Evelia Sosa v. Department of Agriculture ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EVELIA SOSA, DOCKET NUMBER
Appellant, DC-3443-15-0031-I-1
v.
DEPARTMENT OF AGRICULTURE, DATE: April 23, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Evelia Sosa, Olney, Maryland, pro se.
Sarah S. Tuck, Riverdale, Maryland, 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 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 the facts of the case; the
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
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).
BACKGROUND
¶2 The appellant, a GS-14 Agriculturalist, filed this appeal, alleging
discrimination by senior management officials who denied her right to compete
for certain positions at the agency over a 10-year period because of her age and
place of origin. Initial Appeal File (IAF), Tab 1 at 1, 4-6. The appellant alleged
that she was unable to return to her old position after volunteering for a
temporary duty assignment, and that the agency improperly used subjective
criteria in personnel selections. Id. at 5-6. In a jurisdictional order, the
administrative judge notified the appellant that she had the burden of proving that
the Board has jurisdiction over her appeal by preponderant evidence, and that the
Board lacks jurisdiction over a claim of discrimination or other prohibited
personnel practices in the context of a nonselection absent an otherwise
appealable action. IAF, Tab 3 at 1-3. In addition to repeating her allegations of
improper hiring practices and discrimination, the appellant responded that the
agency had retaliated against her because she had “chosen to comment and raise
issues professionally on matters” of policy and procedure. IAF, Tab 5 at 4-12.
She alleged that the agency’s actions “under the guise of reorganization and
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selection” amounted to a “defacto [sic] constructive demotion.” Id. at 4. The
appellant argued that the agency had effectively removed her from a position she
held for over 10 years “through the ruse of announcing a temporary assignment”
and failed to identify her role at the end of her temporary duty when the agency
placed another employee in her prior position. Id. at 4-5. The agency responded
that the appellant had not made a claim of constructive demotion within the
Board’s jurisdiction, as she did not allege that she was reassigned from a position
that was later reclassified upward. IAF, Tab 6 at 4-5. The agency further argued
that the remaining contested actions were not independently appealable to the
Board, and that the record lacked any evidence that the appellant had filed a
whistleblower reprisal claim with the Office of Special Counsel (OSC). Id. at 5.
¶3 In an initial decision issued without holding the requested hearing, the
administrative judge dismissed the appeal for lack of jurisdiction. IAF, Tab 7,
Initial Decision (ID). The administrative judge found that, despite notice in his
jurisdictional order that the Board generally lacks jurisdiction to consider the type
of complaints alleged in the initial appeal, the appellant had failed to address the
pertinent jurisdictional issue in her response. ID at 3. The initial decision noted
that the Board’s constructive demotion doctrine is strictly defined and narrow,
and that the appellant had failed to allege facts that would support a finding of
constructive demotion or a reassignment constituting a reduction in pay or grade.
ID at 4-6. Finally, the administrative judge found that the Board lacks
jurisdiction over the appellant’s allegations of discrimination and prohibited
personnel practices absent an otherwise appealable action. ID at 6.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 On review, the appellant argues that the administrative judge failed to
understand the complexity of her claim, relied on erroneous facts presented by the
agency, and confused the circumstances of her Board appeal with that of her
colleague. Petition for Review (PFR) File, Tab 1 at 4. The appellant alleges that
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the administrative judge “failed to require the agency to clarify” its personnel
action and identify her current assigned position. 2 Id. at 4-5. Regarding her
alleged constructive demotion claim, the appellant argues that the administrative
judge failed to recognize the agency’s demotion of her “professional status in
retaliation for speaking out” against agency actions and policy violations. Id. at
5. She maintains that the Board is the “appropriate forum” in which to raise her
complaints regarding subjective hiring criteria and other violations of the merit
system principles. Id. at 6. The appellant refers to the list of actions laid out in
5 C.F.R. § 1201.3 over which the Board has appellate jurisdiction, and she seems
to argue that her case involves a negative suitability determination and a denial of
within grade pay increase. See PFR File, Tab 1 at 7. The appellant asserts on
review that she is “not seeking protection” as an individual right of action (IRA)
appeal, and she maintains that she was subject to a personnel action directly
appealable to the Board. Id.
¶5 The agency responds that the petition for review fails to identify any
specific error of material fact in the initial decision and that the appellant has not
alleged any actions independently reviewable by the Board. PFR File, Tab 3 at
4-6. The agency argues that the appellant cannot pursue an IRA appeal at this
time because she has not first exhausted her remedies with OSC and she has not
been subjected to an otherwise appealable action. Id. at 4-5. The appellant
replies that her alleged detail or transfer was an appealable constructive demotion
despite no official change of her grade on a Standard Form 50. PFR File, Tab 5
at 5, 11. She argues that the administrative judge failed to recognize that she
identified prohibited personnel practices violating 5 U.S.C. § 2302 in her initial
appeal, including improper hiring practices, granting unfair advantage to certain
2
The appellant argues on review that d iscovery could demonstrate the agency’s
retaliation against her, PFR File, Tab 1 at 5, 7, but the record shows that she did not file
any motion regarding discovery below. Moreover, the appellant has not made a
compelling argument that discovery wou ld have helped her make a nonfrivolous
allegation of jurisdiction.
