Lillie L. Jackson v. Department of Justice

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LILLIE L. JACKSON, DOCKET NUMBER

Appellant, DA-3443-14-0104-I-1

v.

DEPARTMENT OF JUSTICE, DATE: September 5, 2014

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Lillie L. Jackson, Beaumont, Texas, pro se.

George Cho, Esquire, Grand Prairie, Texas, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed for lack of jurisdiction her appeal of her performance appraisal.

Generally, we grant petitions such as this one only when: 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 this appeal, and based on the

following points and authorities, 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).

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant is employed with the agency’s Federal Bureau of Prisons as a

GS-11 Quality Assurance Specialist. Initial Appeal File (IAF), Tab 5 at 22. On

November 24, 2013, she filed this appeal in which she contended that the agency

retaliated against her for filing equal employment opportunity (EEO) complaints

and for whistleblowing. IAF, Tab 1 at 5, Tab 8 at 4-5. In addition, she alleged

that the agency discriminated against her based on her race, sex, and age. IAF,

Tab 1 at 7, Tab 8 at 4. The gravamen of her claim is that she disagreed with a

performance appraisal rating she received in April 2013. 2 IAF, Tab 1 at 5, 7, Tab

8 at 4. The appellant was given a rating of “Achieved Results” and she claimed

that in over 16 years of service with the agency she never received a performance

appraisal rating of less than “Exceeds.” IAF, Tab 1 at 5. Further, she argued

2

The appellant has made a variety of additional allegations related to her pay and the

agency’s assessment of her performance. IAF, Tab 1 at 5. However, because the exact

nature of these allegations does not impact the outcome of this appeal, we do not detail

them here. See generally 5 C.F.R. §§ 1201.2, 1201.3(a)-(b) (listing those matters over

which the Board has jurisdiction).

3

that, by rating her on a performance measure that is not applicable to her position,

her supervisor did not follow agency policy. IAF, Tab 8 at 6.

¶3 The appellant did not request a hearing. IAF, Tab 1 at 2. The

administrative judge issued an acknowledgment order and an order to show cause,

which provided the appellant with information concerning her burden of proving

jurisdiction. IAF, Tab 2 at 2, Tab 6. The orders indicated that the appellant must

show that the matter being appealed was an “otherwise appealable action,” and

informed her that she did not appear to have been subjected to any personnel or

adverse action over which the Board has jurisdiction. 3 IAF, Tab 2 at 2, Tab 6 at

2.

¶4 The administrative judge’s orders did not fully inform the appellant of what

is required to establish an appealable jurisdictional issue under the

Whistleblower Protection Enhancement Act (WPEA). IAF, Tabs 2, 6. The Board

has held, however, that such a deficiency can be cured if the agency’s pleadings

contain the notice that was otherwise lacking, which would afford the appellant an

opportunity to meet her jurisdictional burden. Nichols v. Department of the

Interior, 69 M.S.P.R. 386, 388-89 (1996). We find that the agency’s response on

3

Although the appellant alleged that the agency subjected her to “adverse personnel

actions on a daily basis,” the administrative judge did not provide specific information

on what is required to establish jurisdiction over an adverse action claim under chapter

75 of Title 5. IAF, Tab 1 at 5. An appellant must receive explicit information on what

is required to establish an appealable jurisdictional issue. Burgess v. Merit Systems

Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). However, in this instance,

the administrative judge’s omission of this information is harmless error because the

appellant has not identified, either below or on petition for review, any adverse action

that falls within the scope of chapter 75. See Panter v. Department of the Air Force,

22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not prejudicial to a party’s

substantive rights provides no basis for reversal of an initial decision); see also

5 U.S.C. § 7512(1)-(5) (listing actions covered by chapter 75). Instead, the appellant

has claimed that the adverse action is the performance evaluation that is discussed

above. Petition for Review (PFR) File, Tab 1 at 7 (“The AJ has . . . failed to identified

[sic] and classify Appellant’s downgraded performance evaluation as an adverse action,

prohibited personnel practice.”)

4

jurisdiction properly informed the appellant of her burden to prove jurisdiction

under the WPEA. IAF, Tab 7 at 5-7.

