UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ISAAC VELEZ, DOCKET NUMBER
Appellant, AT-0752-15-0707-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: February 24, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
David W. Noble, Jr., Gaithersburg, Maryland, for the appellant.
Jennifer L. Janeiro, Esquire, Dallas, Texas, 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 suspension 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. 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, 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. Except as
expressly MODIFIED by this Final Order to eliminate reliance on the appellant’s
signature on the settlement agreement that resolved the grievance of his
suspension, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant, a preference-eligible employee, is a City Carrier for the U.S.
Postal Service. Initial Appeal File (IAF), Tab 4 at 31. Effective February 21,
2015, the agency placed him in an off-duty status without pay because of an
allegation of misconduct. Id. at 23. In a letter dated April 23, 2015, the agency
notified the appellant that he was being removed, effective June 5, 2015. Id.
at 37-39. On April 23, 2015, the National Association of Letter Carriers (union)
and the agency signed an agreement resolving the grievance that had been filed
on the appellant’s behalf. Id. at 35. The agreement combined the appellant’s
placement in an off-duty status with the pending removal into one action, which
was designated as a 14-day suspension, and returned him to duty on April 25,
2015, without back pay. Id. The appellant signed the agreement on April 27,
2015. Id.
¶3 The appellant subsequently filed a Board appeal of his suspension from
February 21 to April 25, 2015, and requested a hearing. IAF, Tab 1 at 1-7. He
alleged that he had been suspended for more than 14 days and that his personnel
3
records had not reflected his veterans’ preference until after the agreement was
executed. Id. at 6, 15. In an order to show cause, the administrative judge
informed the appellant of his burden of proving Board jurisdiction over his appeal
and advised him that she intended to dismiss the appeal without a hearing unless
he made a nonfrivolous allegation of jurisdiction. IAF, Tab 5 at 2-3. The
appellant responded. IAF, Tab 9. Without holding the requested hearing, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction. IAF, Tab 12, Initial Decision (ID) at 1, 5.
¶4 The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has filed a response in opposition.
PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶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
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden
of proving the Board’s jurisdiction by a preponderance of the evidence. 2 5 C.F.R.
§ 1201.56(b)(2)(i)(A). If an appellant makes a nonfrivolous allegation 3 of Board
jurisdiction over an appeal, he is entitled to a hearing on the jurisdictional
question. Garcia v. Department of Homeland Security, 437 F.3d 1322, 1344
(Fed. Cir. 2006) (en banc).
¶6 Preference-eligible employees of the U.S. Postal Service, like the appellant,
are entitled to simultaneously pursue both a grievance and a Board appeal.
Mays v. U.S. Postal Service, 995 F.2d 1056, 1058 (Fed. Cir. 1993). If an
employee chooses to file and settle a grievance by agreeing to lesser discipline,
2
A preponderance of the evidence is the 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
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
4
that course of action is presumptively voluntary and therefore divests the Board
of jurisdiction over the underlying matter. Swink v. U.S. Postal Service,
111 M.S.P.R. 620, ¶ 9 (2009), aff’d, 372 F. App’x 90 (Fed. Cir. 2010). However,
the Board will review the terms of a settlement agreement and the surrounding
circumstances to determine if it retains jurisdiction over an appeal of an action
that was settled in another procedural avenue. Id. Even if a settlement agreement
does not bar a Board appeal, the appellant still must have expressly reserved the
right to seek Board review for the Board to retain jurisdiction. Id., ¶ 11.
¶7 The administrative judge found that the Board lacks jurisdiction over the
appeal because the appellant did not reserve a right to file a Board appeal
concerning his suspension and removal. 4 ID at 4-5. In his petition for review, the
appellant disputes the administrative judge’s dismissal of his appeal without a
hearing. PFR File, Tab 1 at 4-5; ID at 1-2. He alleges that he made the following
nonfrivolous allegations of Board jurisdiction: (1) the substantive rights
addressed through the grievance procedure are different from the substantive
rights available through the Board; and (2) his signature on the settlement
agreement only shows that he witnessed the agreement. PFR File, Tab 1 at 5-6.
¶8 First, the administrative judge found that the substantive rights addressed
through the grievance procedure are not different from the substantive rights
available through the Board. ID at 4. She cited to the decision of the U.S. Court
4
The appellant argues that the U.S. Supreme Court’s decision in Vaca v. Sipes,
386 U.S. 171 (1967), stands for “the proposition that the individual employee does not
control the grievance.” PFR File, Tab 1 at 6. However, at issue in Vaca was a claim
that a union had breached its duty of fair representation under the National Labor
Relations Act, an issue that is not before us here. 386 U.S. 171. Rather, as relevant to
our decision, the appellant has not alleged that he was unaware of the grievance
regarding his off-duty status and removal, or that he made any efforts to disavow it.
