2
Joinder of two or more appeals filed by the same appellant is appropriate where doing
so would expedite processing of the cases and not adversely affect the interests of the
parties. Tarr v. Department of Veterans Affairs, 115 M.S.P.R. 216, ¶ 9 (2010); 5 C.F.R.
§ 1201.36(a)(2), (b). We find that these appeals meet the regulatory criteria, and
therefore, we join them.
3
“IAF-I” refers to the initial appeal file in MSPB Docket No. CH-0752-14-0451-I-1
(Matthews I).
3
agency notified him of his removal, based upon a charge that the appellant was
absent without leave (AWOL). IAF-I, Tab 1 at 15-16. In February 2010,
approximately 2 months after the effective date of the appellant’s removal,
OWCP denied his claim for benefits on the ground that he did not establish that
his condition arose out of his employment. IAF-I, Tab 1 at 15, 18, Tab 7 at
28-33.
¶4 The appellant grieved his removal. IAF-I, Tab 1 at 18, 21. Following a
hearing, an arbitrator issued a decision sustaining the agency’s removal action.
Id. at 17, 26.
¶5 After unsuccessfully pursuing an equal employment opportunity (EEO)
complaint regarding his removal, the appellant initiated an appeal with the Board
challenging his reassignment and removal. IAF-I, Tab 1 at 1-12, 27-31. In his
Board appeal, the appellant alleged that he suffered discrimination and that the
agency retaliated against him for both his EEO and whistleblower activity. IAF-I,
Tab 1 at 6-7, Tab 6 at 5-6. The appellant further alleged that the agency failed to
inform him of his right to appeal to the Board, denying him the right to appeal the
arbitration decision. IAF-I, Tab 1 at 7-8. In addition, the appellant alleged that
the agency improperly failed to restore him to duty following his recovery from a
compensable injury. IAF-I, Tab 1 at 6, Tab 6 at 4-5.
Proceedings in Matthews I.
¶6 The administrative judge issued an order requiring the appellant to submit
evidence and argument demonstrating that the Board had jurisdiction over his
appeal. IAF-I, Tab 2 at 2-3.
¶7 After both parties responded, the administrative judge dismissed the appeal
for lack of jurisdiction without holding the hearing requested by the appellant.
IAF-I, Tab 9, Initial Decision (ID-I). She found that the appellant failed to raise
a nonfrivolous allegation that he was a U.S. Postal Service employee with the
right to appeal his removal to the Board. ID-I at 2. Therefore, she found that the
agency was not required to inform the appellant that he had Board appeal rights.
4
ID-I at 4. The administrative judge further found that, absent Board jurisdiction
over an appealable underlying action, the Board could not review the appellant’s
claims of discrimination and prohibited personnel practices. ID-I at 3. In
addition, the administrative judge found that the Board lacked jurisdiction to hear
the appellant’s claim that he was a whistleblower because U.S. Postal Service
employees are not covered under the Whistleblower Protection Act. 4 ID-I at 4.
The administrative judge also found that the Board lacked jurisdiction to review
the appellant’s arbitration decision. ID-I at 3. The appellant has filed a timely
petition for review of the administrative judge’s decision, and the agency has
filed a response. Petition for Review (PFR-I) File, Tabs 1, 3.
¶8 The administrative judge docketed the appellant’s restoration claim as a
separate appeal. ID-I at 3 n.1; Initial Appeal File (IAF-II), 5 Tab 10, Initial
Decision (ID-II) at 1.
Proceedings in Matthews II.
¶9 The administrative judge issued an order requiring the appellant to submit
evidence and argument demonstrating that the Board had jurisdiction over his
restoration appeal. IAF-II, Tab 5 at 1-2. After both parties responded, the
administrative judge dismissed the appellant’s restoration appeal for lack of
jurisdiction without holding a hearing on the ground that the appellant failed to
4
Although the administrative judge referred to the WPA, the appeal was filed after the
December 27, 2012 effective date of the Whistleblower Protection Enhancement Act of
2012 (WPEA). See WPEA, Pub. L. No. 112–199, § 202, 126 Stat. 1465, 1476
(indicating that the WPEA would take effect 30 days after its enactment date of
November 27, 2012); King v. Department of the Air Force, 119 M.S.P.R. 663, ¶ 3
(2013) (noting that the WPEA was signed into law on November 27, 2012, with an
effective date of December 27, 2012); IAF, Tab 1 (reflecting a submission date of April
7, 2014). However, we have examined the WPEA and find that nothing in the act
permits a postal employee to file an individual right of action appeal.
5
“IAF-II” refers to the appeal file in the appellant’s restoration appeal, MSPB Docket
No. CH-0353-14-0599-I-1 (Matthews II).
5
establish that he had suffered a compensable injury. 6 ID-II. The appellant has
filed a timely petition for review of the administrative judge’s decision, and the
agency has filed a response. Petition for Review (PFR-II) File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board lacks jurisdiction over the appellant’s restoration claim because he did
not meet his burden to establish that he suffered from a compensable injury.
