Harris L. Winns v. United States Postal Service

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

HARRIS L. WINNS, DOCKET NUMBER
Appellant, SF-0752-15-0165-I-1

v.

UNITED STATES POSTAL SERVICE, DATE: May 7, 2015
Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

Harris L. Winns, San Jose, California, pro se.

Nina Paul, Esquire, San Francisco, California, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal 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 interpretation of statute or
regulation or the erroneous application of the law to the facts of the case; the

1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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

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. See 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, and based on the following points and authorities, 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).

DISCUSSION OF ARGUMENTS ON REVIEW
¶2 Prior to the termination at issue in this appeal, the appellant was employed
as a Sales & Services/Distribution Associate. Initial Appeal File (IAF), Tab 14 at
7, 22. The appointment from which he was terminated was effective on February
6, 2014, and was due to expire on January 31, 2015; he previously had served a
temporary appointment from February 5, 2013, until January 31, 2014. Id. at
22-24. In October 2014, the agency issued two separate notices that terminated
the appellant from his position. Id. at 40-43, 51-54. In the first termination
notice, the agency charged the appellant with failure to follow
instructions/irregular attendance/absence without leave based upon conduct that
took place in September 2014. Id. at 51. In the second termination notice, the
agency charged the appellant with unacceptable conduct/failure to follow
instructions for conduct that took place after it issued the first termination notice.
Id. at 40. The appellant filed this appeal challenging his termination and alleging
discrimination based upon his religion and race and retaliation for prior equal
employment opportunity (EEO) and union activities. IAF, Tab 1, Tab 5 at 16-20.
The appellant also alleged that he was subjected to severe harassment and a
 3

hostile work environment and that he was denied a promotion. IAF, Tab 5 at
14-15. The agency filed a motion to dismiss the appeal for lack of jurisdiction.
IAF, Tab 6. The appellant later alleged whistleblower retaliation. IAF, Tab 12 at
24-26. The administrative judge issued an order to show cause informing the
appellant that the Board may not have jurisdiction over his appeal. IAF, Tab 17.
The appellant filed a response. IAF, Tab 18.
¶3 In his initial decision, the administrative judge dismissed the appeal for lack
of jurisdiction, finding that the appellant failed to nonfrivolously allege that he
completed the 1 year of current continuous service required to establish
jurisdiction over his appeal. IAF, Tab 23, Initial Decision (ID) at 3-4. He also
found that the Board did not have jurisdiction over the appellant’s whistleblower
retaliation claim because he had failed to exhaust his administrative remedies
with the Office of Special Counsel (OSC) and because, even if he had exhausted
his administrative remedies, Postal Service employees are not entitled to seek
corrective action under 5 U.S.C. § 1221. ID at 4. Finally, the administrative
judge found that any other claims were beyond the Board’s jurisdiction absent an
otherwise appealable action. ID at 4-5.
¶4 The appellant has timely petitioned for review, arguing, inter alia, that the
agency never informed him of the jurisdictional requirement that he exhaust his
administrative remedies before OSC and that his 5-day breaks in service between
appointments should not prevent a finding that he had 1 year of current
continuous service. Petition for Review (PFR) File, Tab 1 at 4-5, 10-12. The
agency has filed a response in which it states that it has rescinded its termination
decisions and argues that its rescission divests the Board of jurisdiction. PFR
File, Tab 6 at 4-5. In his reply, the appellant asserts that the agency’s actions in
rescinding the decisions and returning him to a “hostile and toxic” work
environment do not return him to the status quo ante. PFR File, Tab 7 at 5-6.
¶5 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
 4

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). An appellant bears the burden
of proving by preponderant evidence that his appeal is within the Board’s
jurisdiction. 2 5 C.F.R. § 1201.56(b)(2)(i). The appellant may establish
jurisdiction over his termination, even though he is a Postal Service employee, by
demonstrating that he is a preference eligible and that he has completed 1 year of
current continuous service in the same or similar position. 5 U.S.C.
§ 7511(a)(1)(B)(ii); Clark v. U.S. Postal Service, 118 M.S.P.R. 527, ¶ 7 (2012). 3
The term “current continuous service” means a period of employment or service,
either in the competitive or excepted service that immediately precedes an
adverse action without a break in federal civilian employment of a workday.
Maibaum v. Department of Veterans Affairs, 116 M.S.P.R. 234, ¶ 14 (2011). As
the administrative judge correctly found, ID at 3-4, the appellant never completed
1 year of continuous service with the agency. The appellant’s most recent
appointment was effective on February 6, 2014, and, even using the effective date
of the second termination decision, he was terminated less than 10 months later.
Id. at 22-24, 40. He was terminated from his prior temporary appointment on
January 31, 2014. Id. at 23. Therefore, the appellant had a break in service less
than 1 year prior to his termination. Thus, even assuming that the appellant was a
preference eligible, we agree with the administrative judge that the Board does
not have jurisdiction over the appellant’s adverse action appeal because he did
not have 1 year of current continuous service. 4

2
A preponderance of the evidence is that 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).
3
Although the Board also has jurisdiction over the appeals of Postal Service employees
who are management or supervisory employees or employees engaged in personnel
work in other than a purely nonconfidential clerical capacity, Clark, 118 M.S.P.R. 527,
¶ 7, the appellant has not argued, and the record does not reflect, that he was employed
in these categories, see IAF, Tab 14 at 76-77.
4
We find that, even if the appellant had appeal rights as an employee under 5 U.S.C.
§ 7511(a)(1)(B)(ii), the Board lacks jurisd iction over his claim that the agency failed to
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¶6 We also find that the Board lacks jurisdiction over the appellant’s
discrimination and retaliation claims, either as a separate appeal or as affirmative
defenses. Postal Service employees may not file an individual right of action
(IRA) appeal because they are not covered by the Whistleblower Protection
Act. 5 5 U.S.C. § 2302(a)(2)(C); Matthews v. U.S. Postal Service, 93 M.S.P.R.
109, ¶ 13 (2002). Furthermore, although Postal Service employees may raise
discrimination and retaliation as affirmative defenses, the Board is without
jurisdiction to hear those claims in the absence of an otherwise appealable action.
Hicks v. U.S. Postal Service, 114 M.S.P.R. 232, ¶ 13 (2010). Accordingly, we
find that the administrative judge properly dismissed the appeal for lack of
jurisdiction. 6

NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline

promote him because the Board generally lacks jurisdiction over an appellant’s
nonselection for a promotion. Harrell v. U.S. Postal Service, 112 M.S.P.R. 492, ¶ 11
(2009).
5
The appellant argues that the administrative exhaustion requirement before OSC
should not bar Board jurisdiction because he was not informed of this requirement.
PFR File, Tab 1 at 4-5. However, regardless of whether the appellant had exhausted his
administrative remedies, the Board does not have jurisdiction over any IRA appeal
brought by the appellant because he is a Postal Service employee. Matthews v. U.S.
Postal Service, 93 M.S.P.R. 109, ¶ 13 (2002).
6
Because we find that the Board otherwise lacks jurisd iction over th is appeal, we need
not address the agency’s assertion on review that it has fully rescinded its actions
against the appellant. See PFR File, Tab 6 at 4-5, Tab 7 at 5-6.
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and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for
 7

information regarding pro bono representation for Merit Systems Protection
Board appellants before the Federal Circuit. The Merit Systems Protection Board
neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.

FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.