# Natasha S Lemaitre v. Department of Homeland Security

> Merit Systems Protection Board · August 8, 2024

URL: https://www.frixlaw.com/law-library/cases/10502372

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** August 8, 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- **Precedential status:** Unpublished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

NATASHA S. LEMAITRE, DOCKET NUMBER
Appellant, NY-752S-20-0250-I-1

v.

DEPARTMENT OF HOMELAND DATE: August 8, 2024
SECURITY,
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Natasha S. LeMaitre , Brooklyn, New York, pro se.

Michelle L. Perry , Esquire, Washington, D.C., 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 her 4-day 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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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).

BACKGROUND
The agency suspended the appellant, a Management and Program Analyst,
for 4 days based on a charge of failure to follow supervisory instructions. Initial
Appeal File (IAF), Tab 1 at 37-40. The appellant filed this appeal of her
suspension to the Board, identifying herself as preference eligible and alleging
reprisal. Id. at 1-3, 5. She requested a hearing on the matter. 2 Id. at 2.
The administrative judge informed the appellant that the Board generally
lacks chapter 75 jurisdiction over appeals involving suspensions of 14 days or
less. IAF, Tab 6. She explained, however, that the Board might have jurisdiction

2
The appellant filed a prior appeal challenging her demotion from the position of
Management and Program Analyst, GS-12, to the GS-11 level, which the administrative
judge dismissed as settled. LeMaitre v. Department of Homeland Security ,
MSPB Docket No. NY-0752-20-0237-I-1, Initial Decision at 1-2 (Apr. 26, 2021). The
settlement agreement did not resolve or preclude the instant appeal. LeMaitre v.
Department of Homeland Security, MSPB Docket No. NY-0752-20-0237-I-1, Initial
Appeal File, Tab 35. Further, neither party petitioned for review from the decision
dismissing that appeal, and it is now the final decision of the Board. See 5 C.F.R.
§ 1201.113 (reflecting that an initial decision generally becomes the Board’s final
decision 35 days after it is issued absent a petition for review). The appellant’s prior
appeal is not relevant to the issues raised in the instant appeal.
3

if the appellant was raising her suspension in conjunction with a Uniformed
Services Employment and Reemployment Rights Act of 1994 (USERRA) appeal
or an individual right of action (IRA) appeal, and she ordered the appellant to file
evidence and argument regarding jurisdiction. Id. In response to this order, the
appellant repeated that the agency suspended her in reprisal for unidentified
activities, possibly including filing an equal employment opportunity (EEO) or
Office of Inspector General (OIG) complaint. IAF, Tab 1 at 5, Tab 9 at 3.
She stated that she was appealing the reprisal, not her suspension or “the number
of days [she] was suspended.” IAF, Tab 9 at 3. Without holding the appellant’s
requested hearing, the administrative judge issued an initial decision dismissing
the appeal for lack of jurisdiction, finding that it did not fall within any
recognized exception to the general rule that the Board lacks jurisdiction over a
4-day suspension. IAF, Tab 10, Initial Decision (ID) at 1, 3-4.
The appellant has filed a petition for review of the initial decision.
Petition for Review (PFR) File, Tab 1. The agency has filed a response to the
appellant’s petition. PFR File, Tab 3. 3

DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly determined that the appellant failed to make a
nonfrivolous allegation of chapter 75 or USERRA jurisdiction.
The Board’s jurisdiction 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). A suspension of more than
3
The appellant has also filed a motion for leave to file an additional pleading alleging
that after the record closed on review the agency “purposely entered” into her electronic
Official Personnel File two Standard Forms 50 (SF-50s) reflecting her suspension.
PFR File, Tab 4 at 4. However, this allegation does not change the outcome in this
case. Once the record on review closes, the Board will not accept additional evidence
or argument absent a showing that it was new, material, and not readily available before
the record closed. 5 C.F.R. § 1201.114(k). The SF-50s are not material evidence
because they would not warrant an outcome different from that of the initial decision.
See Le v. U.S. Postal Service, 114 M.S.P.R. 430, ¶ 6 (2010). Specifically, they do not
establish Board jurisdiction over the appellant’s 4-day suspension. We, therefore, deny
the appellant’s motion.
4

14 days is within the Board’s chapter 75 jurisdiction, but a suspension of 14 days
or less is not an appealable adverse action. 5 U.S.C. §§ 7512(2), 7513(d);
Lefavor v. Department of the Navy, 115 M.S.P.R. 120, ¶ 5 (2010); McClure v.
U.S. Postal Service, 83 M.S.P.R. 605, ¶¶ 4, 6 (1999). The appellant does not
claim that the administrative judge erred in determining that her 4-day suspension
was not an appealable adverse action under chapter 75. PFR File, Tab 1 at 4; ID
at 3. She also does not dispute the administrative judge’s finding that she did not
allege that her suspension was due to her uniformed service, and thus she is not
raising a claim under USERRA. ID at 2-3; PFR File, Tab 1 at 4-5.
Accordingly, we discern no basis to disrupt these findings.
For the first time on review, the appellant raises a claim that the agency
wrote false statements on her performance appraisal and that her supervisor
signed it for her without her knowledge. 4 PFR File, Tab 1 at 5. The Board does
not have authority to adjudicate a performance evaluation “unaccompanied by an
otherwise appealable adverse action.” See 5 U.S.C. § 7512; Manley v.
Department of the Air Force, 91 F.3d 117, 119 (Fed. Cir. 1996); see 5 C.F.R.
§ 1201.3(a) (providing examples of matters within the Board’s appellant
jurisdiction). Thus, the Board lacks jurisdiction over this claim.