¶10 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 bears
the burden of proving Board jurisdiction by preponderant evidence. 5 C.F.R.
§ 1201.56(a)(2)(i). To establish Board jurisdiction over a restoration appeal as a
fully recovered employee, 7 the appellant must prove by preponderant evidence, in
pertinent part, that he suffered a compensable injury. See Bledsoe v. Merit
Systems Protection Board, 659 F.3d 1097, 1102 (Fed. Cir. 2011) (setting forth the
preponderance of the evidence standard); Young v. U.S. Postal
Service, 115 M.S.P.R. 424, ¶ 12 (2010) (discussing the jurisdictional test for
claims of full recovery).
¶11 On review, the appellant contends that a “compensable injury” is an injury
incurred in the course of his employment, for which he “may be entitled to
compensation.” PFR-I File, Tab 1 at 3 n.2; PFR-II File, Tab 1 at 4 n.2. Thus, as
below, the appellant argues he suffered from a compensable injury because he
was absent from work due to illness and his OWCP claim was pending at the time
of his removal. PFR-II File, Tab 1 at 4 & n.3, 6. We disagree.
6
The administrative judge declined to address whether the appellant’s restoration
appeal was timely, having determined that the Board lacked jurisdiction over the
appeal. ID-II at 3.
7
The appellant alleged that he was a fully recovered employee, as opposed to a
partially recovered employee. See IAF-II, Tab 8 at 2.
6
¶12 A compensable injury is a condition that is accepted by OWCP as
job-related, and for which medical monetary benefits are payable from the
Employees’ Compensation Fund. Burnett v. U.S. Postal Service, 104 M.S.P.R.
308, ¶ 8 (2006); Norwood v. U.S. Postal Service, 100 M.S.P.R. 494, ¶ 4 (2005).
In February 2010, OWCP denied the appellant’s claim for benefits because he
failed to establish that his condition arose out of his employment. IAF-I, Tab 7 at
28-33. The appellant appealed that decision to the Employees’ Compensation
Appeals Board (ECAB). IAF-II, Tab 8 at 8. Although ECAB remanded OWCP’s
decision denying the appellant’s reconsideration request for further factual
findings, the appellant did not allege that OWCP subsequently determined that he
was entitled to benefits and did not submit any evidence to this effect. See
IAF-II, Tab 8.
¶13 On review, the appellant alleges that the agency should not have removed
him because he provided the agency with a “return to duty medical certification,”
which indicated that he was incapacitated for approximately 3 of the 8 weeks that
he was considered AWOL. PFR-I File, Tab 1 at 3-4; PFR-II File, Tab 1 at 4; see
IAF-I, Tab 1 at 15 (reflecting the dates that the appellant was considered AWOL).
However, the appellant has not provided this certification or any evidence
indicating that OWCP determined that his condition was job-related. In the
absence of any evidence that OWCP determined that the appellant was entitled to
benefits, the administrative judge properly dismissed his restoration claim for
lack of jurisdiction.
The appellant was not entitled to a hearing in his restoration appeal because he
failed to raise nonfrivolous allegations of Board jurisdiction.
¶14 On review, the appellant contends that the administrative judge erred in
stating that he did not request a hearing in his restoration appeal. PFR-II File,
Tab 1 at 2; ID-II at 1. The appellant correctly notes that, 5 days after the
administrative judge issued the order to show cause in his restoration appeal, he
filed a motion to stay the appeal, which contained the words “Request [a]
7
Hearing” in the caption. PFR-II File, Tab 1 at 2; IAF-II, Tab 6 at 1. However,
although the administrative judge appears to have overlooked the appellant’s
request for a hearing, we determine that because this adjudicatory error did not
affect his substantive rights, it does not form a basis for reversing the initial
decision. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282
(1984). An appellant is entitled to a jurisdictional hearing only if he makes a
nonfrivolous allegation of Board jurisdiction, i.e., an allegation of fact which, if
proven, could establish a prima facie case that the Board has jurisdiction over the
matter at issue. Bledsoe, 659 F.3d at 1102. The administrative judge’s show
cause order advised the appellant that, to establish the Board’s jurisdiction over
his appeal, it was necessary to submit evidence indicating that he had received
OWCP benefits for a compensable injury. IAF-II, Tab 5 at 1. Although the
appellant was notified of this jurisdictional requirement, neither below nor on
appeal has he alleged that OWCP determined that he was entitled to benefits. See
IAF-II, Tab 6, Tab 8; PFR-I File, Tab 1; PFR-II File, Tab 1. We find that, in the
absence of a nonfrivolous allegation of Board jurisdiction over his restoration
appeal, the appellant was not entitled to a jurisdictional hearing. 8 See Bledsoe,
659 F.3d at 1102.
8
With his petition for review, the appellant submits an August 6, 2014 letter from the
Department of Labor (DOL), which he contends constitutes new and material evidence
that was not available despite due diligence when the record below closed. PFR-II File,
Tab 1 at 8; see 5 C.F.R. § 1201.115(d). However, the letter merely reflects that the
appellant’s claim remains under OWCP review, in accordance with ECAB’s May 13,
2013 remand instructions. PFR-II File, Tab 1 at 12-13. The only potentially new
evidence contained in the letter is the fact that the claim remains pending. Even if we
considered the status of the appellant’s OWCP claim to be new evidence, it is not
material. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (evidence
is material if it is of sufficient weight to warrant an outcome different from that of the
initial decision). The fact that the appellant’s OWCP claim remains pending is
insufficient to establish jurisdiction.
