# Korrey Ostler v. United States Postal Service

> Merit Systems Protection Board · August 7, 2024

URL: https://www.frixlaw.com/law-library/cases/10501292

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** August 7, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

KORREY OSTLER, DOCKET NUMBER
Appellant, DE-0752-19-0205-I-1

v.

UNITED STATES POSTAL SERVICE, DATE: August 7, 2024
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Korrey Ostler , Salt Lake City, Utah, pro se.

Melinda Varszeg i, Esquire, Sandy, Utah, for the agency.

BEFORE

Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which
dismissed his termination 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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
From January 7, 2017, to January 1, 2018, the appellant, a preference
eligible, held a temporary City Carrier Assistant position in the excepted service.
Initial Appeal File (IAF), Tab 6 at 32-33. Following a 6-day break in service, on
January 7, 2018, the agency appointed him to another excepted -service temporary
City Carrier Assistant position. Id. at 31. On November 7, 2018, the agency
proposed his removal for unacceptable conduct and afforded him an opportunity
to respond, which he did in writing on November 11, 2018. Id. at 8-15. While
the proposed removal was pending, the agency converted the appellant from a
temporary position to a career Letter Carrier position effective November 24,
2018. IAF, Tab 7 at 5. On November 28, 2018, the agency issued a decision
letter affirming the charge and finding termination warranted. IAF, Tab 6 at 5-7.
The decision letter indicated that, “[s]ince a grievance has been filed on your
behalf, the removal is deferred until your appeal rights have been exhausted.” Id.
at 6. A Postal Service (PS) Form 50 processed on March 8, 2019, reflects that the
appellant’s termination became effective on December 21, 2018. Id. at 4.
3

The appellant filed a Board appeal challenging his termination and alleging
discrimination and prohibited personnel practices. IAF, Tab 1. The agency
moved to dismiss the appeal for lack of jurisdiction, arguing that the appellant
was not an employee with Board appeal rights because he did not have at least
1 year of current continuous service. IAF, Tab 5 at 8. In response to the
administrative judge’s order on jurisdiction, the appellant appeared to argue that
he was not separated until March 2019 and that he therefore had more than 1 year
of current continuous service. IAF, Tabs 8, 11, 16. Without holding the
appellant’s requested hearing, the administrative judge issued an initial decision
finding that the Board lacked jurisdiction over the termination appeal because, at
the time of his termination, the appellant did not have 1 year of continuous
service in the same or similar positions as to be entitled to appeal rights to the
Board. IAF, Tab 18, Initial Decision (ID) at 2-3. She further found that, absent
an otherwise appealable action, the Board lacked jurisdiction to consider the
appellant’s discrimination and prohibited personnel practices claims. ID at 3-4.
The appellant has filed a petition for review of the initial decision, and the
agency has responded. Petition for Review (PFR) File, Tabs 1, 3

ANALYSIS
Only an “employee,” as defined under 5 U.S.C. chapter 75, can appeal an
adverse action to the Board. See 5 U.S.C. §§ 7511(a)(1), 7513(d); Winns v. U.S.
Postal Service, 124 M.S.P.R. 113, ¶ 8 (2017), aff’d sub nom. Williams v. Merit
Systems Protection Board, 892 F.3d 1156 (Fed. Cir. 2018). Pursuant to 5 U.S.C.
§ 7511(a)(1)(B), which concerns preference-eligible employees in the excepted
service, an employee with the right to appeal to the Board includes a
preference-eligible U.S. Postal Service employee who has completed “1 year of
current, continuous service” in the same or similar positions. 2 5 U.S.C. § 7511(a)

2
Employees of the U.S. Postal Service also may appeal adverse actions to the Board
under 5 U.S.C. chapter 75 if they are management or supervisory employees, or
employees engaged in personnel work in other than a purely nonconfidential clerical
4

(1)(B)(ii); see 5 U.S.C. § 7511(b)(8); Winns, 124 M.S.P.R. 113, ¶ 8. “Current
continuous service” means service immediately prior to the action at issue
without a break in service of a workday. 5 C.F.R. § 752.402; see Winns,
124 M.S.P.R. 113, ¶¶ 8, 14 (holding that the ordinary meaning of “current
continuous service” in section 7511(a)(1)(B) precludes breaks in service). The
appellant bears the burden of proving by preponderant evidence that his appeal is
within the Board’s jurisdiction. 3 5 C.F.R. § 1201.56(b)(2)(i)(A).
Here, it is undisputed that the appellant is a preference eligible and that the
period of service at issue in this appeal began on January 7, 2018, when the
agency appointed him to the temporary City Carrier Assistant position. 4 IAF,
Tab 6 at 31. The administrative judge found that he did not meet the definition of
an employee with chapter 75 appeal rights because, although the appellant was a
preference-eligible Postal Service employee in the excepted service, he did not
have 1 year of current continuous service at the time of his termination. ID
at 2-3. On review, the appellant argues, as he did below, that the agency did not
terminate him until March 2019 and that he therefore completed 1 year of current
continuous service prior to his termination. PFR File, Tab 1. In support of this
contention, the appellant points to the following: PS Forms 50 processed in
February and March 2019, IAF, Tab 6 at 4, Tab 11 at 5; “check stubs” dated
every 2 weeks between December 2018 and March 2019 showing his address and

