The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL G. BIELUCH, DOCKET NUMBER
Appellant, NY-4324-15-0140-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: December 15, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Michael G. Bieluch, Jersey City, New Jersey, pro se.
Leslie L. Rowe, Esquire, New York, New York, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
found that he failed to establish jurisdiction over a reduction in force (RIF) or
Veterans Employment Opportunities Act of 1998 (VEOA) appeal, and which
denied his Uniformed Services Employment and Reemployment Rights Act of
1994 (USERRA) claim on the merits. Generally, we grant petitions such as this
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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one only when: 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 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, 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. Except as expressly MODIFIED by this Final Order to find that, even
if the appellant had established jurisdiction over a RIF appeal, the issue would be
moot, infra ¶ 9, we AFFIRM the initial decision.
¶2 The appellant is a preference-eligible PS-09 Building and Equipment
Mechanic for the agency. Initial Appeal File (IAF), Tab 10 at 6. On or about
January 30, 2015, the agency notified the appellant that there was excess
maintenance staff and that his position had been identified for elimination. IAF,
Tab 1 at 10. The notification letter informed the appellant that he would be given
his choice of available assignments, and if he did not select an assignment, he
would become an unassigned regular. Id. The letter emphasized several times
that, as a preference-eligible veteran, the appellant had a right to retain his wage
level and was under no obligation to bid for an assignment at a lower wage level.
Id. Effective May 21, 2015, the agency assigned the appellant to a PS-04 Laborer
Custodial position with saved grade and pay. IAF, Tab 10 at 7, Tab 36 at 5.
¶3 The appellant filed a Board appeal, arguing that the agency violated his
rights as a veteran when it made him take the Laborer Custodial position but
allowed a nonveteran, junior in seniority employee to transfer to another Building
and Equipment Mechanic position. IAF, Tab 1 at 6, Tab 6 at 2, Tab 10 at 7, Tab
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13 at 2-3, Tab 15 at 4, Tab 24 at 3-4. He also argued that the agency effectively
subjected him to a RIF. IAF, Tab 6 at 2. The appellant waived his right to a
hearing. IAF, Tab 28 at 1. During the pendency of the appeal, the agency
cancelled the personnel action assigning the appellant to the Laborer Custodial
position and restored him to a Building and Equipment Mechanic position. IAF,
Tab 19 at 6, Tab 36 at 5. However, the administrative judge declined to dismiss
the appeal as moot because the appellant remained in an unassigned regular
position, as opposed to his former bid position, and still could obtain relief in that
regard under USERRA. IAF, Tab 38, Initial Decision (ID) at 3-4.
¶4 The administrative judge issued an initial decision addressing the
appellant’s case under three theories: RIF, VEOA, and USERRA. ID. The
administrative judge found that the appellant did not suffer an appealable RIF
action because he voluntarily applied for, and accepted, the Laborer Custodial
position even though the agency had informed him that he had the option to
remain an unassigned regular Building and Equipment Mechanic. ID at 4-5. The
administrative judge also found that the appellant failed to establish jurisdiction
over a VEOA claim because he had not filed a complaint with the Department of
Labor (DOL) on the matter. ID at 5-6. Finally, the administrative judge found
that the appellant failed to prove his USERRA claim because the comparison
employee who received a transfer to another Building and Equipment Manager
position previously had applied for the transfer in a process that was open to all
employees, including the appellant. ID at 10-11. Thus, the administrative judge
determined that the appellant did not establish either that he was treated
differently than a similarly situated nonveteran or that his military service was a
motivating factor in the agency’s action. ID at 11.
¶5 The appellant has filed a petition for review, disputing the administrative
judge’s findings on his RIF and VEOA claims. PFR File, Tab 1. The agency has
not filed a response.
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The appellant was not subjected to an appealable reduction-in-force action.
¶6 An agency is required to use RIF procedures when it releases a competing
employee from his competitive level by furlough for more than 30 days,
separation, demotion, or reassignment requiring displacement, when the release is
required because of lack of work or reorganization. 5 C.F.R. § 351.201(a)(2).
Voluntary acceptance of a lower-graded position generally does not constitute an
appealable RIF action. Torain v. U.S. Postal Service, 83 F.3d 1420, 1422-23
(Fed. Cir. 1996). However, voluntary acceptance of a lower-graded position may
constitute an appealable RIF action if the assignment was made after the agency
had informed the employee that his original position had been abolished and that
he had not been selected for assignment to a position at his former grade level.
Harants v. U.S. Postal Service, 130 F.3d 1466, 1469 (1997). In this case, the
agency excessed employees in the appellant’s work unit “in order to properly
align the staffing.” IAF, Tab 1 at 10. However, it expressly stated that it was not
conducting a RIF and, therefore, the appellant would remain at the same wage
level, albeit as an unassigned regular, and that he would not be required to bid for
a lower level assignment. Id.
¶7 On review, the appellant argues that several affected employees remain in
lower-graded positions beyond 30 days and that the agency therefore should have
used RIF procedures. PFR File, Tab 1 at 1-2. However, there is no evidence
regarding the circumstances of these employees’ demotions, i.e., that they were
involuntary or that the agency informed them that they had not been selected for
reassignment to positions at their former grade levels. Moreover, even if these
employees were subjected to appealable RIF actions within the meaning of
5 C.F.R. part 351, this fact is immaterial to a showing that the appellant himself
was affected by such an action. Although the record is not particularly well
developed regarding the circumstances of the appellant’s acceptance of the
Laborer Custodial position, he appears to have indicated that he made the choice
to accept that position in lieu of reassignment to another Building and Equipment
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Mechanic position in another facility. IAF, Tab 13 at 3. Although the appellant
asserts that he lacked sufficient information to make an informed decision, we
find that the agency’s January 30, 2015 letter was clear enough about what his
options were. IAF, Tab 1 at 10. Moreover, there is no indication that the agency
supplied the appellant with affirmative misinformation or that it failed to provide
him additional information on request. Thus, we find that the appellant’s
acceptance of that position was voluntary and that the agency had not informed
him that he had not been selected for another position at his current grade level.