8
The appellant is not an employee with the right to appeal an adverse action under
chapter 75 to the Board.
¶15 On review, the appellant argues that the administrative judge erred in
finding that he was not an employee with the right to appeal his removal and
reduction in pay to the Board. PFR-I File, Tab 1 at 2, 4-6. We disagree.
¶16 Unlike in the case of a denial of restoration, only certain U.S. Postal
Service employees have the right to appeal adverse actions to the Board. See
Norwood, 100 M.S.P.R. 494, ¶ 4. A U.S. Postal Service employee may file a
Board appeal under chapter 75 only if he is covered by 39 U.S.C. § 1005(a)
or 5 U.S.C. § 7511(a)(1)(B). See 5 U.S.C. § 7511(b)(8). Thus, as correctly stated
by the administrative judge, to appeal an adverse action under chapter 75, a U.S.
Postal Service employee must: (1) be a preference eligible, a management or
supervisory employee, or an employee engaged in personnel work in other than a
purely nonconfidential clerical capacity; and (2) have completed 1 year of current
continuous service in the same or similar positions. 9 Toomey v. U.S. Postal
Service, 71 M.S.P.R. 10, 12 (1996).
¶17 The appellant does not claim that he is preference eligible, a management or
supervisory employee, or an employee engaged in personnel work in other than a
purely nonconfidential clerical capacity. See IAF-I, Tab 1 at 1, Tabs 6, 8.
Accordingly, the administrative judge properly found that the appellant failed to
make a nonfrivolous allegation that he was an employee with the right to appeal
an adverse action under chapter 75 to the Board. ID-I at 2.
¶18 On review, the appellant attempts to argue the merits of the AWOL charge
that formed the basis of the agency’s decision to remove him. 10 PFR-I, Tab 1 at
9
Contrary to the appellant’s assertions on review, 5 U.S.C. § 7511(a)(1)(C)(ii) does not
establish Board jurisdiction over the removal of a U.S. Postal Service employee who
has completed more than 2 years of current continuous service with the agency. See
PFR-I File, Tab 1 at 2, 5; PFR-II File, Tab 1 at 2; see also Toomey, 71 M.S.P.R. at 12.
10
The appellant also takes issue with the fact that the administrative judge stated that
he was AWOL between May 27, 2009, and September 24, 2009. PFR-II File, Tab 1 at
9
2-4. However, because the appellant is not an employee with the right to appeal
his removal to the Board, we cannot address the merits of the underlying charge.
¶19 The appellant further argues that the administrative judge erred in failing to
address his arguments that his reassignment resulted in a reduction in pay. PFR-I
File, Tab 1 at 2. However, like the appellant’s removal, the Board lacks
jurisdiction over an alleged reduction in pay because it is an adverse action under
chapter 75. See 5 U.S.C. § 7512(4). Thus, the administrative judge’s failure to
address this argument was harmless. See Panter, 22 M.S.P.R. at 282.
¶20 In his petitions for review, the appellant does not challenge the
administrative judge’s findings that, absent an otherwise appealable action, the
Board lacked jurisdiction to review his claims of discrimination and prohibited
personnel practices. See ID-I at 3. He also does not challenge the administrative
judge’s findings that the Board lacked jurisdiction to review the arbitration
decision and his claim of whistleblower reprisal. ID-I at 4. Based on our review
of the record, we discern no basis to disturb the administrative judge’s
conclusions on these issues.
¶21 We have considered the appellant’s remaining arguments, including his
claim that the administrative judge should not have docketed his restoration
appeal separately from his removal appeal, and we find that they do not present a
basis for disturbing the administrative judge’s initial decision. Even assuming
that the decision to docket the appeals separately was a procedural error, it did
not affect the appellant’s substantive rights, and does not form a basis for
overturning the initial decisions. See Karapinka v. Department of
Energy, 6 M.S.P.R. 124, 127 (1981). The administrative judge correctly
concluded that the Board lacked jurisdiction over both appeals.
3; ID-II at 1 n.1. Although this statement was in error, the error did not affect the
appellant’s substantive rights, and does not form a basis for reversing the initial
decisions. See Panter, 22 M.S.P.R. at 282. The precise dates that the appellant was
AWOL were not relevant to the administrative judge’s jurisdictional determinations.
See ID-I at 2-4; ID-II at 2-3.
10
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
11
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.