UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

RHODERICK DWIGHT HAL L, Appellant,

v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER AT

- 0752

- 14

- 0246

- I

- 1

DATE: August 18, 2014



### THIS FINAL ORDER IS NONPRECEDENTIAL 1
Rhoderick Dwight Hall , Temple, Georgia, pro se.
Earl L. Cotton , Atlanta, Georgia, 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 the appeal on the basis of res judicata . Generally, we grant petitions such as this one only when: the initial decision contains erroneous findings of material fact; t he initial decision is based on an erroneous interpretation of statute

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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 signific antly contributing to the Board’ s case law. See 5 C.F.R. § 1201.117 (c).2
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 wi th 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 i n 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. Except as expressly m odified by this Final Order, we AFFIRM the initial decision. ¶2 This is the appellant’s fourth appeal in which he has claimed that the agency constructively suspended him between July 2009 and February 2011. 2 See Hall v. U.S. Postal Service, MSPB Docket No. AT

- 0752

- 10

- 0435

- I

- 1 , Initial Decision ( May 18, 2010); Hall v. U.S. Postal Service, AT

- 0752

- 10

- 0486

- I

- 1 , Initial Decision ( June 30, 2010); and Hall v. U.S. Postal Service , MSPB Docket No. AT

- 0752

- 11

- 0116

- I

- 1 , Initial Decision (Feb. 23, 2011 ). As the administrative judge correctly noted below , the initial decision in each of these cases became the Board’s final decision in that matter. Initial Appeal File (IAF), Tab 14, Initial Decision (ID); see 5 C.F.R. § 1201. 113

. ¶3 As the Board found in the previous appeals cited above, the appellant initiated his absence for the varying time periods at issue in each of those appeals

an d, consequently, failed to establish that the agency constructively suspended him during the time at issue in this matter

. U nder the doctrine of res judicata, a valid, final judgment on the merits of an action bars a second action involving the

2 To the extent that the appellant address es his separately

- docketed restoration claim in the instant petition for review , we note that the Board issued an initial decision in that appeal, which became the Board ’s final decision after neither party petitioned for its review

. Hall v. U.S. Postal Service , MSPB Docket No. AT

- 0353

- 14

- 0247

- I

- 1 , Initial Decision ( Mar. 12, 2014); see 5 C.F.R. § 1201.113

.3
same parti es or their privies based on the same cause of action . Peartree v. U.S. Postal Service , 66 M.S.P.R. 332 , 337 (1995). Res judicata precludes parties from relitigating issues that were, or could have been, raised in the prior action, and is applicable if: (1) the prior judgment was rendered by a forum with competent jurisdiction; (2) the prior judgment was a final judgment on the merits; and (3) the same cause of action and th e same parties or their privies were involved in both cases. See id . The administrative judge correctly found that each of the above

- listed criteria were met , and we agree that the instant appeal is barred by the doctrine of res judicata. 3

NOTICE TO THE APPELLANT REGARD ING YOUR FURTHER REVIEW RIGHTS You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review You may request review of this final decision on your discrimination claims by the Equal E mployment Opportunity Commission (EEOC). See Title 5 of the United States Code, section 7702(b)(1) ( 5 U.S.C. § 7702 (b)(1)). If you submit your request by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit your request via commercial delivery or by a method requiring a signature, it must be addressed to:

3 T he administrative judge twice stated in the initial decision that the Board lacks jurisdiction over the appeal. ID at 1

- 2, 4

. Whi le we affirm that this appeal is barred by res judicata, we modify the initial decision to clarify that dismissal is not based upon a lack of Board jurisdiction. Rather, the principle of claim preclusion is the proper basis for the appeal’s dismissal. Se e Peartree , 66 M.S.P.R. at 337.4
Office of Federal Operat ions Equal Employment Opportunity Commission 131 M Street, NE

Suite 5SW12G Washington, D.C. 20507 You should send your request to EEOC no later than 30 calendar days after your receipt of this order. If you have a representative in this case, and your repr esentative receives this order before you do, then you must file with EEOC no later than 30 calendar days after receipt by your representative. If you choose to file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action If yo u do not request EEOC to review this final decision on your discrimination claims, you may file a civil action against the agency on both your discrimination claims and your other claims in an appropriate United States district court. See 5 U.S.C. § 7703 (b)(2). You must file your civil action with the district court no later than 30 calendar days after your receipt of this order. If you have a representative in this case, and your representati ve receives this order before you do, then you must file with the district court no later than 30 calendar days after receipt by your representative. If you choose to file, be very careful to file on time. 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 of5
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e

- 5 (f) and 29 U.S.C. § 794a

.

FOR THE BOARD:

Washington, D.C. ______________________________ William D. Spencer Clerk of the Board