Christopher E. Bozeman, Sr v. United States Postal Service ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTOPHER E. BOZEMAN, SR., DOCKET NUMBER
Appellant, AT-4324-15-0723-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: February 24, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Christopher E. Bozeman, Sr., Birmingham, Alabama, pro se.
Margaret L. Baskette, Esquire, Tampa, Florida, 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
denied his Uniformed Services Employment and Reemployment Rights Act of
1994 (USERRA) appeal on the merits. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. 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 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 The appellant is a preference-eligible veteran. Initial Appeal File (IAF),
Tab 8 at 19. He served in two temporary appointments for the agency as a PS-06
Mail Processing Clerk, the first from February 18 to April 30, 2013, and the
second from November 16, 2013 to January 9, 2014. Id. at 19-21, 25-26. The
agency reappointed the appellant to a temporary position on January 11, 2014,
and, on September 20, 2014, the agency converted him to a career appointment as
a Mail Processing Clerk. Id. at 27, 39.
¶3 Meanwhile, the appellant filed a Veterans Employment Opportunities Act of
1998 (VEOA) complaint with the Department of Labor and, after the complaint
was closed without taking corrective action, the appellant filed a Board appeal.
Bozeman v. U.S. Postal Service, MSPB Docket No. AT-3330-15-0552-I-1, Initial
Appeal File, Tab 1, Tab 8 at 8-9, 11-12. The administrative judge issued an
initial decision dismissing the VEOA appeal as untimely filed. Bozeman v. U.S.
Postal Service, MSPB Docket No. AT-3330-15-0552-I-1, Initial Decision
(July 28, 2015). Neither party filed a petition for review, and the initial decision
became final. See 5 C.F.R. § 1201.113.
3
¶4 However, the administrative judge found that the appellant may have also
been attempting to raise a USERRA claim, and he docketed the instant appeal
separately to address it. IAF, Tab 1 at 2 n.1. The administrative judge issued an
acknowledgment order, informing the appellant of his burden of proof in a
USERRA appeal and directing him to file evidence and argument on the issue.
IAF, Tab 3. The appellant responded, arguing that, although the agency
eventually appointed him to a career position, it should have done so much
earlier, i.e., during his first temporary appointment. IAF, Tab 7 at 4. He alleged
that the agency converted other Clerk craft employees to career positions during
his first temporary appointment, but failed to extend that same benefit to him
despite him being a veteran. Id. The appellant did not request a hearing, and the
administrative judge issued a close of the record order advising the appellant of
his burden on the merits. IAF, Tab 11. The agency responded to the close of the
record order, IAF, Tab 12, but the appellant did not.
¶5 After the close of the record, the administrative judge issued an initial
decision denying the appellant’s request for corrective action. IAF, Tab 13,
Initial Decision (ID). He found that the appellant failed to raise an inference of
anti-military animus and that the agency presented unrebutted evidence that the
timing of the appellant’s career appointment was dictated by a collective
bargaining agreement. ID at 4 & n.1.
¶6 The appellant has filed a petition for review, explaining that a union official
and various other agency employees told him that his rights as a veteran had been
violated, that he is unclear about the benefits to which he is entitled as an agency
employee, and that he did not realize that he should have made an additional
filing after the close of the record order. Petition for Review (PFR) File, Tab 1
at 4. The agency has filed a response, PFR File, Tab 3, and the appellant has
filed a reply, PFR File, Tab 4.
¶7 To prevail on the merits of a USERRA appeal under 38 U.S.C. § 4311, an
appellant must prove by preponderant evidence that: (1) he performed duty or
4
has an obligation to perform duty in a uniformed service of the United States;
(2) the agency denied him employment, or any benefit of employment; and (3) the
denial was due to the performance of duty or obligation to perform duty in the
uniformed service, i.e., that the appellant’s uniformed service was a “substantial
or motivating factor” in the agency’s action. The agency may defend by showing
that it would have taken the same action even in the absence of the improper
motivation. Sheehan v. Department of the Navy, 240 F.3d 1009, 1013 (Fed. Cir.
2001); McMillan v. Department of Justice, 120 M.S.P.R. 1, ¶ 19 (2013).
¶8 For the reasons explained in the initial decision, we agree with the
administrative judge that the appellant did not show that the agency’s failure to
appoint him to a career position any earlier was due to his performance of duty or
obligation to perform duty in the uniformed service. ID at 4; IAF, Tab 7. We
also agree with the administrative judge that the agency showed that it had a
legitimate, nondiscriminatory reason for waiting to award him a career
appointment. ID at 4 n.1. Specifically, the collectively bargained seniority rules
provide that employees in the temporary workforce receive priority for career
appointments based on seniority, and there were several more senior temporary
employees at the appellant’s facility who received career appointments ahead of
the appellant before a career position opened up for him. IAF Tab 10 at 10-12,
28, 34-46, 50-54, 58-62.
¶9 We understand that the appellant is not familiar with Board practices and
procedures. PFR File, Tab 1 at 4, Tab 4 at 4. However, we find that the
administrative judge fully informed him of what he needed to show in order to
prove his USERRA claim and of the deadline for doing so. IAF, Tab 11. In any
event, as explained below, the appellant has not offered any evidence or argument
on review that would warrant a change in the outcome of the appeal.
¶10 To the extent that the appellant is arguing on review that the agency
violated his veterans’ preference rights by not placing him ahead of nonveterans
on the seniority list, PFR File, Tabs 1, 4, we find that the Board lacks jurisdiction
5
to hear veterans’ preference claims under USERRA, see Davis v. Department of
Defense, 105 M.S.P.R. 604, ¶ 16 (2007); Gaston v. Peace Corps, 100 M.S.P.R.
411, ¶ 7 (2005); see also Metzenbaum v. Department of Justice, 82 M.S.P.R. 700,
¶ 5 (1999) (explaining that the Board’s jurisdiction in a USERRA appeal is
limited to the issue of whether the agency violated USERRA). To the extent that
the appellant is arguing that the agency treated him less favorably than similarly
situated nonveterans, PFR File, Tabs 1, 4, we find that the other individuals who
received career appointments first were more senior to the appellant and therefore
were not similarly situated to him for purposes of career appointment, cf. Martir
v. Department of the Navy, 81 M.S.P.R. 421, ¶ 9 (1999) (finding that the
appellant made a nonfrivolous allegation of jurisdiction under USERRA by
alleging that he was a veteran, the agency denied him permanent employment in
any of four vacant positions, and the agency offered permanent appointments to
these positions to similarly situated nonveterans). Furthermore, even if the
agency erred as a matter of law by failing to apply veterans’ preference to the
appellant’s seniority standing, there is still no evidence that the appellant’s
uniformed service was a substantial or motivating factor in the agency’s actions. 2
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
2
We do not reach the issue of whether the agency actually violated the appellant’s
veterans’ preference rights. That issue was for the appellant’s VEOA appeal, in which
there is already a final decision.
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 U.S. 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 U.S. 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
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.