¶5 After providing the parties with the opportunity to respond to the orders, the

administrative judge issued an initial decision dismissing the appeal for lack of

jurisdiction. IAF, Tab 9, Initial Decision (ID) at 1, 4. The administrative judge

found that although the appellant was unsatisfied with the performance rating of

“Achieved Results,” she had not been subjected to any personnel action over

which the Board had jurisdiction and, in the event she was alleging that she was a

whistleblower, she had not exhausted her remedies with the Office of Special

Counsel (OSC). ID at 4.

¶6 The appellant has timely filed a petition for review. PFR File, Tab 1. The

agency has filed a response, and the appellant has filed a reply. PFR File, Tabs

3-4.

The administrative judge correctly found that the Board lacks jurisdiction over

the appeal.

¶7 The Board generally lacks jurisdiction over appeals from performance

appraisal ratings. Bambl v. Department of the Treasury, 113 M.S.P.R. 55, ¶ 9

(2010); Wein v. Department of the Navy, 37 M.S.P.R. 379, 381 (1988).

Disagreement with a performance appraisal, unaccompanied by an otherwise

appealable adverse action, is not independently appealable to the Board. Manley

v. Department of the Air Force, 91 F.3d 117, 119 (Fed. Cir. 1996). However, the

Board could have jurisdiction over such an appeal as an individual right of action

(IRA) appeal alleging reprisal for whistleblowing. Bambl, 113 M.S.P.R. 55, ¶ 9.

The Board has jurisdiction over an IRA appeal if the appellant exhausts her

administrative remedies before OSC and makes nonfrivolous allegations that:

(1) she engaged in whistleblowing activity by making a protected disclosure as

defined by 5 U.S.C. § 2302(a), (b)(9)(A)(i), (B), (C), or (D), and (2) the

disclosure was a contributing factor in the agency’s decision to take or fail to take

5

a personnel action as defined by 5 U.S.C. § 2302(a). 5 U.S.C. § 1214(a)(3);

Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).

¶8 An appellant has not exhausted her OSC remedy unless she filed a

complaint with OSC and either OSC notified her that it was terminating its

investigation of her allegations or 120 calendar days have passed since she first

sought corrective action. 5 U.S.C. § 1214(a)(3); Simnitt v. Department of

Veterans Affairs, 113 M.S.P.R. 313, ¶ 8 (2010). In the instant case, the appellant

had not filed a whistleblowing complaint with OSC at the time her appeal was

dismissed. IAF, Tab 1 at 4. Therefore, we agree with the administrative judge

that she did not exhaust her OSC remedy, and the Board lacked jurisdiction over

her claim of reprisal for whistleblowing as an IRA appeal.

¶9 On review, the appellant asserts that the administrative judge incorrectly

evaluated her whistleblower claim as an IRA appeal and that the administrative

judge should have assessed her claim as an “otherwise appealable action.” PFR

File, Tab 1 at 5. The appellant is correct that an employee who alleges that she

has been subjected to an action appealable to the Board and retaliated against for

whistleblowing may elect to file an appeal to the Board under 5 U.S.C. § 7701.

Edwards v. Department of the Air Force, 120 M.S.P.R. 307, ¶ 12 (2013).

However, as discussed earlier, dissatisfaction with a performance appraisal is

generally not an appealable action. See 5 U.S.C. §§ 7512(1)-(5) (listing adverse

actions appealable to the Board), 7513(d) (reflecting the right to appeal an

adverse action to the Board). Therefore, we agree with the administrative judge

that the Board does not have jurisdiction over the appellant’s claim of reprisal for

whistleblowing because she has not shown that she was subjected to an otherwise

appealable action.

¶10 The appellant cites to statements from the Department of Justice’s (DOJ’s)

website to support her allegation that her claim is directly appealable to the Board

as a whistleblower appeal connected with an otherwise appealable action. PFR

6

File, Tab 1 at 5. However, the language cited indicates that an otherwise

appealable action arises when an “individual is subject to a personnel action that

is directly appealable to the Board.” 4 Id. This language is consistent with the

requirements of the WPEA discussed above and does not support the appellant’s

claim of Board jurisdiction.

