The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BARBARA E. BALL, DOCKET NUMBER
Appellant, CH-3443-19-0077-I-1
v.
SOCIAL SECURITY DATE: January 17, 2024
ADMINISTRATION,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Barbara E. Ball , Whiting, Indiana, pro se.
Deepa Rajkarne , Esquire, Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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). For
the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant is a non-preference eligible GS-11 Claims Specialist for the
agency. Initial Appeal File (IAF), Tab 1 at 3. On November 8, 2018, she filed
this Board appeal, indicating that she was challenging a suitability determination
and a “harassment investigation,” stating that she was dissatisfied with the
agency’s investigation into her harassment allegations. Id. at 4-16. The appellant
subsequently requested a hearing. IAF, Tab 5 at 2.
The administrative judge issued an acknowledgment order, informing the
appellant that the Board might lack jurisdiction over her appeal and notifying her
of the Board’s jurisdiction under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA), the Veterans Employment
Opportunities Act of 1998, and the Whistleblower Protection Act as amended.
IAF, Tab 2. The appellant responded, asserting that her appeal concerned an
employment practice connected with a nonselection for promotion, a suitability
action, a decision concerning her benefits, discrimination based on sex, national
origin, and disability, whistleblower retaliation, and “involuntary time off in July
of 2018.” IAF, Tab 10 at 5-7. The agency moved to dismiss the appeal for lack
of jurisdiction. IAF, Tab 12.
3
After the record on jurisdiction closed, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction without a hearing.
IAF, Tab 16, Initial Decision (ID). He found that the agency’s conduct of the
harassment investigation did not constitute an “adverse action” within the
meaning of 5 U.S.C. § 7512, that there was no indication that the appellant had
been subjected to a suitability action, and that there was no indication that the
appellant’s nonselection for promotion was the result of an employment practice
administered by the Office of Personnel Management (OPM). ID at 3-5. The
administrative judge further found that the appellant’s allegations of
discrimination under Title VII and the Americans with Disabilities Act were
insufficient to confer jurisdiction on the Board, and that absent an otherwise
appealable action, the Board lacked jurisdiction over the appellant’s
whistleblower claim because she had not exhausted her administrative remedies
with the Office of Special Counsel (OSC). ID at 5-6.
The appellant has filed a petition for review, disputing the administrative
judge’s jurisdictional analysis, particularly with regard to her claims of hostile
work environment, involuntary leave, and retaliation. Petition for Review (PFR)
File, Tab 1. The agency has filed a response in opposition to the petition for
review, and the appellant has filed a reply to the agency’s response. PFR File,
Tabs 5-7.
ANALYSIS
We agree with the administrative judge’s analysis of those claims that he
addressed. Regarding the appellant’s allegations concerning an employment
practice, we agree with the administrative judge that the appellant has not shown
that this appeal involves an “employment practice” under 5 C.F.R. § 300.103 that
OPM is involved in administering. ID at 4; see generally Mapstone v.
Department of the Interior, 110 M.S.P.R. 122, ¶ 7 (2008) (setting forth the
jurisdictional standard for an employment practices appeal). We also agree with
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the administrative judge that the appellant has not shown that she has been
subjected to a “suitability action” under 5 C.F.R. § 731.203(a). ID at 4-5. We
further agree that the Board lacks jurisdiction over the appellant’s claims of
discrimination absent an otherwise appealable action. See 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).
The appellant has not challenged these findings on petition for review, and we
find no reason to disturb them.
On petition for review, the appellant challenges the administrative judge’s
finding that the Board lacks jurisdiction over her whistleblower retaliation claim.
PFR File, Tab 1 at 1, Tab 7 at 3-4. However, as the administrative judge
correctly found, the appellant’s whistleblower allegations are insufficient to
confer Board jurisdiction over her appeal because she has not exhausted
her administrative remedies with OSC. ID at 5-6; IAF, Tab 1 at 5; see
Bradley v. Department of Homeland Security, 123 M.S.P.R. 547, ¶ 6 (2016);
Calixto v. Department of Defense, 120 M.S.P.R. 557, ¶ 21 (2014) (dismissing the
appellant’s whistleblower claim for lack of jurisdiction because she failed to
exhaust her administrative remedies with OSC). The appellant also asserts a
hostile work environment claim and reasserts her claim of retaliation for reporting
harassment. PFR File, Tab 1 at 3-4. However, outside the context of
USERRA and IRA appeals, the Board lacks jurisdiction over retaliation and
hostile work environment claims absent an otherwise appealable action.
Banks v. Merit Systems Protection Board, 854 F.3d 1360, 1363-64 (Fed. Cir.
2017).
Nevertheless, the appellant is correct that the administrative judge failed to
address her claim that she took “involuntary time off in July of 2018 due to
harassment occurring in her workplace.” 2 IAF, Tab 10 at 5; PFR File, Tab 1 at 3.
This is a constructive suspension claim and may be within the Board’s chapter 75
2
On petition for review, the appellant identifies July 2017 as the relevant time period
for her constructive suspension claim. PFR File, Tab 1 at 1-3. The appellant will have
the opportunity to resolve this discrepancy on remand.