For this reason, we agree with the administrative judge that the appellant was not
subjected to an appealable RIF action. See Cooley v. U.S. Postal Service,
68 M.S.P.R. 353, 357-58 (1995); Roche v. U.S. Postal Service, 67 M.S.P.R. 141,
146-47 (1995), aff'd, 80 F.3d 468 (Fed. Cir. 1996).
¶8 The appellant also disputes an analogy that the administrative judge made to
his situation and to detail assignments. PFR File, Tab 1 at 1. Specifically, the
administrative judge found that the appellant’s assignment to the Laborer
Custodial position at saved grade and pay for a period of 82 days was tantamount
to a temporary detail, and therefore, under Board law, did not constitute an
appealable RIF action. ID at 5; IAF, Tab 10 at 7, Tab 26 at 9. The appellant
argues, however, that under the agency’s rules, a temporary detail is not to exceed
90 days and that other employees affected by the excessing have been serving in
lower-graded positions for more than 90 days. PFR File, Tab 1 at 1. Thus, the
agency ostensibly subjected them to RIF actions. Id. However, we again find
that evidence of what happened to other employees during the excessing process
is immaterial to whether the appellant himself was affected by an appealable RIF
action. In any event, regardless of whether the administrative judge’s analogy is
accurate, we find that the appellant was not subjected to an appealable RIF action
because his acceptance of the Laborer Custodial position was voluntary, and the
agency had not informed him that he had not been selected for another position at
his current grade level. Supra ¶ 7.
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¶9 Moreover, even if the appellant’s placement in the Laborer Custodial
position was an appealable RIF action, we would find that the matter is moot.
See Uhlig v. Department of Justice, 83 M.S.P.R. 29, ¶ 7 (1999) (stating that an
appeal will be dismissed as moot where the appellant has obtained all of the relief
he could have obtained had he prevailed before the Board, or where there is no
further relief the Board can grant); Mobery v. Department of the Navy,
65 M.S.P.R. 110, 113 (1994) (explaining that, when an agency completely
rescinds an adverse action after an appeal is filed, the appeal is rendered moot
and the Board is divested of jurisdiction). The undisputed record shows that,
during the pendency of the appeal, the agency retroactively canceled the
appellant’s placement in the Laborer Custodial position and restored him to a
Building and Equipment Mechanic position. IAF, Tab 19 at 6, Tab 36 at 3. In
addition, because the appellant took the Laborer Custodial position at saved grade
and pay, it does not appear that he suffered a loss of any pay or benefits. IAF,
Tab 10 at 6, Tab 19 at 6. We therefore find that the agency’s cancellation of the
action rendered the appeal moot and the Board could offer the appellant no
further relief from an agency RIF action. See Flores v. U.S. Postal Service,
75 M.S.P.R. 546, 547, 552 (1997) (discussing status quo ante relief for a RIF
demotion).
The Board lacks jurisdiction over this appeal under VEOA.
¶10 To establish Board jurisdiction over an appeal brought under VEOA, an
appellant must, among other things, show that he exhausted his administrative
remedy with DOL. Graves v. Department of Veterans Affairs, 117 M.S.P.R. 491,
¶ 8 (2012). The first step of the exhaustion process is for the appellant to file a
complaint with DOL containing a summary of the allegations that form the basis
of the complaint. Graves, 117 M.S.P.R. 491, ¶ 8; see 5 U.S.C. § 3330a(a)(2)(B).
¶11 On review, the appellant concedes that he did not file a veterans’ preference
complaint with DOL. PFR File, Tab 1 at 2. He argues, however, that before he
filed his Board appeal, he discussed the matter with a DOL official who advised
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him to file a Board appeal instead of a veterans’ preference complaint with DOL.
Id. The appellant is making this argument for the first time on petition for review
even though he had notice of the issue well before the administrative judge issued
his initial decision. IAF, Tab 12 at 3-4. Therefore, the Board will not consider it.
See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (finding
that the Board 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).
The appellant did not prove his USERRA claim.
¶12 The administrative judge determined that the appellant failed to prove a
USERRA violation. ID at 8-11. Although the appellant does not challenge
directly the administrative judge’s findings on this claim, we agree with the
administrative judge’s analysis as to this allegation. To prevail on the merits of a
USERRA discrimination claim under 38 U.S.C. § 4311(a), an appellant must
prove by preponderant evidence that his uniformed service was a substantial or
motivating factor in the agency action. Burroughs v. Department of the Army,
120 M.S.P.R. 392, ¶ 5 (2013). Although the administrative judge found that the
appellant established jurisdiction over his USERRA claim, ID at 2, he also found
that the appellant failed to show that the agency treated him differently than any
similarly situated nonveteran or that its actions were otherwise motivated by
anti-military animus, ID at 9-11. The appellant does not appear to challenge the
administrative judge’s finding on this particular point, and for the reasons
explained in the initial decision, we agree with the administrative judge that the
appellant’s USERRA claim must be denied.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
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request review of this final decision by the U.S. 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 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 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 court. The
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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.