Opinion

Jacquelyn Jones-Louis v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Oct 11, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JACQUELYN S. JONES-LOUIS, DOCKET NUMBER

Appellant, CH-0752-16-0366-I-1

UNITED STATES POSTAL SERVICE, DATE: October 11, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jacquelyn S. Jones-Louis, Indianapolis, Indiana, pro se.

James P. Verdi, 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

dismissed her appeal of her removal 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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. 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).

BACKGROUND

¶2 On or about May 2010, the appellant was removed from her po sition with

the agency as a Mail Processing Clerk. Initial Appeal File (IAF), Tab 1 at 7, 11.

On April 27, 2016, she appealed her removal to the Board and requested a

hearing. Id. at 1-3. In her appeal, the appellant noted that she was not eligible

for a veterans’ preference. Id. at 1. The administrative judge informed the

appellant of her burden to establish the Board’s jurisdiction over her appeal. IAF,

Tab 3 at 1. In response, the appellant admitted that she was not (1) eligible for a

veterans’ preference, (2) in a management or supervisory position, or (3) engaged

in personnel work other than in a purely nonconfidential capacity with 1 year of

current continuous service in the same or similar positions. IAF, Tab 6 at 4. The

appellant later amended her response to allege that the Board had jurisdiction

over her case because it was a mixed-case appeal involving claims of

discrimination. IAF, Tab 12 at 4-6. On July 13, 2016, the administrative judge

dismissed her appeal for lack of jurisdiction without holding a hearing, noting

that in the absence of an otherwise appeal action, claims of discrimination do not

confer the Board with jurisdiction to adjudicate an appeal. IAF, Tab 13, Initial

Decision (ID) at 1-4. 2

DISCUSSION OF ARGUMENTS ON REVIEW

¶3 On review, the appellant asks the Board to take jurisdiction over her appeal

on the basis that it is a mixed-case appeal involving claims of discrimination.

Petition for Review File, Tab 1 at 4-7. The appellant also asks the Board to

consider the fact that the U.S. District Court for the Southern District of Indiana

found her wrongful termination claim before that court to be foreclosed by the

Civil Service Reform Act of 1978, 5 U.S.C. § 1101 et seq. Id. at 7-8; see

Jones-Louis v. Brennan, No. 1:13-cv-00762-SEB-MJD, 2016 WL 1270179, at *4

(S.D. Ind. Mar. 31, 2016).

¶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). The appellant bears the

burden of proving by preponderant evidence that her appea l is within the Board’s

jurisdiction. 3 5 C.F.R. § 1201.56(b)(2)(i)(A).

¶5 A U.S. Postal Service employee may appeal a removal action to the Board

only if she is (1) preference eligible, (2) a supervisory or management employee,

or (3) an employee engaged in personnel work in other than a purely

nonconfidential clerical capacity. 5 U.S.C. § 7511(a)(1)(B), (b)(8); 39 U.S.C.

§ 1005(a)(4)(A); Hicks v. U.S. Postal Service, 114 M.S.P.R. 232, ¶ 13 (2010). An

appellant’s claim that her agency discriminated against her in violation of

5 U.S.C. § 2302(b)(1) does not confer jurisdiction to the Board in the absence of

an otherwise appealable action. Hicks, 114 M.S.P.R. 232, ¶ 13 (citing Booker v.

Because she found that the Board lacks jurisdiction over the appeal, the administrative

judge made no finding as to the timeliness of the appeal. ID at 1 n.2.

A preponderance of the evidence is the degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

U.S. Postal Service, 53 M.S.P.R. 507, 509, aff’d, 982 F.2d 517 (Fed. Cir. 1992);

Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867,

871-73 (D.C. Cir. 1982)).

¶6 Because the appellant admitted that she was neither preference eligible, a

supervisory or management employee, nor engaged in personnel work in other

than a purely nonconfidential clerical capacity, the U.S. district court’s

suggestion in its decision that she should have appealed her removal claim to the

Board was in error. See Jones-Louis, 2016 WL 1270179, at *4; Jones-Louis v.

Donahoe, No. 1:13-cv-00762-SEB-MJD, 2014 WL 4410374, at *5 (S.D. Ind.

Sept. 3, 2014). Although the court did not adjudicate the appellant’s wrongful

termination claim, the court did adjudicate her appeal of her unfavorable Equal

Employment Opportunity Commission decision. Jones-Louis, 2016 WL 1270179,

at *5-7. Regarding that appeal, the court granted summary judgement for the

defendant because the appellant failed to present sufficient evidence

demonstrating that her removal had a discriminatory basis. Id. at *6-7.

¶7 Accordingly, for the reasons set forth above, we deny the appellant’s

petition for review and affirm the initial decision dismissing her appeal for lack

of jurisdiction.

NOTICE OF APPEAL RIGHTS 4

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 appea l 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

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 matter.

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.

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 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 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

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:

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 challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2 302(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

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 Preside nt 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 juri sdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,

132 Stat. 1510.

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

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