Michael Duceatt v. United States Postal Service

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHAEL EDWARD DUCEATT, DOCKET NUMBER

Appellant, CH-0839-17-0179-I-1

v.

UNITED STATES POSTAL SERVICE, DATE: January 19, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Michael Edward Duceatt, Portage, Michigan, pro se.

Deborah L. Lisy, Esquire, Chicago, Illinois, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

affirmed the final agency decision denying his request for corrective action under

the Federal Erroneous Retirement Coverage Corrections Act (FERCCA) , denied

his complaint under the Uniformed Services Employment and Reemployment

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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Rights Act of 1994 (USERRA), dismissed his complaint under the Veterans

Employment Opportunities Act of 1998 (VEOA), and dismissed his challenge to

his probationary termination. 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 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 af fected 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. Except as expressly MODIFIED by

this Final Order to find that the appellant failed to establish his USERRA claim,

we AFFIRM the initial decision, which is now the Board’s final decision.

5 C.F.R. § 1201.113(b).

¶2 On petition for review, the appellant argues that the administrative judge

erred in affirming the agency’s FERCCA denial, in denying his USERRA claim,

and in dismissing his VEOA appeal as unexhausted. He also reasserts his

challenge to his 1985 probationary termination. 2 In addition, he appears to argue

2

The appellant also submits a motion requesting to reopen the record to “correct[] or

modif[y]” the stipulations identified in the administrative judge’s Order and Summary

of Status Conference and a second motion requesting reopening based on “recently

rediscovered exculpatory evidence in the form of the agency stipulation.” Petition for

Review File, Tabs 7, 11; Initial Appeal File (IAF), Tab 21. The appellant does not

specifically identify which of the stipulations he wishes to correct or identify how they

were erroneous. To the extent he is challenging additional stipulations that he did not

object to below, the Board will not consider this argument on review. See Brown v.

Department of the Army, 96 M.S.P.R. 232, ¶ 6 (2004) (noting that the Board will not

consider objections to an administrative judge’s summary that the party failed to

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for the first time that the agency’s decision reducing his veterans’ preference

eligibility from 10 points to 5 points also constituted discrimination in violation

of USERRA. Petition for Review (PFR) File, Tab 2 at 16-17; Tab 10 at 15.

Although the Board generally does not consider arguments raised for the first

time on review, Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271

(1980), the appellant may have tried to raise this argument below, and the

administrative judge did not address it, Initial Appeal File (IAF), Tab 23.

Because the Board construes claims under USERRA broadly and liberally, and

because the appellant is pro se, in an overabundance of caution we have

considered any potential argument that the appellant’s preference point reduction

also constituted a USERRA violation. See Gossage v. Department of Labor,

118 M.S.P.R. 455, ¶ 10 (2012).

¶3 As the administrative judge noted in addressing the appellant’s VEOA

claim, the agency reduced the appellant’s veterans’ preference status based on the

rating documentation it had available at the time it made the determination. IAF,

Tab 28, Initial Decision at 15. Specifically, the agency asserted, and the

appellant does not dispute, that in October 2013, prior to the preference status

change, it informed the appellant that it did not have information on file

concerning his disability rating and requested that he provide an updated cop y of

preserve below). Regarding the stipulation the appellant objected to below —namely,

his request to modify stipulation 18 to reflect that h e had 6 years, 4 months, and 18 days

of “Frozen” Civil Service Retirement System (CSRS) service prior to his Federal

Employees Retirement System election—because we ultimately agree with the

administrative judge’s determination that the appellant’s militar y service was not

creditable civilian service for the purpose of determining CSRS retirement eligibility,

the appellant’s request is denied. IAF, Tabs 21-22; see Tizo v. Office of Personnel

Management, 325 F.3d 1378, 1380 (Fed. Cir. 2003) (holding, in determining whether

military service qualified as covered service for the purpose of establishing CSRS

eligibility, that under the 1948 retirement law, “civil servants were required to meet the

five-year service requirement ‘exclusive of’ military service.”); Villanueva v. Office of

Personnel Management, 980 F.2d 1431, 1432-33 (Fed. Cir. 1992) (finding the

“contention that . . . military and civilian service should be combined is . . . expressly

precluded by the [Civil Service Retirement Act of 1948].”).

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the Department of Veterans Affairs’ disability rating decision letter. IAF, Tab 8

at 67. The appellant failed to provide the rating letter, so the agency eventually

changed his rating status from code “3” (10-point eligible) to code “2” (5‑point

eligible) and issued an updated Postal Service Form 50 reflecting that change. Id.

at 65-66. The appellant has not challenged this characterization on review.

Accordingly, we conclude that the appellant has failed to adduce any evidence

that the agency’s preference point reduction was based on any improper

motivation and consequently, did not meet his burden of proving discrimination

in violation of USERRA. 3 See Sheehan v. Department of the Navy, 240 F.3d

1009, 1013-15 (Fed. Cir. 2001) (requiring an individual to initially show by

preponderant evidence that his military status was at least a motivating or

substantial factor in the agency action, upon which the agency must prove by

preponderant evidence that the action would have been taken for a valid reason

despite the protected status).

¶4 Regarding the appellant’s argument, raised for the first time on review, that

the agency’s decision denying his request for corrective action under FERCCA

was “three years late,” PFR File, Tab 2 at 4-5, the appellant does not explain how

this delay entitles him to corrective action under FERCCA. The appellant also

makes a number of arguments for the first time in his reply to the agency’s

response to his petition for review, including that the agency engaged in unlawful

discrimination, whistleblower retaliation, and reprisal for union activity and for

3

After the record closed on review, the appellant submitted a motion requesting leave

to file a Department of Veterans Affairs disability rating letter dated October 20, 2020.

See PFR File, Tab 11 at 6. Because the agency based its rating determination on the

information it had available at the time, and because we ultimately conclude that the

agency’s preference point reduction was not based on any improper motive, the

October 20, 2020 rating letter is immaterial, and we deny the appellant’s request. See

5 C.F.R. § 1201.114(k) (noting that the Board may accept additional pleadings, other

than those provided for in 5 C.F.R. § 1201.114(a), only if the evidence is new and

material and the party submitting it shows that it was not available prior to the close of

the record on review); 5 C.F.R. § 1201.115(d).

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the filing of a prior Board appeal. He also asserts that the agency created a

hostile work environment and contributed to his loss of Office of Workers’

Compensation benefits. PFR File, Tab 10 at 8-9, 13, 17-18. The Board’s

regulations make clear that a reply is limited to the issues raised by another party

in the response to the petition for review, and the reply may not raise new

allegations of error. 5 C.F.R. § 1201.114(a)(4); see Boston v. Department of the

Army, 122 M.S.P.R. 577, ¶ 5 n.3 (2015) (declining to consider new arguments

that were first raised in a reply brief). Therefore, we have not considered these

arguments, raised for the first time in the appellant’s reply.

¶5 Accordingly, we affirm the initial decision.

NOTICE OF APPEAL RIGHTS 4

The initial decision, as supplemented by this Final Order, c onstitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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.

4

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 ma tter.

6

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.

(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 partic ular

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

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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

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (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:

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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:

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 ch allenge 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. 5 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).

5

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.

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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

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 war rants 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: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.