Opinion

Carty Myers v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Jun 28, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CARTY MYERS, DOCKET NUMBER

Appellant, CB-7121-18-0003-V-1

UNITED STATES POSTAL SERVICE, DATE: June 28, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Carty Myers, Bridgeport, Connecticut, pro se.

Krista M. Irons, New York, New York, 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 request for review of an arbitration decision that

dismissed as untimely his grievance of the agency’s decision to remove him. For

the reasons set forth below, we DISMISS the request for review for lack of

jurisdiction. However, we FORWARD the appellant’s submission to the

Northeastern Regional Office for docketing as an appeal challenging his removal.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND

¶2 The appellant was a City Carrier before his removal in July 2015. Request

for Review (RFR) File, Tab 1 at 5. There is a dispute about when the appellant

received notice of his removal, but, on or about July 28, 2015, his union filed a

grievance on his behalf pursuant to procedures set forth in the governing

collective bargaining agreement (CBA). Id. at 4-5. On February 12, 2016, the

arbitrator issued a decision dismissing the grievance as untimely filed, pursuant

to the 14-day deadline set forth in the CBA. Id. at 7-10.

¶3 On November 1, 2017, the appellant filed a request for review of the

arbitrator’s decision with the Board. Id. at 1-2, 11. The Clerk of the Board

issued an acknowledgment order, notifying the appellant, in part, that his request

for review appeared to be untimely filed and ordering the appellant to file

evidence and argument to prove that his request was timely or that good cause

existed for any delay. RFR File, Tab 2 at 3 (citing Kirkland v. Department of

Homeland Security, 119 M.S.P.R. 74, ¶ 4 (2013); 5 C.F.R. § 1201.155(b)). The

appellant did not file a response to the acknowledgmen t order. The agency filed a

motion to dismiss the request for review for lack of jurisdiction or, in the

alternative, to dismiss the request as untimely filed. RFR File, Tab 4 at 4-6. The

appellant did not file a response to the agency’s motion.

ANALYSIS

¶4 The Board generally has jurisdiction to review an arbitrator’s decision

under 5 U.S.C. § 7121(d) when the subject matter of the grievance is one over

which the Board has jurisdiction, the appellant either raised a claim of

discrimination under 5 U.S.C. § 2302(b)(1) with the arbitrator in connection with

the underlying action or raises a claim of discrimination in connection with the

underlying action under 5 U.S.C. § 2302(b)(1) for the first time with the Board if

such allegations could not be raised in the negotiated grievance procedure, and a

final decision has been issued. Jones v. Department of Energy, 120 M.S.P.R.

480, ¶ 8 (2013), aff’d, 589 F. App’x 972 (Fed. Cir. 2014); 5 C.F.R.

§ 1201.155(a)(1), (c). However, a Postal Service employee does not have the

right of Board review of an arbitration decision because 5 U.S.C. § 7121 does not

apply to the U.S. Postal Service. Anderson v. U.S. Postal Service, 109 M.S.P.R.

558, ¶ 4 (2008). Therefore, we dismiss the appellant’s request for review of the

arbitration decision for lack of jurisdiction. 2

¶5 Nevertheless, the Board may have jurisdiction over the appellant’s

underlying removal action. Under 5 U.S.C. § 7121(e)(1), an individual affected

by a personnel action—such as a removal—that is both appealable to the Board

and covered by a negotiated grievance procedure may contest the action before

the Board or under the negotiated grievance procedure, but not both. See

Anderson, 109 M.S.P.R. 558, ¶ 5. However, this binding election of remedies

does not apply to Postal Service employees with appeal rights, who are entitled to

simultaneously pursue both a grievance and a Board appeal . See Mays v. U.S.

Postal Service, 995 F.2d 1056, 1058 (Fed. Cir. 1993); Anderson, 109 M.S.P.R.

558, ¶ 5. Preference-eligible Postal Service employees who have completed

1 year of continuous service in the same or similar positions have Board appeal

rights. 3 5 U.S.C. § 7511(a)(1)(B)(ii); 39 U.S.C. § 1005(a)(4)(A)(i); Toomey v.

U.S. Postal Service, 71 M.S.P.R. 10, 12 (1996).

¶6 The record is not clear whether the appellant was a preference-eligible

Postal Service employee or otherwise met any of the criteria under 39 U.S.C.

§ 1005(a)(4)(A). RFR File, Tabs 1, 4. We therefore forward the appellant’s

submission to the Board’s Northeastern Regional Office for docketing as an

appeal challenging his removal. After docketing the appeal, the administrative

Having determined that the Board lacks jurisdiction, we do not address the apparent

untimeliness of the appellant’s request for review.

Management or supervisory employees and Postal Service employees engaged in

personnel work other than in a purely nonconfidential capacity who have completed

1 year of current continuous service in the same or similar positions also have Board

appeal rights. 39 U.S.C. § 1005(a)(4)(A)(ii).

judge should inform the parties of the standard for Board jurisdiction and provide

them an opportunity to respond to the jurisdictional issue with evidence and

argument.

¶7 In addition, to the extent that the appellant intended to file an appeal of an

adverse action, there is an issue concerning the timeliness of the appeal.

Generally, an appeal of a removal action must be filed with the Board within

30 days of the effective date of the action or within 30 days of receipt of the

agency’s final decision, whichever is later. See 5 C.F.R. §§ 1201.22(b)(1),

1201.154(a). Generally, pursuit of a grievance does not extend the time for filing

a Board appeal. Anderson, 109 M.S.P.R. 558, ¶ 7. The arbitrator’s decision is

not clear regarding the date on which the removal became effective. RFR File,

Tab 1 at 6. Although the precise date on which the appellant received the

agency’s notice of removal was disputed in the testimony of the parties during the

arbitration hearing, a grievance challenging his removal was apparently filed on

or about July 28, 2015. Id. at 4-5. It therefore appears that the appeal, which was

filed on November 1, 2017, was untimely by more than 2 years. After docketing

the appeal, the administrative judge should inform the appellant that his appeal

appears to be untimely and provide him the opportunity to establish that the

appeal was timely filed or that good cause exists for his delay in filing. See

5 C.F.R. §§ 1201.22, 1201.154.

¶8 This is the Board’s final decision regarding the request for review of the

arbitration decision.

NOTICE OF APPEAL RIGHTS

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.

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 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. 4 The court of appeals must receive your

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.

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