UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

LAKESHA BRYANT,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

DE-3443-16-0127-I-1

DATE: April 28, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Lakesha Bryant, Kansas City, Kansas, pro se.

Brian J. Odom, Esquire, Denver, Colorado, 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 1 A nonprecedential order is one that the Board has determined does not add 

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 Parties may cite nonprecedential orders, 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

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). 

¶2 On December 22, 2015, the appellant filed an apparently untimely appeal 

challenging her August 21, 2015 termination during her probationary period. 

Initial Appeal File (IAF), Tab 1. The administrative judge advised the parties of 

the timeliness issue and ordered the appellant to provide evidence and argument 

to show that the appeal was timely filed or that there was good cause to waive the 

filing deadline. IAF, Tab 3. The administrative judge also advised the appellant 

that the Board may not have jurisdiction over her appeal as a U.S. Postal Service 

employee. IAF, Tab 2. The agency filed a motion to dismiss the appeal for lack 

of jurisdiction. IAF, Tab 6. The appellant filed responses in support of her 

claims regarding the merits of her appeal and she asserted allegations of 

discrimination and retaliation. IAF, Tabs 7-12, 14-15. 

¶3 The administrative judge found that the appellant failed to establish that: 

(1) she was not preference eligible, a management or supervisory employee, or an 

employee engaged in personnel work in other than a purely nonconfidential 

clerical capacity; and (2) that she completed 1 year of current, continuous service 

in the same or similar positions. IAF, Tab 16, Initial Decision (ID) at 3. Thus, 

without addressing the timeliness issue, the administrative judge dismissed the 

appeal for lack of jurisdiction. 
3

¶4 The Board’s jurisdiction is limited to those matters over which it has been 

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems 

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). For a U.S. Postal Service

employee to be entitled to appeal a removal under 5 U.S.C. chapter 75, he must:

(1) be a preference eligible, a management or supervisory employee, or an 

employee engaged in personnel work in other than a purely nonconfidential 

clerical capacity; and (2) have completed 1 year of current continuous service in 

the same or similar positions. See 39 U.S.C. § 1005(a); 5 U.S.C. 

§ 7511(a)(1)(B)(ii); Clark v. U.S. Postal Service, 118 M.S.P.R. 527, ¶ 7 (2012); 

Toomey v. U.S. Postal Service, 71 M.S.P.R. 10, 12 (1996). For the purpose of 

this appeal, a “preference eligible” veteran is defined under 5 U.S.C. § 2108 as an 

individual who served on active duty in the armed forces during one of several 

proscribed periods and who was discharged or released from active duty “under 

honorable conditions.”

¶5 On review, the appellant challenges the merits of the removal action and she 

has submitted numerous documents that were not submitted below. Petition for 

Review (PFR) File, Tabs 1, 3. These documents include the appellant’s statement 

of what transpired during her employment, statements and emails from 

coworkers, medical documents in support of several of her absences, her

performance evaluation, and time sheets reflecting her absences and shift change. 

However, under 5 C.F.R. § 1201.115, the Board will not consider evidence 

submitted for the first time with the petition for review absent a showing that it 

was unavailable before the record was closed despite the party’s due diligence. 

Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). Because the 

appellant has failed to show that these documents were unavailable to her prior to 

the close of the record below, we have not considered them. 2

 Moreover, the 

 2 On review, the appellant also has submitted a copy of an email response dated 

January 7, 2016, from the agency’s Office of Inspector General Hotline acknowledging 

that she filed a Hotline Complaint with it. PFR File, Tab 3 at 10. The email simply 
4

appellant’s arguments do not challenge any of the administrative judge’s findings 

on the jurisdictional issue. Rather, all of her arguments and the documents she 

submitted on review address the merits of her appeal. 

¶6 The applicable law and the record evidence support the administrative 

judge’s findings that the appellant, who was terminated during her probationary 

period, is not a preference eligible, and there is no evidence that she was a 

management or supervisory employee, or an employee engaged in personnel work 

in other than a purely nonconfidential clerical capacity, and that she completed 

1 year of current, continuous service in the same or similar positions. ID at 3-4. 

Therefore, we discern no reason to disturb these explained findings. See Crosby 

v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to 

disturb the administrative judge’s findings where she considered the evidence as 

a whole, drew appropriate inferences, and made reasoned conclusions); 

Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 

(1987) (same). Accordingly, we find that the administrative judge correctly 

dismissed this appeal for lack of jurisdiction. 3

 

thanked the appellant for the information she provided and stated that, “[w]hile we 

can’t guarantee we can recover lost money or items, your information can help alert 

Investigators to problem areas and possibly prevent others from being victimized. Your 

concern has been received and documented in our data base.” Id. Even if the Board 

were to find this response to be new, it is not material as it does not show that the 

Board has jurisdiction over this appeal. See Russo v. Veterans Administration, 

3 M.S.P.R. 345, 349 (1980) (finding that the Board will not grant a petition for review 

based on new evidence absent a showing that it is of sufficient weight to warrant an 

outcome different from that of the initial decision). 

3 While the administrative judge noted that both timeliness and jurisdiction are at issue 

in this case, he dismissed the appeal without addressing the timeliness issue. Because 

the administrative judge correctly found that the Board does not have jurisdiction over 

this appeal, we find he did not commit error in apparently declining to make a finding 

as to whether it was timely filed. ID at 1. 
5

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

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
6

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.

______________________________

William D. Spencer

Clerk of the Board