The administrative judge properly found that the Board lacks jurisdiction over the
matter as an IRA appeal.
The appellant reasserts on review that her appeal is “due to the reprisal and
not necessarily about the suspension or length of time [she] was suspended.”
PFR File, Tab 1 at 4. She reiterates her claim that her suspension was in reprisal
for making an OIG complaint against her leadership. Id. at 4-5; IAF, Tab 1 at 3,
5. The administrative judge found that the Board lacks jurisdiction as an IRA

4
We have considered the appellant’s new argument to the extent it concerns the issue of
the Board’s jurisdiction because jurisdiction can be raised at any time. See Pirkkala v.
Department of Justice, 123 M.S.P.R. 288, ¶ 5 (2016) (considering evidence submitted
for the first time on review because it was relevant to the Board’s jurisdiction).
5

appeal because the appellant failed to seek corrective action from OSC regarding
any reprisal claims. ID at 3-4. We agree.
To establish jurisdiction in an IRA appeal, an appellant must show by
preponderant evidence that she exhausted her remedies before the Office of
Special Counsel (OSC) and make nonfrivolous allegations of the following:
(1) she made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in a
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D);
and (2) the disclosure or protected activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302(a). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016).
Here, the appellant asserts that the agency issued the suspension decision a few
days after she filed an OIG complaint. PFR File, Tab 1 at 4. However, she has
not asserted any error in the administrative judge’s factual finding that she did
not seek correction with OSC. ID at 3-4; see Salerno, 123 M.S.P.R. 230, ¶ 5.
This finding is supported by the appellant’s initial appeal form, on which she
answered “no” to the question of whether she filed a whistleblower reprisal
complaint with OSC. IAF, Tab 1 at 4. Thus, we discern no basis to disrupt the
administrative judge’s finding that, in essence, the Board lacks IRA jurisdiction
over this appeal because the appellant failed to show she exhausted her
administrative remedies as required. ID at 3-4.
The appellant also reasserts claims of retaliation for filing internal
complaints of harassment and EEO complaints with the agency. PFR File, Tab 1
at 4. She also appears to claim reprisal for grievance activity. Id. However, the
Board does not have jurisdiction over her claims of harmful error, prohibited
personnel practices, or discrimination absent an otherwise appealable action.
Penna v. U.S. Postal Service, 118 M.S.P.R. 355, ¶ 13 (2012) (finding that, in the
absence of an otherwise appealable action, the Board lacks jurisdiction over
claims of harmful error, prohibited personnel practices, and discrimination);
Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980) (explaining that
6

prohibited personnel practices under 5 U.S.C. § 2302(b) are not an independent
source of Board jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).

The Board lacks jurisdiction over the agency’s record keeping related to the
appellant’s 4-day suspension.
For the first time on review, the appellant argues that the agency
fraudulently processed her suspension and alleges other errors related to her
electronic Official Personnel File (eOPF). PFR File, Tab 1 at 4-5. In particular,
she alleges that the agency did not add the suspension action to her eOPF but
“instructed [her] to enter the suspension days on to [her] timecard.” Id.
She further asserts that her eOPF shows that the agency gave her an award;
however, she contends that she did not receive it, asserting “[she] mentioned to
[an agency official] that the entire region was given awards except for [her] and
[she] was going to add that to [her] EEO complaint.” Id. at 5.
Because the Board lacks jurisdiction over the appellant’s 4-day suspension
or the denial of an award, it also lacks jurisdiction over the appellant’s claims
regarding her eOPF. See Young v. U.S. Postal Service, 113 M.S.P.R. 609, ¶ 40
(2010) (finding the Board does not have jurisdiction to adjudicate Privacy Act
related claims, unless the Act is implicated in matters over which the Board has
jurisdiction); Clark v. Department of the Air Force, 111 M.S.P.R. 477, ¶ 9 (2009)
(finding that the Board generally does not have jurisdiction over an appeal of a
denial of a performance related award, but recognizing an exception to this rule,
i.e., that it has authority to determine an appellant’s entitlement to such an award
as part of status quo ante relief); see also 5 U.S.C. § 552a(d)(2) (containing the
provision in the Privacy Act requiring agencies to consider an individual’s
request to correct a Privacy Act record). The documents the appellant provides
for the first time on review in support of these claims, specifically, the screen
captures of her eOPF and emails she exchanged with agency officials regarding
how to code her suspension on her timecard, are immaterial to the issue of
7

whether the Board has jurisdiction over this appeal. 5 Id. at 6-11. Thus, the
appellant new evidence and arguments provide no basis to disturb the initial
decision. See Luna v. Office of Personnel Management, 89 M.S.P.R. 465, ¶ 7
(2001) (declining to grant review based on arguments and documentary
submissions that did not address the dispositive jurisdictional issue in the appeal).

NOTICE OF APPEAL RIGHTS 6
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
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.

5
Some of these documents the appellant included with her petition for review are in the
record below and thus provide no basis to disturb the initial decision. PFR File, Tab 1
at 12-55; IAF Tab 1 at 7-35, 42-54; see Brough v. Department of Commerce,
119 M.S.P.R. 118, ¶ 4 (2013) (observing that the Board will grant a petition for review
based on new and material evidence under certain circumstances, but that evidence that
is already a part of the record is not new).
6
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

(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
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
9

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

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:
10

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. 7 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

7
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

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/10502372. Public record. Not legal advice.