capacity. 5 U.S.C. § 7511(b)(8); 39 U.S.C. § 1005(a)(4)(A)(ii)(I); Winns, 124 M.S.P.R.
113, ¶ 8 n. 4. The appellant has not alleged, and the record does not reflect, that he was
employed in any of these capacities.
3
A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
4
As noted above, there was a 6-day break in service between the end of the appellant’s
first appointment and the beginning of the appointment immediately preceding the
termination at issue in this appeal. IAF, Tab 6 at 31-33. In light of this break in
service, the appellant’s service in his first appointment cannot be tacked onto his
current service for purposes of satisfying the 1 year of current continuous service
requirement, even if it was in the same or a similar position. See 5 U.S.C. § 7511(a)(1)
(B)(ii); 5 C.F.R. § 752.402.
5

a return address for the agency but no information regarding pay or benefits, IAF,
Tab 16 at 1-3; a March 8, 2019 letter from the agency explaining that, once his
separation was updated to the payroll system, he would receive payment for his
earned annual leave balance, i.e., “terminal leave,” and for any work he
performed during his final pay period, IAF, Tab 11 at 6; and a detailed paystub
from March 22, 2019, reflecting a lump sum terminal leave payment for 24 hours,
PFR File, Tab 1 at 3. 5
The Board has recognized that, under a practice that appears to be unique
to the U.S. Postal Service, when a bargaining unit employee grieves a removal,
the agency ordinarily carries the employee on the rolls beyond the date that the
removal was set to become effective until the grievance is resolved. McGarrity v.
U.S. Postal Service, 103 M.S.P.R. 610, ¶ 2 (2006). This appears to be the case
here. As noted above, the decision letter issued on November 28, 2018, indicates
that “[s]ince a grievance has been filed on your behalf, the removal is deferred
until your appeal rights have been exhausted.” IAF, Tab 6 at 6. In addition, the
agency states on review that, “[a]fter the grievance process was completed and
the appeal period had passed without an appeal, [the agency] cut the Form 50
separating Complainant effective December 21, 2018.” PFR File, Tab 3 at 4.
Generally, when the Postal Service retains an appellant on its rolls in a
non-pay status pending the final disposition of a grievance, the Board views the
employee’s termination as constructively effective on the effective date in the
decision letter, not the date when the employee is eventually separated from the
agency’s rolls. McNeil v. U.S. Postal Service, 98 M.S.P.R. 18, ¶ 9 (2004). While
the November 28, 2018 decision letter here did not specify an effective date for
5
The appellant submitted the March 22, 2019 paystub for the first time on review. PFR
File, Tab 1. Under 5 C.F.R. § 1201.115, the Board will generally 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. Avansino v.
U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). Although the appellant has not shown
that he could not have submitted the March 22, 2019 paystub before the record closed
below despite his due diligence, we find it appropriate to consider this evidence under
the circumstances of this case.
6

the appellant’s termination, it informed him that the deciding official determined
that his termination was warranted and that he had the right to challenge it by
filing a Board appeal or equal employment opportunity complaint. IAF, Tab 6
at 5-6. Thus, upon the issuance of the decision letter, the appellant’s
termination was conclusive, final, and effective in the sense that it was subject
only to reversal or modification by settlement, appeal, or grievance. See
Benjamin v. U.S. Postal Service, 29 M.S.P.R. 555, 557 (1986). We note that the
March 8, 2019 PS Form 50 reflects that the appellant was terminated from his
position effective December 21, 2018, which the agency asserts on review is
when the grievance process was completed, and that it was his last day in pay
status. 6 IAF, Tab 6 at 4; PFR File, Tab 3 at 4. We need not resolve, however,
whether the appellant’s termination was effective upon the issuance of the
November 28, 2018 decision letter or, as the PS Form 50 reflects, upon the
completion of the grievance process on December 21, 2018, because he had less
than 1 year of current continuous service on both dates. See 5 U.S.C. § 7511(a)
(1)(B)(ii).
As noted above, in arguing that he was not terminated until March 2019,
the appellant relies on documentation generated after December 21, 2018,
including the PS Forms 50, partial paystubs, a letter regarding terminal leave and
his final paycheck, and the March 22, 2019 paystub reflecting payment for
24 hours of terminal leave. IAF, Tab 11 at 5-6, Tab 16 at 1-3; PFR File, Tab 1
at 3. These documents, however, do not establish that the appellant was an active
employee or in a pay or duty status at any time after December 21, 2018. Rather,
they show only that the agency took ministerial steps to remove him from the
rolls in the months after the issuance of the decision letter and the completion of
the grievance process. The delayed administrative act of removing him from the

6
In addition, a February 28, 2019 PS Form 50 purports to cancel “[Notice of Action
(NOA)] 925” in order to process the appellant’s separation effective December 21,
2018. IAF, Tab 11 at 5. It is unclear what personnel action NOA 925 refers to, and the
parties have not offered any explanation.
7

agency’s rolls does not change the fact that his removal was effective either upon
the issuance of the decision letter on November 28, 2018, or on December 21,
2018, which the agency contends was his last day in pay status. See Hopkins v.
U.S. Postal Service, 108 M.S.P.R. 25, ¶¶ 9-10 (2008) (explaining that, when the
Postal Service maintains an employee on the rolls in non-pay status until the final
disposition of a grievance, the delayed administrative act of removing him from
the rolls does not change the fact that the removal was effective as of the date set
forth in the decision letter).
In light of the foregoing, we find no basis to disturb the administrative
judge’s determination that the appellant did not have 1 year of current continuous
service at the time of his termination and that he therefore does not meet the
definition of an employee with the right to appeal his termination to the Board
under section 7511(a)(1)(B). Thus, she properly dismissed this appeal for lack of
jurisdiction.

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
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.

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 any matter.
8

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
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.
9

(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. 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:
10

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
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).

8
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.
11

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.
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10501292. Public record. Not legal advice.