See Hanna v. U.S. Postal Service, 101 M.S.P.R. 461, ¶ 15 (2006) (observing that an
appellant’s knowledge that his union filed a grievance regarding the underlying action,
coupled with his failure to affirmatively disavow the grievance, constitutes implicit
evidence that he authorized the union to present the grievance on his behalf); IAF,
Tab 1 at 6, Tab 4 at 35, Tab 9 at 5-6. Therefore, we find unpersuasive his argument
concerning the union’s control of the grievance process.
5
of Appeals for the Federal Circuit in Mays, 995 F.2d at 1060, which held that the
grievance procedure and Board appeals in adverse action cases involving
preference-eligible Postal employees address the same substantive rights. ID at 4.
The appellant in this case is attempting to resolve his suspension for more than
14 days, which already was settled through the grievance procedure. IAF, Tab 4
at 35. Thus, the two avenues of appeal are able to address the same underlying
cause of action and do not afford different substantive rights. 5
¶9 Next, the administrative judge found the appellant’s claim that he merely
witnessed the settlement agreement “inherently improbable.” ID at 4-5. The
appellant argues that, in so finding, the administrative judge “impermissibly
weigh[ed]” the evidence. PFR File, Tab 1 at 5; IAF, Tab 9 at 6. We agree that
the administrative judge erred in making this factual finding without a hearing.
See Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994) (finding that the
administrative judge may not weigh evidence and resolve conflicting assertions of
the parties in determining whether the appellant has made a nonfrivolous
allegation of jurisdiction). However, we find this error harmless because,
regardless of his alleged role or intentions at the time of signing, the appellant
later ratified the agreement by his actions. See Panter v. Department of the
Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that
is not prejudicial to a party’s substantive rights provides no basis for reversal of
an initial decision). We modify the initial decision to eliminate the
5
The appellant argues that Mays does not apply because it involved a removal, whereas
this appeal involves a “no-notice emergency suspension.” PFR File, Tab 1 at 5-6. We
disagree. Because the appellant’s suspension ultimately exceeded 14 days, it was, like
a removal, an adverse action appealable to the Board under chapter 75. 5 U.S.C.
§§ 7512(1)-(2), 7513(d). His right to appeal was not eliminated merely because the
agency failed to apprise him of it. See Barnes v. U.S. Postal Service, 103 M.S.P.R. 103,
¶ 10 (2006) (reversing a constructive suspension for failure to provide Board appeal
rights). Therefore, we find that the holding in Mays applies to this appeal. See Mays,
995 F.2d at 1060.
6
administrative judge’s finding regarding the improbability that the appellant
signed the agreement as a witness. ID at 4-5.
¶10 Regardless of his role in signing the agreement, the appellant is still bound
by its terms. The Board held in Tetrault v. U.S. Postal Service, 71 M.S.P.R. 376,
379 (1996), that a union may file a grievance on its own behalf and that an
employee is not bound by the union’s action in pursuing a matter through a
negotiated grievance procedure when he shows, among other things, that he
did not ratify the union’s actions. Here, the appellant’s return to duty after the
grievance was settled ratified the union’s actions, and therefore he was bound by
the settlement agreement. 6 See Mays, 995 F.2d at 1059 (“By returning to work,
[the appellant] ratified the settlement negotiated by his union representatives and
established his assent to the unambiguous agreement by accepting the fruits of the
settlement.”). Therefore, we agree with the administrative judge’s finding that
the appellant did not make a nonfrivolous allegation of jurisdiction.
¶11 Further, the appellant argues that he was not required to reserve a right to
appeal in the settlement agreement because the agency failed to notify him of
such right when it placed him in an off-duty status without pay. PFR File, Tab 1
at 6-7. However, the Board has held that it is immaterial whether an appellant
knew of, and intentionally did not reserve, a Board appeal right when he entered
into a settlement agreement, or whether the agency failed to inform him of a
Board appeal right. Swink, 111 M.S.P.R. 620, ¶ 11. Thus, the agency’s failure to
provide notice of a Board appeal right did not eliminate the appellant’s burden to
6
The appellant alleges that his claim that he only witnessed the agreement is the “same
as the testimony credited by the Federal Circuit in Mays.” PFR File, Tab 1 at 6. We
do not agree that Mays supports his claim because it does not contain any reference to
testimony. 995 F.2d 1056.
7
reserve his appeal right in the settlement agreement. See Swink v. Merit Systems
Protection Board, 372 F. App’x 90, 93 (Fed. Cir. 2010). 7
¶12 For these reasons, we find that the administrative judge properly dismissed
the appeal for lack of jurisdiction without a hearing.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request review of this final decision by the U.S. Court of Appeals for the Federal
Circuit. You must submit your request to the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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 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 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 is available at the court’s website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
7
The Board has held that it may rely on unpublished Federal Circuit decisions if it finds
the court’s reasoning persuasive. E.g., Herring v. Department of the Navy, 90 M.S.P.R.
165, ¶ 13 n.* (2001).
8
Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, 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
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.