The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARMEN GOTTLIEB, DOCKET NUMBER
Appellant, NY-3443-15-0168-I-1
v.
DEPARTMENT OF LABOR, DATE: June 29, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Carmen Gottlieb, Charlotte, North Carolina, pro se.
Donyell Marie Thompson, Esquire, and Sharon Bogart, 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
dismissed the appeal for lack of Board 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 On March 31, 2015, the appellant, a Wage and Hour Technician,
GS-1802-06, filed this appeal alleging that the agency denied her request for a
geographic reassignment from Westbury, New York, to one of the agency’s North
Carolina offices. 2 Initial Appeal File (IAF), Tab 1 at 1-2, 7-14. The appellant
sought the reassignment as a reasonable accommodation for a health
condition. Id. at 9. On October 22, 2015, the administrative judge issued an
initial decision dismissing the appeal for lack of Board jurisdiction. IAF, Tab 9,
Initial Decision (ID) at 1, 4.
¶3 On or about November 10, 2015, the U.S. Postal Service returned the initial
decision as undeliverable. IAF, Tab 11. After the administrative judge received
an updated mailing address in Charlotte, North Carolina from the appellant, he
again mailed her a copy of the initial decision on or about December 15,
2
The appellant has an individual right of action appeal pending before the New York
Field Office at present, MSPB Docket No. NY-1221-14-0315-W-1, in which she alleges
that the agency retaliated against her by reducing her grade and failing to provide her
with a rating of record for fiscal year 2013. No initial decision in that case has been
issued yet. The administrative judge issued an order to show cause on the issue of
jurisdiction on December 15, 2015. In a January 13, 2016 email message to the
administrative judge, the appellant stated that she intends to withdraw that appeal.
Initial Appeal File, Tab 12 at 2.
3
2015. Id. He explained in a notice to the appellant that the period in which she
could file a petition for review would begin when she received the initial
decision. Id. On January 13, 2016, the appellant emailed the administrative
judge stating that she had not yet received the initial decision and that, on May
22, 2015, she had submitted a request to dismiss the appeal without prejudice.
IAF, Tab 12 at 2. She stated that she had attached a copy of the request to the
email message, but no such document is located in the record from below. 3 Id.
On January 14, 2016, the administrative judge issued another notice to the
appellant, in which he explained that he had served the initial decision at the
address she had given and had notified her that the time limit for filing a petition
for review would begin when she received it. IAF, Tab 13 at 1. The
administrative judge also explained that the Board had never received her request
for dismissal, but, because her appeal raised a question of Board jurisdiction, it
was unlikely that he would have granted the request. Id. at 2.
¶4 The appellant filed a pleading styled “Appellant’s Second Request for
Dismissal and Notice of Motion to Quash Initial Decision” by mail with the
administrative judge on January 28, 2016, and a supplement by facsimile on
January 31, 2016. Petition for Review (PFR) File, Tabs 1-2. These submissions
were docketed as a petition for review and supplement by the Clerk of the Board
on February 8, 2016. Id. In response to the Clerk’s acknowledgement letter, PFR
File, Tab 3, she filed a timely motion for the Board to accept her filing as timely,
PFR File, Tab 4. Therein, she states, under penalty of perjury, that she collected
the initial decision from her post office box on January 12, 2016, and that the
decision had not been in her box when she last checked it on January 4,
2016. Id. at 2. She states that the envelope containing the initial decision shows
that it was rerouted from the address she had given the administrative judge in
3
The appellant included a copy of the May 22, 2015 request with the petition for
review, but she did not provide any proof that she had filed it with the field office
below. Petition for Review File, Tab 1 at 6, Tab 2 at 12.
4
Charlotte, North Carolina to her new address in Wilmington, North Carolina on
December 29, 2015. 4 Id. The agency has not offered any evidence controverting
the appellant’s statement.
