D'Andrea Harris v. United States Postal Service

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
D’ANDREA L. HARRIS, DOCKET NUMBER
Appellant, CH-0752-16-0501-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: December 16, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Catherine O. Marks, Chicago, Illinois, for the appellant.
Rebecca L. Heeter, Esquire, Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial d ecision, which
dismissed her suspension 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 The appellant, who is employed as a Level 07 Lead Sales Clerk, filed a
Board appeal, challenging the agency’s decision to place her in an emergency
off-duty status (without pay) and change her work schedule. Initial Appeal File
(IAF), Tab 1 at 2, Tab 9, Initial Decision (ID) at 2. She alleged the actions were
taken in reprisal for her equal employment opportunity (EEO) activit y. IAF,
Tab 1 at 2. The administrative judge apprised the appellant of her burden to
establish jurisdiction over her appeal, including that she was a Postal employee
over whom the Board had jurisdiction, and afforded her an opportunity to provide
additional argument and evidence on the jurisdictional issue. IAF, Tab 2 at 2-3.
The appellant’s response only provided more details about the complained-of
personnel actions and her reprisal claims, which were immaterial to the identified
jurisdictional issue. IAF, Tab 7.
¶3 The administrative judge issued an initial decision, dismissing the appeal
for lack of jurisdiction, without holding the appellant’s requested hearing. IAF,
Tab 1 at 1, ID at 7. The administrative judge considered the undisputed facts that
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the appellant had served in the U.S. Army from August 6, 1980, until she was
honorably discharged on October 27, 1981, and that at the time of filing her
appeal, she had completed 1 year of current, continuous service. ID at 2, 4. She
nonetheless found that the appellant did not nonfrivolously allege that she was an
employee, as defined by 5 U.S.C. § 7511(a)(1)(B) or 39 U.S.C. § 1005(a)(4), with
chapter 75 adverse action appeal rights. ID at 3-7. Specifically, the
administrative judge found that the appellant was not a manager, supervisor, or
confidential employee. ID at 4. She further found that the appellant was not
preference eligible, as she did not meet the statutory definition of a veteran
because she did not serve during the time periods enumerated in 5 U.S.C.
§ 2108(1) or receive a campaign badge or expeditionary medal, and she did not
claim to be or provide evidence that she was a disabled veteran. ID at 4-6. The
administrative judge also noted that this finding was consistent with the
appellant’s initial appeal form, in which she indicated that she was not entitled to
veterans’ preference. ID at 6. Finally, she found that in the absence of an
otherwise appealable action, the Board lacked jurisdiction over the appellan t’s
EEO reprisal claims. ID at 7.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. 2 The agency has filed a response, to which the appellant has replied.
PFR File, Tabs 5-6.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 To appeal an adverse action under chapter 75, a Postal Service employee
must be covered by 39 U.S.C. § 1005(a) or 5 U.S.C. § 7511(a)(1)(B). 5 U.S.C.
2
On September 13, 2016, the appellant filed with the Board’s Central Regional Office
her “Response to Jurisdiction,” challenging the administrative judge’s dismissal of her
appeal. PFR File, Tab 1 at 3, 5, 24. The Central Regional Office forwarded the filing
to the Clerk of the Board, who properly docketed it as a petition for review. PFR File,
Tab 1 at 2, 5-7; see 5 C.F.R. § 1201.114(a)(1) (explaining that a petition for review is a
pleading in which a party contends that an initial decision was incorrectly decided in
whole or in part).
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§ 7511(b)(8). Thus, the individual must 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 must have completed 1 year of
current continuous service in the same or similar position. Toomey v. U.S. Postal
Service, 71 M.S.P.R. 10, 12 (1996).
¶6 The appellant challenges the administrative judge’s finding that her position
is not supervisory or managerial, arguing, for the first time on review, that her
position is equivalent to a supervisory position. PFR File, Tab 1 at 5-7. She
further claims, for the first time on review, that she is entitled to veterans’
preference because she is a “service connected veteran.” Id. She seeks to
provide new evidence in support of those contentions: (1) a document, dated
March 19, 1987, indicating that she was discharged from the U.S. Army Reserves
on that date; (2) an undated position description and qualification standards for
her position; and (3) a Department of Labor, Family Medical Leave Act
certification prepared by her physician in 2014 concerning her health condition at
that time. 3 PFR File, Tab 1 at 9-17.
¶7 The Board generally will not consider an argument raised for the first time
in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence. Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). Furthermore, under
5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted for
the first time with the petition for review absent a showing that it was unavailable
before the record was closed despite the party’s due diligence. See Avansino v.
U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). However, because the
appellant’s new evidence and argument implicates the Board’s jurisdiction, we
3
The remaining documents that the appellant attaches to her petition for review relate
to the merits of the agency’s action. PFR File, Tab 1 at 7, 18-23. Therefore, we decline
to consider them further. Becker v. Department of Veterans Affairs, 112 M.S.P.R. 507,
¶ 9 (2009) (observing that if the threshold issue is jurisdiction, new evidence only is
material on review if it warrants a different outcome on the jurisdictional question).
5
will consider them. See Lovoy v. Department of Health & Human Services,
94 M.S.P.R. 571, ¶ 30 (2003) (considering new arguments raised by an agency on
review because the issue of jurisdiction can be raised at any time).
¶8 This new evidence does not support the appellant’s contentions that she is
preference eligible as defined by 5 U.S.C. § 2108(3), or that she is a manager or
supervisor under 39 U.S.C. § 1005(a)(4)(A)(ii). The appellant’s membership in a
bargaining unit precludes her from being a manager or supervisor. 39 U.S.C.
§ 1202(1); see Carrier v. Merit Systems Protection Board, 183 F.3d 1376, 1378
(Fed. Cir. 1999) (recognizing that managers, supervisors, and confidential
employees are barred as a matter of law from membership in a collective
bargaining unit). Further, honorable service in the reserves, without more, does
not qualify an individual as a preference eligible. See generally 5 U.S.C.
§ 2108(3) (setting forth the requirements for preference eligibility). Finally, there
is no indication that the appellant’s medical condition, which her physician
indicates began in 1990, is related to her military service. PFR File, Tab 1 at 15.
¶9 The appellant has not raised any additional challenges to or otherwise
provided a basis for disturbing the administrative judge’s findings that the
appellant failed to nonfrivolously allege that she was an employee with adverse
action appeal rights. We therefore deny the appellant’s petition for review and
affirm the administrative judge’s dismissal of her appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS 4
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
4
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.
6
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
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
7
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
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,
8
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 challe nge 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 eit her with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 5 The court of appeals must receive your petition for
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The original statutory provision that provided for judicial review of cert ain
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.
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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 warra nts that
any attorney will accept representation in a given case.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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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.