¶11 Further, the Board has no jurisdiction over the appellant’s claims that the

agency discriminated against her based on race, sex, and age, and retaliated

against her for her EEO activity. Allegations of discrimination do not provide the

Board with an independent source of jurisdiction. Lethridge v. U.S. Postal

Service, 99 M.S.P.R. 675, ¶ ¶ 8-12 (2005); see Perlmutter v. Department of the

Air Force, 41 M.S.P.R. 38, 39 (1989) (finding that the appellant failed to meet his

burden of proof to establish Board jurisdiction over his performance rating and

that the Board could not hear his discrimination complaint absent an otherwise

appealable action).

¶12 The appellant alleges that she has filed a timely “mixed case” complaint

with the agency’s EEO office, thus complying with “Board timeframes.” PFR

File, Tab 4 at 5. A mixed case complaint is a complaint of employment

discrimination filed with an agency relating to or stemming from an action that

can be appealed to the Board. Moore v. Department of Justice, 112 M.S.P.R. 382,

¶ 4 n.4 (2009); 29 C.F.R. § 1614.302(a)(1). However, the appellant’s election to

file an EEO complaint is not relevant to the jurisdictional issue in this instance

because her complaint of discrimination does not relate to or stem from an action

appealable to the Board. Therefore, her claim is not a mixed appeal because a

4

Even if DOJ’s website included statements expanding the scope of the Board’s

jurisdiction, the Board would not be bound by it because the Board’s jurisdiction is

limited to those areas over which it has been given jurisdiction by statute or regulation,

and the parties to an appeal cannot expand that jurisdiction. Caple v. U.S. Postal

Service, 52 M.S.P.R. 262, 266 n.4 (1992), modified holding by Peartree v. U.S. Postal

Service, 66 M.S.P.R. 332 (1995).

7

mixed appeal involves both an appealable matter and a claim of discrimination.

See Conforto v. Merit Systems Protection Board, 713 F.3d 1111, 1118 (Fed. Cir.

2013) (citing 5 U.S.C. § 7702(a)(1)). Because the appellant has not shown that

she suffered any appealable action, the Board does not have jurisdiction over this

claim as a mixed appeal. See King v. Reid, 59 F.3d 1215, 1218 (Fed. Cir. 1995)

(the Board can decide an issue of discrimination only when it is the basis of an

agency action that is appealable to the Board).

¶13 On review, the appellant seeks to submit new evidence into the record

including her alleged whistleblowing statement to the assistant director, her

various performance based awards, and materials regarding whistleblowing not

specific to her claims. PFR File, Tab 1 at 15-30. The Board will consider new

and material evidence submitted with a petition for review only if it was

unavailable before the record was closed despite the party’s due

diligence. 5 C.F.R. § 1201.115(d). The Board will not consider new evidence

where an appellant fails to explain why it was unavailable before the record

closed. See Winkelvoss v. Office of Personnel Management, 19 M.S.P.R. 585,

588 (1984). In the instant case, the appellant does not state that the new evidence

was unavailable before the record closed. Moreover, this evidence is not material

because it does not show that the appellant suffered any appealable action.

Evidence is material if it is of sufficient weight to warrant an outcome different

from that of the initial decision. Russo v. Veterans Administration, 3 M.S.P.R.

345, 349 (1980). Therefore, because the appellant has not shown that the new

evidence was unavailable before the record closed, and the evidence is not

material, we decline to consider it.

¶14 The appellant also submits with her petition for review an email

acknowledgment from OSC of her filed complaint dated March 10, 2014, which is

2 months after the issuance of the initial decision. PFR File, Tab 4 at 10. The

Board’s practice is to adjudicate an appeal that was premature when it was filed

8

but becomes ripe while pending with the Board. Jundt v. Department of Veterans

Affairs, 113 M.S.P.R. 688, ¶ 7 (2010). Because 120 calendar days have passed

since the appellant first sought corrective action with OSC, she has exhausted her

administrative remedies and the Board now has jurisdiction to adjudicate her IRA

appeal. Id. We therefore FORWARD the case to the regional office for

adjudication. However, we find no reason to disturb the administrative judge’s

initial decision in this appeal and therefore deny the petition for review.

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

9

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

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.