Shawn K. Carter v. United States Postal Service ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHAWN K. CARTER, DOCKET NUMBER
Appellant, AT-0752-13-3703-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: September 9, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Shawn K. Carter, Maryville, Tennessee, pro se.
Keyur S. Shah, Philadelphia, Pennsylvania, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal as untimely filed by nearly 7 months with no good
cause shown for the delay. Generally, we grant petitions such as this one only
when: the initial decision contains erroneous findings of material fact; the initial
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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).
¶2 The appellant filed this appeal with the Board’s Atlanta Regional Office on
August 19, 2013. Initial Appeal File (IAF), Tab 1. He claimed to be challenging
both a suspension and his removal from the position of city carrier. Id. at 2-3.
The administrative judge docketed a separate appeal concerning each action. This
appeal concerns the appellant’s removal for improper conduct and lack of
candor. 2
¶3 After affording the parties notice of and an opportunity to address the
pertinent issues concerning the timeliness of this appeal, IAF, Tab 9, the
administrative judge dismissed the appeal as untimely filed with no good cause
shown for the delay, IAF, Tab 15, Initial Decision (ID). Specifically, the
administrative judge found as follows:
• By letter dated December 18, 2012, the agency notified the appellant that he
would be removed from his position effective December 22, 2012, and that
2
The Board issued a separate decision addressing the appellant’s petition for review of
the administrative judge’s initial decision in the suspension appeal, Carter v. U.S.
Postal Service, MSPB Docket No. AT-0752-13-3701-I-1.
3
he could file a Board appeal within 30 calendar days of the effective date of
his removal. ID at 2; IAF, Tab 6 at 99.
• The appellant’s union filed a grievance challenging the removal on
December 21, 2012, and expressly acknowledged that the appellant had
received the agency’s decision letter that day. ID at 2; IAF, Tab 6 at 45.
• The grievance proceeded to arbitration, and the arbitrator denied the
grievance on July 19, 2013. ID at 2; IAF, Tab 6 at 23.
• On August 6, 2013, the agency issued a Postal Service (PS) Form 50
documenting the appellant’s separation from its rolls effective July 19,
2013. ID at 2; IAF, Tab 13 at 2.
• The appellant filed this appeal on August 19, 2013. ID at 2; IAF, Tab 1.
• Under 5 C.F.R. § 1201.22, the appellant should have filed his appeal no
later than January 21, 2013, 3 which was 30 days after the effective date of
his removal, and thus his appeal was nearly 7 months late. ID at 3.
• The appellant’s decision to pursue a grievance regarding his removal did
not extend the time limit for filing a Board appeal or constitute good cause
to waive the time limit under the circumstances. ID at 4-5.
¶4 On review, the appellant briefly asserts, “At no time since I’ve been off
work has any correspondence from the post office had or referred to the mspb
[sic] board what so ever.” Petition for Review (PFR) File, Tab 1 at 2. He further
repeats his argument that he filed his Board appeal on August 19, 2013, just 3
days after he received the PS Form 50 documenting his separation effective
July 19, 2013. 4 Id.; IAF, Tab 13.
3
Because January 21, 2013, was a federal holiday, the appellant would have had until
Tuesday, January 22, 2013, to file his appeal. See 5 C.F.R. § 1201.23. This 1-day
difference is immaterial here given the appellant’s filing delay of nearly 7 months.
4
The appellant also makes arguments regarding the merits of the agency’s removal
action, but such arguments are immaterial to the issue of the timeliness of his appeal.
See, e.g., Criddell v. U.S. Postal Service, 60 M.S.P.R. 30, 34 (1993).
4
¶5 The appellant’s brief and general assertions fail to show any error in the
initial decision. Significantly, his statements on review are consistent with the
findings that he received the December 18, 2012 decision on December 21, 2012,
and that the contents of that decision correctly informed him of his Board appeal
rights. 5 He claims that “[a]t no time since I’ve been off work” has he received
documentation from the agency referring to the Board, PFR File, Tab 1 at 2, but
he does not clarify when he is considering himself “off work” for purposes of this
statement. He has submitted documentation that he remained in a pay status until
February 2012, IAF, Tab 13 at 2, and has argued that he should not be deemed
separated from the agency until July 19, 2013, id. at 1. Thus, his statement on
review is not the equivalent of a statement denying receipt of the agency’s
decision on December 21, 2012. He has also submitted documentation showing
that his union made specific arguments based on his actual receipt of the agency’s
decision on December 21, 2012. IAF, Tab 10 at 1-6. In these circumstances, the
appellant has not shown that there is a dispute of fact over whether he received
the decision letter on December 21, 2012. See Price v. U.S. Postal Service,
98 M.S.P.R. 25, ¶¶ 8-10 (2004) (finding that the appellant failed to demonstrate
good cause for the untimely filing of his petition for review because, among other
things, his claim that he was not notified of his appeal rights was speculative,
inherently incredible, insufficiently explained, and inconsistent with his other
allegations), aff’d, 137 F. App’x 335 (Fed. Cir. 2005).
¶6 Further, the appellant has not disputed the finding that the December 18,
2012 decision contained accurate notice of the time limit for filing a Board
appeal. See ID at 3; PFR File, Tab 1. The decision contained an explicit
5
The appellant has had clear notice of the need to address these issues but has not done
so. For instance, the agency’s motion to dismiss contained extensive arguments on
these issues, IAF, Tab 6 at 13-17, which he did not rebut in any specific way, see IAF,
Tabs 10, 13. Further, despite the administrative judge’s specific analysis of these
issues in the initial decision, ID at 5 n.1, the appellant has not specifically addressed
them on review.
5
discussion of his right to pursue both a grievance and a Board appeal
simultaneously. IAF, Tab 6 at 99-101. The decision expressly stated that the
pursuit of his grievance would not extend the time limit for filing a Board appeal
and that he had no right to appeal the resolution of the grievance to the Board.
Id. at 99. Receipt of such clear notice will generally preclude an appellant from
establishing good cause for untimely filing based on a lack of notice. See Muse v.
U.S. Postal Service, 82 M.S.P.R. 164, ¶¶ 10-11 (1999); Allison v. U.S. Postal
Service, 81 M.S.P.R. 335, ¶ 13 (1999), aff’d, 232 F.3d 908 (Fed. Cir. 2000)
(Table). Given this clear notice of his appeal rights, the appellant’s incorrect
view that the time limit would not begin to run until his receipt of the PS Form 50
memorializing his separation is not a basis for excusing the significant filing
delay of nearly 7 months. See, e.g., McNeil v. U.S. Postal Service, 98 M.S.P.R.
18, ¶ 9 (2004) (the time limit for filing an appeal generally begins to run from the
effective date contained in the U.S. Postal Service’s decision notice, not the date
when the employee is eventually separated from the U.S. Postal Service’s rolls).
¶7 After considering the entire record in this matter, we conclude that the
appellant has failed to establish a dispute as to material facts regarding the timely
filing of his appeal or good cause excusing his late filing, and thus the
administrative judge properly dismissed this appeal without holding a hearing.
See Stout v. Merit Systems Protection Board, 389 F.3d 1233, 1241 (Fed. Cir.
2004).
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. 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
6
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
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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.