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candidates for selection, gross mismanagement, and abuse of authority. Id. at
8-9. The appellant argues that she was subjected to an appealable action allowing
her to raise a whistleblower reprisal case directly with the Board. Id. at 10.
¶6 The administrative judge correctly found that the appellant failed to make a
nonfrivolous allegation that the Board has jurisdiction over her appeal. The
Board has jurisdiction over appeals only from the types of agency actions
specifically enumerated by law, rule, or regulation. Perez v. Merit Systems
Protection Board, 931 F.2d 853, 855 (Fed. Cir. 1991). The Board’s regulation at
5 C.F.R. § 1201.3 lists types of actions that may be appealed to the Board. For
example, appealable actions under 5 U.S.C. chapter 75 include: a removal; a
suspension for more than 14 days; a reduction in grade; a reduction in pay; and a
furlough of 30 days or less. 5 U.S.C. §§ 7512, 7513(d); 5 C.F.R. § 1201.3(a)(1).
In addition, a reduction in grade or removal for unacceptable performance may be
appealable to the Board under 5 U.S.C. § 4303. 5 C.F.R. § 1201.3(a)(5). Despite
the appellant’s repeated assertions on review, see PFR File, Tab 5 at 8-10,
allegations of prohibited personnel practices under 5 U.S.C. § 2302(b) are not an
independent source of Board jurisdiction, Wren v. Department of the Army,
2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
¶7 On review, the appellant quotes for the first time the regulatory terminology
regarding Board jurisdiction over a denial of a within grade pay increase and
suitability action under 5 C.F.R. § 1201.3(a)(8), (9). See PFR File, Tab 1 at 7.
She has not established a reason for the Board to consider new legal arguments on
these bases, see 5 C.F.R. § 1201.115(d), and she has failed to allege any facts
regarding her own employment supporting a finding that she has been subjected
to either type of action. Further, the appellant’s complaints of subjective
selection bias are not a source of jurisdiction. See PFR File, Tab 1 at 6; see also
Wren, 2 M.S.P.R. at 2. She has alleged no facts that would reasonably raise a
claim that might be within the Board’s jurisdiction as an employment practices
appeal. See 5 C.F.R. §§ 300.103-300.104, 1201.3(a)(7).
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¶8 The appellant has failed to show error in the administrative judge’s analysis
and finding that she did not allege facts that would support a finding of
constructive demotion. See ID at 4-6. An employee is deemed to have been
subjected to an appealable constructive demotion or reduction in grade when she
is reassigned from a position that is later reclassified upward due to the issuance
of a new classification standard or correction of a classification error, provided
that the employee meets the legal and qualification requirements for the
higher-graded position, and she was permanently reassigned to a position
classified at a grade level lower than the grade level to which she would
otherwise have been promoted. Marcheggiani v. Department of Defense,
90 M.S.P.R. 212, ¶¶ 7-8 (2001); Russell v. Department of the Navy, 6 M.S.P.R.
698, 711 (1981). A constructive demotion claim can succeed only if the position
from which the appellant was reassigned was actually reclassified upward, and is
not viable when based on allegations that the position could or should have been
reclassified. Marcheggiani , 90 M.S.P.R. 212, ¶ 8. On review, the appellant has
not alleged that she was permanently reassigned to another position or that her
previous GS-14 position was reclassified upwards to a GS-15. See PFR File, Tab
1 at 4-5. Despite alleging that she returned from her temporary detail to an
“unknown and undefined position,” PFR File, Tab 5 at 12, she has not alleged
that she received a change in grade or pay.
¶9 To the extent that the appellant asserts that she is a whistleblower, we find
that the Board presently lacks jurisdiction over this matter as an IRA appeal. The
record indicates that the appellant has not filed, and does not intend to file, a
complaint of whistleblower reprisal with OSC, despite receiving notice of this
jurisdictional issue in the agency’s pleading on jurisdiction below. See IAF, Tab
6 at 5; PFR File, Tab 5 at 8-10. Thus, she has failed to exhaust her remedies with
OSC as she must do before pursuing an IRA appeal with the Board. See Yunus v.
Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).
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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.
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 want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
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 about the United States Court of Appeals for the Federal
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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, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, 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 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.