UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KIZZY M. DAVIS, DOCKET NUMBER
Appellant, DC-0752-15-1152-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: July 7, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kizzy M. Davis, High Point, North Carolina, pro se.
Greg Allan Ribreau, Charlotte, North Carolina, 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 her probationary termination 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. 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 and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 In this appeal, the appellant indicated that she was a preference‑eligible
EAS-18 Personnel Processing Specialist with 8 months of Government service
and that she was serving in a probationary period at the time of the action being
appealed. Initial Appeal File (IAF), Tab 1 at 1. She included a copy of a PS-50
Notification of Personnel Action form, which indicated that the agency had
terminated her during her probationary period for unacceptable conduct. Id. at 4.
In addition to the acknowledgment order in which the administrative judge gave
the appellant notice of her burden to establish jurisdiction over her appeal, the
administrative judge also issued a separate jurisdictional order notifying the
appellant exactly what she must allege to be entitled to a hearing on the
jurisdictional issue. IAF, Tabs 2-3. The appellant did not respond to either order.
¶3 Without holding the requested hearing, the administrative judge dismissed
the appeal for lack of jurisdiction, finding that the appellant failed to
nonfrivolously allege that she was an employee with the 1-year of current
continuous service necessary for the Board to have jurisdiction over her appeal.
IAF, Tab 7, Initial Decision (ID). In her timely filed petition for review, the
appellant cites regulations regarding Postal Service employees’ appeal rights
3
when pursuing both a grievance and a Board appeal on the same matter. Petition
for Review (PFR) File, Tab 1 at 2-3. The appellant contends that the agency has
employed her since September 11, 2001, but she also concedes that the agency
terminated her during her probationary period. Id. at 3. Additionally, she
challenges the agency’s reasons for her termination. Id. at 3-5. The agency
responds in opposition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 For a Postal Service employee to appeal a removal under 5 U.S.C.
chapter 75, she must: (1) be a preference eligible, a management or supervisory
employee, or an employee engaged in personnel work in other than a purely
nonconfidential clerical capacity; and (2) have completed 1 year of current
continuous service in the same or similar positions. E.g., Clark v. U.S. Postal
Service, 118 M.S.P.R. 527, ¶ 7 (2012) (citing 39 U.S.C. § 1005(a); 5 U.S.C.
§ 7511(a)(1)(B)(ii)).
¶5 The appellant alleged that she is entitled to veterans’ preference. IAF,
Tab 1 at 1. Although she offered no evidence in support of her assertion, the
agency did not challenge it. Nevertheless, even if we were to credit the
appellant’s unsupported assertion, 2 we would find that she failed to make a
nonfrivolous allegation that, if proven, could establish that the Board has
jurisdiction over her appeal because both her factual allegations and the document
she submitted with her appeal establish that she lacks the 1 year of current
continuous service required for a preference-eligible Postal Service employee to
appeal a removal to the Board. As noted above, the appellant explicitly stated
that she had 8 months of Federal service and acknowledged on her appeal form
2
The administrative judge noted that “it appears” the appellant was in a management
position and was performing personnel work, but she made no finding in that regard.
ID at 3. Although the record indicates that the appellant was a personnel processing
specialist, she did not allege that she was engaged in personnel work in other than a
purely nonconfidential clerical capacity. See 39 U.S.C. § 1005(a).
4
that she was serving in a probationary, trial, or initial service period at the time of
the action she was appealing, which, according to the PS-50 form she included,
was her termination during her probationary period. IAF, Tab 1 at 1, 4.
Therefore, given the entirety of the appellant’s submissions below, we agree with
the administrative judge that the appellant failed to make a nonfrivolous
allegation that, if proven, would establish Board jurisdiction over her termination.
ID at 3.
¶6 The appellant’s arguments on review do not demonstrate that the
administrative judge erred. The appellant does not explain how the regulations
she cites regarding the election of a Postal Service employee to proceed before
the Board or through the negotiated grievance procedure apply to this action.
PFR File, Tab 1 at 2-3. Moreover, nothing in the record indicates that the
appellant filed a grievance over her termination.
¶7 Although the appellant asserts on review that she has been employed by the
Postal Service since September 11, 2011, she provides no support for her
assertion and implies that this alleged service consisted of temporary or term
appointments, claiming that, “I finally made career on December 27, 2014.” Id.
at 3. Consistent with that assertion, she goes on to acknowledge in her petition
for review that, “[o]n August 20, 2015, I was terminated 4 months short of my
probationary year.” Id. The appellant’s remaining allegations on review concern
the merits of her termination and do not address the jurisdictional issue. Id.
at 4-5. Thus, we find that the appellant’s assertions on review bolster the
administrative judge’s determination that the appellant failed to make a
nonfrivolous allegation of Board jurisdiction over this appeal and thus, that she
was not entitled to a hearing on that issue. Accordingly, we deny the appellant’s
petition for review.
5
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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. 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
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
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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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
Kizzy M. Davis v. United States Postal Service
Combined Opinion