The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAKESHA BRYANT, DOCKET NUMBER
Appellant, DE-3443-16-0127-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: April 28, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lakesha Bryant, Kansas City, Kansas, pro se.
Brian J. Odom, Esquire, Denver, Colorado, 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
dismissed her appeal for lack of jurisdiction. 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 erroneous interpretation of statute or
regulation or the erroneous application of the law to the facts of the case; the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 On December 22, 2015, the appellant filed an apparently untimely appeal
challenging her August 21, 2015 termination during her probationary period.
Initial Appeal File (IAF), Tab 1. The administrative judge advised the parties of
the timeliness issue and ordered the appellant to provide evidence and argument
to show that the appeal was timely filed or that there was good cause to waive the
filing deadline. IAF, Tab 3. The administrative judge also advised the appellant
that the Board may not have jurisdiction over her appeal as a U.S. Postal Service
employee. IAF, Tab 2. The agency filed a motion to dismiss the appeal for lack
of jurisdiction. IAF, Tab 6. The appellant filed responses in support of her
claims regarding the merits of her appeal and she asserted allegations of
discrimination and retaliation. IAF, Tabs 7-12, 14-15.
¶3 The administrative judge found that the appellant failed to establish that:
(1) she was not preference eligible, a management or supervisory employee, or an
employee engaged in personnel work in other than a purely nonconfidential
clerical capacity; and (2) that she completed 1 year of current, continuous service
in the same or similar positions. IAF, Tab 16, Initial Decision (ID) at 3. Thus,
without addressing the timeliness issue, the administrative judge dismissed the
appeal for lack of jurisdiction.
3
¶4 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). For a U.S. Postal Service
employee to be entitled to appeal a removal under 5 U.S.C. chapter 75, he must:
(1) 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 (2) have completed 1 year of current continuous service in
the same or similar positions. See 39 U.S.C. § 1005(a); 5 U.S.C.
§ 7511(a)(1)(B)(ii); Clark v. U.S. Postal Service, 118 M.S.P.R. 527, ¶ 7 (2012);
Toomey v. U.S. Postal Service, 71 M.S.P.R. 10, 12 (1996). For the purpose of
this appeal, a “preference eligible” veteran is defined under 5 U.S.C. § 2108 as an
individual who served on active duty in the armed forces during one of several
proscribed periods and who was discharged or released from active duty “under
honorable conditions.”
¶5 On review, the appellant challenges the merits of the removal action and she
has submitted numerous documents that were not submitted below. Petition for
Review (PFR) File, Tabs 1, 3. These documents include the appellant’s statement
of what transpired during her employment, statements and emails from
coworkers, medical documents in support of several of her absences, her
performance evaluation, and time sheets reflecting her absences and shift change.
However, under 5 C.F.R. § 1201.115, the Board 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.
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). Because the
appellant has failed to show that these documents were unavailable to her prior to
the close of the record below, we have not considered them. 2 Moreover, the
2
On review, the appellant also has submitted a copy of an email response dated
January 7, 2016, from the agency’s Office of Inspector General Hotline acknowledging
that she filed a Hotline Complaint with it. PFR File, Tab 3 at 10. The email simply
4
appellant’s arguments do not challenge any of the administrative judge’s findings
on the jurisdictional issue. Rather, all of her arguments and the documents she
submitted on review address the merits of her appeal.
¶6 The applicable law and the record evidence support the administrative
judge’s findings that the appellant, who was terminated during her probationary
period, is not a preference eligible, and there is no evidence that she was a
management or supervisory employee, or an employee engaged in personnel work
in other than a purely nonconfidential clerical capacity, and that she completed
1 year of current, continuous service in the same or similar positions. ID at 3-4.
Therefore, we discern no reason to disturb these explained findings. See Crosby
v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to
disturb the administrative judge’s findings where she considered the evidence as
a whole, drew appropriate inferences, and made reasoned conclusions);
Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359
(1987) (same). Accordingly, we find that the administrative judge correctly
dismissed this appeal for lack of jurisdiction. 3
thanked the appellant for the information she provided and stated that, “[w]hile we
can’t guarantee we can recover lost money or items, your information can help alert
Investigators to problem areas and possibly prevent others from being victimized. Your
concern has been received and documented in our data base.” Id. Even if the Board
were to find this response to be new, it is not material as it does not show that the
Board has jurisdiction over this appeal. See Russo v. Veterans Administration,
3 M.S.P.R. 345, 349 (1980) (finding that the Board will not grant a petition for review
based on new evidence absent a showing that it is of sufficient weight to warrant an
outcome different from that of the initial decision).
3
While the administrative judge noted that both timeliness and jurisdiction are at issue
in this case, he dismissed the appeal without addressing the timeliness issue. Because
the administrative judge correctly found that the Board does not have jurisdiction over
this appeal, we find he did not commit error in apparently declining to make a finding
as to whether it was timely filed. ID at 1.
5
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to 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 U.S. 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 U.S. 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
Circuit. 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.