Opinion

Andrew Faris v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Apr 26, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANDREW D. FARIS, DOCKET NUMBER

Appellant, CH-0752-20-0205-I-1

UNITED STATES POSTAL SERVICE, DATE: April 26, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Andrew D. Faris , Indianapolis, Indiana, pro se.

Alison D. Alvarez , Esquire, Chicago, Illinois, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

dismissed his appeal of an agency action removing him for violating a last chance

agreement (LCA) for lack of jurisdiction. 2 On petition for review, the appellant

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

As the agency observed below, it appears that the appellant prematurely filed his

Board appeal. See Initial Appeal File (IAF), Tab 8 at 15 n.1. The removal decision is

dated February 3, 2020, with an effective date of February 14, 2020. Id. at 67-69. The

appellant electronically filed his Board appeal on February 1, 2020, prior to the

February 14, 2020 effective date, and therefore his Board appeal was prematurely filed

argues that the LCA is a one-sided unconscionable contract, that he was denied

due process by the agency’s removal decision, and that his supervisors removed

him in retaliation for his union activity. Petition for Review (PFR) File, Tab 1 at

4. The appellant also challenges the merits of the agency’s November 20, 2019

absence without leave (AWOL) determination. 3 Id. Finally, the appellant asserts

that his last day worked was January 3, 2020, not February 3, 2020, and he

provides copies of a number of earnings statements for the period from March

2019 through September 2019, along with a copy of a 14-day suspension dated

February 27, 2019. Id. at 4-36. However, the appellant has not challenged the

administrative judge’s findings that the Board lacks jurisdiction over this appeal

because the appellant waived his Board appeal rights in the LCA, and that waiver

of appeal rights was valid and enforceable. See Initial Appeal File, Tab 9, Initial

Decision (ID) at 8. 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

by 13 days. See Initial Appeal File (IAF), Tab 1. Nevertheless, “[t]he Board’s practice

is to adjudicate an appeal that was premature when filed but becomes timely while

pending before the Board.” Wooten v. Department of Veterans Affairs , 96 M.S.P.R.

671, ¶ 9 (2004). Accordingly, any error by the administrative judge in failing to

dismiss the appeal was harmless because the appeal had become ripe for adjudication

upon the effective date of the removal, 13 days after the appeal was filed, and while the

appeal remained pending before the Board. See Gutierrez v. Department of the

Treasury, 99 M.S.P.R. 141, ¶ 3 n.1 (2005) (concluding that a premature probationary

termination appeal became timely upon the effective date of the termination); Groshans

v. Department of the Navy, 67 M.S.P.R. 629, 632-33 n.2 (1995) (determining that a

premature removal appeal became ripe for adjudication upon the effective date of the

removal).

As the agency notes in its response, the initial decision refers to 3.41 hours of AWOL,

instead of the 3.51 hours identified in the removal decision letter, which appears to be a

typographical error. PFR File, Tab 3 at 7 n.1; IAF, Tab 9, Initial Decision at 3, 6. This

typographical error is inadvertent, and this misstatement was harmless and did not

affect the outcome of the decision in any way. See Panter v. Department of the Air

Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that was not

prejudicial to a party’s substantive rights provided no basis for reversal of an initial

decision).

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.

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

the LCA was unconscionable and one-sided, as the administrative judge noted

below, the appellant received consideration from the agency in the form of the

opportunity to remedy his attendance issues and retain his position in lieu of

removal. ID at 7; see Tetrault v. U.S. Postal Service, 71 M.S.P.R. 376, 380

(1996) (noting that consideration for an appellant’s waiver of his appeal rights

can include an agency’s agreement to reduce a removal to a suspension, or its

holding of a removal in abeyance for a period of time); Romano v. U.S. Postal

Service, 49 M.S.P.R. 319, 322 (1991) (finding valid consideration for waiver of

the appellant’s Board appeal right in the agency’s agreement to reduce the earlier

removal action to a suspension).

With respect to the earnings statements for the period from March 2019

through September 2019 and the copy of a 14-day suspension dated

February 27, 2019 that the appellant submitted with his petition for 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 4-36. All of the submitted documents predate the appellant’s February 1, 2020

appeal and thus are not new. See Okello v. Office of Personnel Management,

112 M.S.P.R. 563, ¶ 10 (2009) (noting that under 5 C.F.R. § 1201.115(d),

the Board will not consider evidence submitted for the first time with a petition

for review absent a showing that it is both new and material);

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

submitted documents are material to the jurisdictional matter at issue in this

appeal, so we have not considered them. See Russo v. Veterans Administration,

3 M.S.P.R. 345, 349 (1980).

Regarding the appellant’s arguments that he was denied due process and

that agency officials retaliated against him based on his union activity, because

the Board lacks jurisdiction over the appellant’s appeal of his removal due to the

valid waiver of appeal rights in the LCA, it has no authority to consider the

merits of any potential affirmative defenses raised by the appellant, such as his

due process and retaliation claims. See Martin v. Department of Defense,

70 M.S.P.R. 653, 657 (1996); 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).

Finally, the appellant contends that he was sick on the day he was charged

with AWOL and alleges that, although he provided a doctor’s note, it was denied

by his supervisor and he was charged with AWOL instead of being marked tardy.

PFR File, Tab 1 at 4. The appellant did not raise this argument below and thus

we need not consider it. See Clay v. Department of the Army, 123 M.S.P.R. 245,

¶ 6 (2016) (noting that the Board generally will not consider an argument raised

for the first time in a petition for review absent a showing that it is based on new

and material evidence not previously available despite the party’s due diligence);

Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980) (same);

5 C.F.R. § 1201.115(d). 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).

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.

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:

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.

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. 420 (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. 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