Kareem Michel v. United States Postal Service ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KAREEM MICHEL, DOCKET NUMBER
Appellant, NY-3443-18-0178-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: February 15, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Atika Muhammad , Brooklyn, New York, for the appellant.
Anthony V. Merlino , Esquire, New York, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
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 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
The appellant’s only submission to the administrative judge indicated that
he was trying to appeal the failure to schedule a mediation date regarding an
equal employment opportunity (EEO) claim. Initial Appeal File (IAF), Tab 1
at 5, 7. After the appellant failed to respond to the administrative judge’s
jurisdictional order, the administrative judge dismissed the appeal on the grounds
that he had failed to make a nonfrivolous allegation that he had been subjected to
an appealable action. IAF, Tab 5, Initial Decision.
On review, the appellant explains that he resigned from his position with
the Postal Service on January 20, 2018. Petition for Review (PFR) File, Tab 1
at 4. However, approximately 1 month after tendering his resignation, the
appellant decided that he wanted his job back. Id. He avers that human resources
initially informed him that the Postal Service had not processed his resignation;
accordingly, he returned to work on March 31, 2018. Id. The appellant indicates
that he continued to work his usual shift until May 18, 2018, when the agency
informed him that he was no longer an employee on account of his resignation.
Id. at 5. The appellant contends that “EEO was suppose[d] to be helping [him]”
sort through issues related to his employment status but failed to do so. Id. He
more specifically alleges that “EEO [failed] to set up a mediation” and that this
failure prompted his appeal to the Board. Id. The appellant also provides
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documentary evidence, none of which was submitted to the administrative judge.
Id. at 7-40.
The appellant’s arguments on review fail to show any error in the
administrative judge’s conclusion that, based on the record before him, the
appellant had failed to make a nonfrivolous allegation that he had been subjected
to an appealable action. Although the appellant has provided additional
allegations on review, he has provided no explanation as to why he did not
present these allegations prior to the close of the record, as required. See
5 C.F.R. § 1201.114(b). The documents he provides on review are similarly
irrelevant, and the appellant again provides no explanation as to why he did not
timely submit these filings to the administrative judge. See Avansino v. U.S.
Postal Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.114(b).
Further, to the extent that the appellant is attempting to challenge other
actions, such as circumstances regarding his resignation, return to work, and
potential subsequent termination, he has not made nonfrivolous allegations that
he is the type of Postal employee who has Board appeal rights. A Postal Service
employee may file a Board appeal challenging an adverse action taken under
5 U.S.C. chapter 75 only if (1) he is 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) he has completed 1 year of
continuous service in the same or similar positions. IAF, Tab 3 at 1-2; see
Toomey v. U.S. Postal Service, 71 M.S.P.R. 10, 12 (1996). 2 Here, the appellant
provides numerous Postal Service Form 50s, all of which indicate that he was a
nonpreference-eligible PS-4 Mail Handler. PFR File, Tab 1 at 11, 18-19, 24. To
the extent he seeks to bring a chapter 75 adverse action appeal, he has failed to
make nonfrivolous allegations that he has such appeal rights. See Toomey,
71 M.S.P.R. at 12; see also Hay v. U.S. Postal Service, 103 M.S.P.R. 167, ¶ 7
2
The administrative judge’s jurisdictional order advised the appellant of these criteria,
and thus, he has had a full and fair opportunity to make allegations in this regard. IAF,
Tab 3 at 1-2.
4
(2006) (concluding that the appellant, a PS -4 Mail Handler, was neither a
supervisor or manager nor engaged in personnel work).
The appellant also fails to provide any evidence or argument suggesting
that his claim constitutes a restoration appeal in accordance with 5 C.F.R. part
353. To the contrary, he concedes that he voluntarily resigned from his position
due to financial issues. PFR File, Tab 1 at 4, 7-9, 16. We therefore discern no
basis for jurisdiction in this regard. See Tat v. U.S. Postal Service, 109 M.S.P.R.
562, ¶ 9 (2008) (explaining that to be entitled to restoration rights in accordance
with 5 C.F.R. part 353 an employee must have been separated from an
appointment as a result of a job-related medical condition accepted by the Office
of Workers’ Compensation Programs).
NOTICE OF APPEAL RIGHTS 3
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
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 within 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
3
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 any matter.
5
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 for 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.
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
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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. 420 (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
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
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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. 4 The court of appeals must receive your petition for
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
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
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 jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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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.
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.