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jurisdiction. See Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 8 (2013)
(finding that the Board has jurisdiction over an employee’s absence as a
constructive suspension claim if he lacked a meaningful choice in the matter due
to the agency’s wrongful actions). If an appellant makes a nonfrivolous
allegation that she lacked a meaningful choice in taking leave, that it was the
agency’s wrongful actions that deprived her of that choice, and that the
jurisdictional requirements of 5 U.S.C. chapter 75 are otherwise met, she is
entitled to a jurisdictional hearing. See Thomas v. Department of the Navy,
123 M.S.P.R. 628, ¶ 11 (2016); Bean, 120 M.S.P.R. 397, ¶ 8. We agree with the
agency that the appellant’s vague and conclusory allegations below and on
review do not constitute specific allegations of fact that, if proven, would show
that the agency constructively suspended her for more than 14 days. IAF,
Tab 10 at 5; PFR File, Tab 1 at 3, Tab 5 at 9-10, Tab 7 at 2-4; see
Collins v. Defense Logistics Agency, 55 M.S.P.R. 185, 190 (1992), modified on
other grounds by Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325 (1994);
Dodson v. U.S. Postal Service, 67 M.S.P.R. 84, 87 (1995). However, before an
administrative judge may dismiss an appeal for lack of jurisdiction without a
hearing, he must provide the appellant with explicit notice of how to establish
Board jurisdiction over her appeal. Burgess v. Merit Systems Protection Board,
758 F.2d 641, 643-44 (Fed. Cir. 1985). In this case, we find that the appellant’s
claim of “involuntary time off” was sufficiently specific that the administrative
judge should have notified her of how to prove jurisdiction over a constructive
suspension appeal, including when an appellant alleges that her absence was the
result of intolerable working conditions. See Allen v. U.S. Postal Service,
73 M.S.P.R. 73, 76 (1997); see also Bean, 120 M.S.P.R. 397, ¶ 8 (setting forth
the jurisdictional standard for constructive suspension appeals in general);
Peoples v. Department of the Navy, 83 M.S.P.R. 216, ¶¶ 5-9 (1999) (setting forth
the jurisdictional standard for constructive suspension appeals based on
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intolerable working conditions). Because the appellant did not receive any such
notice, we remand this appeal for further adjudication. 3 See id. at 77.
There would appear to be a question as to the timeliness of this appeal. To
the extent that the appellant is claiming a constructive suspension sometime in
July 2017 or July 2018, her November 8, 2018 Board appeal would be untimely
under 5 U.S.C. § 1201.22(b)(1). However, it would also appear that the issues of
timeliness and jurisdiction are intertwined. See Edge v. U.S. Postal Service,
113 M.S.P.R. 692, ¶¶ 9-12 (2010). The administrative judge should address the
timeliness issue in light of the Board’s guidance in Edge and similar cases.
We also observe that the appellant filed a petition for review of the initial
decision with the Equal Employment Opportunity Commission (EEOC) before
she filed her petition for review with the Board. PFR File, Tab 6. Because the
administrative judge dismissed the Board appeal for lack of jurisdiction, the
EEOC remanded the case to the agency to consider the appellant’s discrimination
claims in the first instance. PFR File, Tab 6 at 1-2; see 29 C.F.R. § 1614.302(b).
However, the appellant’s petition to the EEOC was premature because the
initial decision had not yet become final at the time she filed it. See
5 U.S.C. § 7702(a)(1), (b)(1); 5 C.F.R. § 1201.157; 29 C.F.R. § 1614.303(a), (c).
Indeed, the EEOC petition is still not ripe because the appellant’s timely petition
for review with the Board prevented the initial decision from becoming final, and
the appeal is now being remanded to the administrative judge for further
adjudication. See 5 C.F.R. § 1201.113(a)-(c). In sum, the appellant elected to
raise her discrimination claims with the Board in the context of a
3
An administrative judge’s failure to provide an appellant with proper Burgess notice
can be cured if the agency’s pleadings contain the notice that was lacking in the
acknowledgment order or the initial decision puts the appellant on notice of what she
must do to establish jurisdiction, thus affording her the opportunity to meet her
jurisdictional burden on review. Easterling v. U.S. Postal Service, 110 M.S.P.R. 41,
¶ 11 (2008). In this case, neither the agency’s filings nor the initial decision were
adequate to apprise the appellant of her jurisdictional burden in a constructive
suspension appeal. See Brown v. Department of Defense, 109 M.S.P.R. 493, ¶ 16
(2008).
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constructive suspension appeal rather than bring an equal employment
opportunity complaint under 29 C.F.R. § 1614.106. See 5 C.F.R.§ 1201.154(a);
29 C.F.R. § 1614.302(b). The Board is still in the process of determining whether
it has jurisdiction over the appellant’s discrimination claims in the context of a
mixed-case constructive suspension appeal, and neither the appellant’s premature
petition to the EEOC nor any equal employment opportunity proceedings that the
agency may conduct pursuant to the EEOC’s remand order will have any effect on
that determination.
ORDER
For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order. The
administrative judge shall notify the appellant of her jurisdictional burden in a
constructive suspension appeal and afford her a full and fair opportunity to prove
jurisdiction, including holding a jurisdictional hearing if warranted. If the
administrative judge finds it necessary to reach the timeliness issue, he shall have
the discretion to address the issue as he sees fit, consistent with the Board’s case
law. 4
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
4
In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.