Opinion

Tyrone Aull v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jul 6, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TYRONE AULL, DOCKET NUMBER

Appellant, NY-752S-17-0223-I-1

DEPARTMENT OF VETERANS DATE: July 6, 2022

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Tyrone Aull, Queens, New York, pro se.

Timothy M. O’Boyle, Esquire, Hampton, Virginia, 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 his appeal challenging a 3-day suspension and a letter of reprimand for

lack of jurisdiction. Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains erroneous findings of

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. 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). However, we

FORWARD the appellant’s Uniformed Services Employment and Reemployment

Rights Act of 1994 (USERRA) (codified as amended at 38 U.S.C. §§ 4301-4335)

claim to the New York Field Office for docketing as a new appeal.

BACKGROUND

¶2 The appellant is employed as a GS-13 Supervisory General Engineer with

the agency. Initial Appeal File (IAF), Tab 4 at 3. He was issued a letter of

reprimand for one charge of failure to properly perform supervisory duties/failure

to follow instructions on March 2, 2016, and a 3-day suspension for disrespectful

conduct towards a supervisor, failure to follow proper leave procedures, and

deliberate refusal to carry out an order on December 14, 2016 . IAF, Tab 1

at 10-14. The appellant subsequently filed the instant appeal challenging both

actions on September 11, 2017. Id. at 3, 5.

¶3 The administrative judge issued a show cause order instructing the appellant

to submit evidence or argument demonstrating that he suffered an appealable

adverse action under 5 U.S.C. § 7512 within 10 days, after which time the record

on the issue of jurisdiction would close. IAF, Tab 3. In response, the appellant

only submitted two copies of a Standard Form 50 documenting his 3-day

suspension. IAF, Tab 4. Subsequently, the administrative judge issued an initial

decision without holding the appellant’s requested hearing, dismissing the appeal

for lack of Board jurisdiction. IAF, Tab 6, Initial Decision (ID) at 2. 2

¶4 The appellant has filed a petition for review of the initial decision . Petition

for Review (PFR) File, Tab 1. The agency has not filed a response.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge correctly found that the Board lacks jurisdict ion over

the appellant’s challenge to his letter of reprimand and 3-day suspension.

¶5 The Board’s jurisdiction is limited to those matters over which it has been

given jurisdiction by statute or regulation. Maddox v. Merit Systems Protection

Board, 759 F.2d 9, 10 (Fed. Cir. 1985); see 5 U.S.C. §§ 7512-7513; 5 C.F.R.

§ 1201.3. The appellant bears the burden of proving jurisdiction by preponderant

evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A). If the appellant makes a nonfrivolous

allegation that the matter is within the Board’s jurisdiction, he is entitled to a

hearing at which he must prove jurisdiction. Garcia v. Department of Homeland

Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006). An employee may appeal an

adverse action under 5 U.S.C. § 7512 to the Board under 5 U.S.C. § 7513(d).

Section 7512 defines an adverse action as: (1) a removal; (2) a suspension for

more than 14 days; (3) a reduction in grade; (4) a reduction in pay; or (5) a

furlough of 30 days or less.

¶6 On review, the appellant argues that he has been unfairly targeted and

discriminated against by his supervisor but does not otherwise address the

administrative judge’s determination that he did not allege that he suffered an

appealable adverse action. PFR File, Tab 1 at 12-14. The appellant also submits

Because the administrative judge dismissed the appeal for lack of jurisdiction , he did

not make a finding regarding the timeliness of the appeal. ID at 3 n.2. Because we

ultimately agree with the administrative judge’s determination, we also make no

findings regarding the timeliness of the appeal.

what appears to be a copy of a complaint he filed with the agency’s Equal

Employment Opportunity (EEO) office. Id. at 9-11, 15-217. As the

administrative judge correctly noted, because the appellant had no statutory or

regulatory right to appeal the letter of reprimand or the 3 -day suspension to the

Board, we find that the administrative judge correctly dismissed the appeal for

lack of jurisdiction without addressing the appellant’s discrimination allegations. 3

See 5 U.S.C. § 7512; 5 C.F.R. § 1201.3(a)(1).

The appellant’s USERRA claim is forwarded for docketing as a new appeal.

¶7 In the narrative portion of his petition for review, the appellant claims that

he was harassed and denied military leave. PFR File, Tab 1 at 14. Additionally,

he submits a document that appears to be his written response to the proposed

3-day suspension at issue in this appeal. Id. at 5-8. In the section of the response

addressing the charge of failure to follow proper leave procedures, the appellant

states his belief that he was singled out for requesting military leave and states

his belief that the denial of his military leave request constituted a violation of

USERRA. Id. at 6.

¶8 An employer is considered to have violated USERRA if a person ’s

“obligation for service in the uniformed services is a motivating factor in the

employer’s action, unless the employer can prove that the action would have been

taken in the absence of such membership . . . or obligation for service.” Johnson

Regarding the appellant’s February 2016 EEO complaint, submitted for the first time

on review, the Board generally will not consider evidence submitted for the first time

on review absent a showing that: (1) the documents and the information contained in

the documents were unavailable before the record closed despite due diligence; and

(2) the evidence is of sufficient weight to warrant an outcome different from that of the

initial decision. Carson v. Department of Energy, 109 M.S.P.R. 213, ¶ 21 (2008), aff’d,

357 F. App’x 293 (Fed. Cir. 2009); Avansino v. U.S. Postal Service, 3 M.S.P.R. 211,

214 (1980); 5 C.F.R. § 1201.115(d); see PFR File, Tab 1 at 9-217. All of the submitted

documents predate the appellant’s September 11, 2017 appeal and thus are not new.

See Avansino, 3 M.S.P.R. at 214. The appellant also has not explained how the

submitted documents are material. See Russo v. Veterans Administration, 3 M.S.P.R.

345, 349 (1980).

v. U.S. Postal Service, 85 M.S.P.R. 1, ¶ 9 (1999); see 38 U.S.C. § 4311(c)(1).

Additionally, the Board has held that USERRA claims are broadly and liberally

construed, are not subject to a statute of limitations, and may be raised in the first

instance in a petition for review. See Henson v. U.S. Postal Service,

110 M.S.P.R. 624, ¶ 10 n.6 (2009); 5 C.F.R. § 1208.12. Therefore, we find that

the appellant has raised a cognizable USERRA claim and forward the claim to the

field office for docketing as a new appeal.

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 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.

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.

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.

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 chal lenge 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).

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:

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.