UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ALTOINE BARKER,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

CH-0752-16-0158-I-1

DATE: December 14, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Altoine Barker, Chicago, Illinois, pro se.

Heather L. McDermott, Esquire, Chicago, Illinois, 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 his removal 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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 The agency proposed the appellant’s removal from his City Carrier position. 

Initial Appeal File (IAF), Tab 7 at 42-51. The union filed a grievance on his 

behalf challenging the proposed action. Id. at 52-56; IAF, Tab 17 at 4. The

agency issued a decision imposing the removal. IAF, Tab 7 at 58-60. 

Meanwhile, the appellant also filed the instant appeal challenging his removal. 

IAF, Tab 1. The agency and the union subsequently settled the grievance. IAF, 

Tab 17. The administrative judge issued an initial decision that dismissed the 

appeal for lack of jurisdiction because the grievance settlement was a final 

settlement of all of the appellant’s challenges to his removal. IAF, Tab 34, Initial 

Decision (ID) at 2‐4. The appellant has filed a petition for review, the agency 

has responded, and the appellant has replied. Petition for Review (PFR) File, 

Tabs 1, 3‐4. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶3 For the first time on review, the appellant includes the entire U.S. Postal 

Service and National Association of Letter Carriers Joint Contract Administration 

Manual and asserts that his removal violated the contract. PFR File, Tab 1 at 3, 

6-473. We find that the appellant has not shown that this evidence and argument 
3

previously was unavailable despite his due diligence and thus we do not consider 

it. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980); 5 C.F.R. 

§ 1201.115(d). In any event, it is immaterial to the dispositive jurisdictional 

issue and thus would not provide a basis for disturbing the initial decision. 

Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980). 

¶4 On review, the appellant asserts, as he did below, that he should not be 

bound by the settlement agreement because the union represented him regarding 

the proposal but acted on its own behalf when it settled his removal. PFR File, 

Tab 1 at 3. We disagree. 

¶5 When an employee chooses to file and settle a grievance by agreeing to 

lesser discipline, that course of action is presumptively voluntary and therefore 

divests the Board of jurisdiction over the underlying matter. Rhett v. U.S. Postal 

Service, 113 M.S.P.R. 178, ¶ 8 (2010); Swink v. U.S. Postal Service, 

111 M.S.P.R. 620, ¶ 9 (2009), aff’d, 372 F. App’x 90 (Fed. Cir. 2010), overruled 

on other grounds by Abbott v. U.S. Postal Service, 121 M.S.P.R. 294 (2014). 

¶6 Here, the appellant submitted arguments in support of the grievance 

regarding the proposed removal. IAF, Tab 7 at 52-56. He acknowledged that the 

union was representing him when he wrote to his representative stating his 

position regarding the grievance. IAF, Tab 26 at 5-8. After the agency issued its 

removal decision, the union and the agency entered into a Step B settlement

regarding the grievance, agreeing to, among other things, reduce the notice of 

removal to a letter of warning, return the appellant to work, and make him whole 

from the period of his removal until his return to work. IAF, Tab 17 at 4‐8. The 

agreement stated that it was a complete and final settlement of the grievance. 

Id. at 8. The appellant has not provided any evidence that he involuntarily 

entered into the agreement, was unaware of the union’s activities, or did not 

designate the union to act on his behalf. 

¶7 Moreover, we find that the appellant failed to meet his burden of 

establishing that he reserved his Board appeal rights regarding the removal. 
4

Johnson v. U.S. Postal Service, 108 M.S.P.R. 502, ¶ 16 (2008), aff’d, 

315 F. App’x 274 (Fed. Cir. 2009). Considering the appellant’s participation in 

the grievance process and the fact that he accepted a substantially reduced penalty 

as a result of the agreement, we find that he has not rebutted the presumption that 

he waived his Board appeal rights. Thus, we find that the administrative judge 

properly dismissed the appeal for lack of jurisdiction. See Swink, 111 M.S.P.R. 

620, ¶ 11. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS2

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. 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. 

 

2

The administrative judge afforded the appellant mixed-case appeal rights. However, 

when, as here, the Board lacks jurisdiction over an appeal, we provide notice of 

nonmixed-case appeal rights. Conforto v. Merit Systems Protection Board, 713 F.3d 

1111, 1117-19 (Fed. Cir. 2013). We have provided the appellant the proper review 

rights here. 
5

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 

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:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board