UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PHYLLIS E. BANKS, DOCKET NUMBER
Appellant, SF-0353-19-0387-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: February 13, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Osvaldo Quintana , Los Angeles, California, for the appellant.
Deborah C. Winslow , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal seeking review of the agency’s
decision to remove her, the agency’s failure to restore her to her position, and a
negative suitability determination. On petition for review, the appellant reiterates
her arguments from below, asserting, among other things, that she was a covered
employee under chapter 75, that the Board has jurisdiction over her restoration
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
claim because the agency was aware that she suffered an on -the-job injury, that
the agency discriminated against her due to her age and disability, and that the
agency refused to place her in or search for an appropriate position to
accommodate her medical restrictions. Petition for Review (PFR) File, Tab 1
at 3. 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 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. 2 5 C.F.R. § 1201.113(b).
Below, the administrative judge issued a jurisdictional order informing the
appellant how to establish the Board’s jurisdiction over the removal of U.S.
Postal Service employees and restoration claims. Initial Appeal File (IAF), Tab 3
at 2-10. The order did not provide the appellant with notice of how to establish
the Board’s jurisdiction over a negative suitability determination claim or how to
prove her affirmative defense of age discrimination. Id. To the extent this
2
In her petition for review, the appellant requests a hearing. PFR File, Tab 1 at 3. It is
not clear if she is arguing that the administrative judge erred in denying her a hearing
below or if she is seeking a hearing on review. Id. To the extent she is arguing that the
administrative judge erred, an appellant is not entitled to a hearing absent a
nonfrivolous allegation of jurisdiction. Cf. Rivera v. Department of the Navy,
114 M.S.P.R. 52, ¶ 6 (2010). To the extent she is seeking a hearing on review, the
Board’s regulations do not provide for such proceedings.
3
constitutes error, see Burgess v. Merit Systems Protection Board, 758 F.2d 641,
643-44 (Fed. Cir. 1985) (providing that an appellant must receive explicit
information on what is required to establish an appealable jurisdictional issue),
we find that such error was cured with respect to the negative suitability
determination claim and that any error with respect to the appellant’s age
discrimination claim is harmless.
Regarding the suitability claim, the administrative judge concluded that the
appellant’s indication on her appeal form that she was appealing a negative
suitability determination, IAF, Tab 1 at 4, was merely her characterization of the
agency’s decision to remove her, IAF, Tab 6, Initial Decision (ID) at 7. We
agree. There is no evidence in the record that the appellant received a negative
suitability determination or that she made an actual claim before the Board on
that basis, and she does not raise it on review. Nonetheless, the administrative
judge provided further information concerning the Board’s jurisdiction over
negative suitability determinations in the initial decision, thereby curing any error
in omitting it in her jurisdictional order. ID at 7; see Parker v. Department of
Housing and Urban Development, 106 M.S.P.R. 329, ¶ 8 (2007). Regarding the
age discrimination claim, we find that the appellant’s rights were not prejudiced
by not receiving notice of how to prove this claim because she failed to establish
jurisdiction over an otherwise appealable action, and the Board would therefore
ultimately lack jurisdiction over an age discrimination claim. See Penna v. U.S.
Postal Service, 118 M.S.P.R. 355, ¶ 13 (2012) (stating that, absent an otherwise
appealable action, the Board lacked jurisdiction to consider the appellant’s claims
of age and disability discrimination); 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).
Additionally, the appellant asserts for the first time on review that, in
addition to age discrimination, the agency also engaged in disability
4
discrimination. 3 PFR File, Tabs 1, 4. The Board will generally not consider an
argument raised for the first time on review absent a showing that it is based on
new and material evidence not previously available despite the party’s due
diligence. See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
(1980). Regardless of whether the appellant can make such a showing, the Board
nonetheless lacks jurisdiction over such discrimination claims absent an
otherwise appealable action. See Penna, 118 M.S.P.R. 355, ¶ 13.
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
3
Following the close of the record on review, the appellant submitted a reply to the
agency’s response to her petition for review and, another 5 months later, a motion for
leave to file an additional pleading. PFR File, Tabs 4, 7. Regarding the reply, the
Board’s regulations provide that a reply to a response to a petition for review must be
filed within 10 days of the date of service of the response. 5 C.F.R. § 1201.114(e). The
Office of the Clerk of the Board informed the appellant of the appropriate deadlines in
an acknowledgment letter. PFR File, Tab 2. Here, the agency submitted its response on
August 2, 2019, and the appellant submitted her reply on September 3, 2019, thereby
making it untimely by 22 days. PFR File, Tabs 3-4. Even considering this untimely
reply, however, we find that the appellant has still failed to provide a basis to disturb
the initial decision. Regarding the motion for leave to file an additional pleading, the
appellant requests leave to submit evidence regarding a class action lawsuit against the
agency. PFR File, Tab 7 at 5. She has not explained, however, how this evidence
affects the question of whether the Board has jurisdiction over her appeal. Accordingly,
the motion is denied. See 5 C.F.R. §§ 1201.114(k), 1201.115(d).
4
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.
5
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:
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.
6
(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:
7
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).
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
8
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
following address:
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.