¶5 We accept the appellant’s petition for review as timely filed. “Any petition
for review must be filed within 35 days after the date of issuance of the initial
decision or, if the petitioner shows that the initial decision was received more
than 5 days after the date of issuance, within 30 days after the date the petitioner
received the initial decision.” 5 C.F.R. § 1201.114(e). Here, the initial decision
was re-sent long after the original issuance date. The Charlotte address that the
appellant gave the administrative judge in November 2015 was only a temporary
one, IAF, Tab 12 at 2, 5, but the initial decision was forwarded to another address
in Wilmington in late December, presumably at her request, PFR File, Tab 4 at 2.
The appellant stated, under penalty of perjury, that she received the initial
decision after January 4, 2016, and on or before January 12, 2016. Id. Even if
the initial decision reached her post office box on January 5, 2016, her filing on
January 28, 2016, was timely.
¶6 We nevertheless deny the petition for review. On review, the appellant asks
the Board to quash the initial decision and “reaffirm the dismissal” of her appeal
without prejudice. PFR File, Tab 1 at 1. She asserts that the administrative judge
never granted her request for dismissal or sought to contact her about the request,
mischaracterized her request for a reasonable accommodation as a request for a
geographic reassignment, and exceeded the 120-day adjudication period for a
mixed-case appeal. Id. at 1-2, 4; see 5 U.S.C. § 7702(a)(1).
¶7 The appellant’s arguments are unavailing. First, nothing in the record
shows that the administrative judge ever received the request for dismissal. The
only copies of the request are with the petition for review, PFR File, Tab 1 at 6,
Tab 2 at 12, and even then, the appellant supplied no proof that her motion had
4
The date that the envelope was forwarded is not fully legible, but it falls between
December 20 and December 29, 2015. PFR File, Tab 4 at 5.
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ever been mailed or otherwise transmitted to the New York Field Office.
Although the decision to dismiss an appeal without prejudice is a discretionary
one, Love v. U.S. Postal Service, 76 M.S.P.R. 490, 492 (1997), we need not
decide the issue of whether the administrative judge should have dismissed the
appeal because the request was never received. As for the appellant’s assertion
that the administrative judge failed to maintain contact with her before the initial
decision was issued, she has not shown that she attempted to contact the
administrative judge when she did not receive any response to her request for
dismissal.
¶8 In any event, the administrative judge decided the appeal correctly. 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). The appellant bears the burden of proof
on the issue of jurisdiction. 5 C.F.R. § 1201.56(a)(2).
¶9 The appellant alleged that the agency improperly denied her request for a
reasonable accommodation for her disabling condition by refusing to reassign her
to one of its North Carolina offices. IAF, Tab 1 at 2, 7-14. She also alleged that
the denial was in retaliation for engaging in prior equal employment opportunity
activity. Id. at 2. The administrative judge notified the appellant that the Board
might not have jurisdiction over her appeal. IAF, Tab 3. Although she requested
and was granted an extension of time in which to respond, IAF, Tabs 4-5, the
appellant never addressed the jurisdictional issues that the administrative judge
raised.
¶10 The administrative judge properly found that the Board lacks jurisdiction
over the appellant’s appeal. The Board lacks jurisdiction over a reassignment
action unless such action resulted in a reduction in grade or pay. Loggins v. U.S.
Postal Service, 112 M.S.P.R. 471, ¶ 10 (2009). That did not happen here.
Instead, the appellant sought a reassignment as a reasonable accommodation
because she believed working conditions in New York exacerbated the symptoms
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of her health condition. IAF, Tab 1 at 7-12. After considering several options,
the agency denied her request. Id. at 9-12. Absent an otherwise appealable
matter, the Board lacks jurisdiction over the appellant’s discrimination claim.
Lethridge v. U.S. Postal Service, 99 M.S.P.R. 675, ¶ 13 (2005). Even if the
appellant’s condition had been accepted by the Office of Workers’ Compensation
Programs as a compensable injury and she was seeking reinstatement under
5 C.F.R. part 353, an agency’s duty to restore an employee in the local
commuting area is determined by the location of that employee’s former duty
station. Dean v. U.S. Postal Service, 115 M.S.P.R. 56, ¶¶ 14-15 (2010). The
appellant does not dispute that her former duty station was Westbury, New York.
IAF, Tab 1 at 1. Accordingly, we conclude that the administrative judge properly
dismissed the appeal for lack of Board jurisdiction.
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
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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
Circuit. 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.