UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

KIZZY M. DAVIS, Appellant,

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

- 0752

- 15

- 1152

- I

- 1

DATE: July 7, 2016



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Kizzy M. Davis , High Point, North Carolina, pro se. Greg Allan Ribreau , Charlotte, North Carolina, for the agency.

BEFORE
Susan Tsui Grundmann, Chairman Mark A. Robbins, Member

FINAL ORDER ¶1 The appellant has filed a pet ition for review of the initial decision, which dismissed her probationary termination 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 initi al 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1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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 be en 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 consis tent 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 d ecision. 5 C.F.R. § 1201.113 (b).

BACKGROUND ¶2 In this appeal, the appellant indicated that she was a preference

‐ eligible
EAS

- 18 Personn el Processing Specialist with 8 months of Government service and that she was serving in a probationary period at the time of the action being appealed. Initial Appeal File (IAF), Tab 1 at 1. She included a copy of a PS

- 50
Notification of Personnel Actio n form
, which indicated that the agency had terminated her during her probationary period for unacceptable conduct. Id. at 4. In addition to the acknowledgment order in which the administrative judge gave the appellant notice of her burden to establish j urisdiction over her appeal, the administrative judge also issued a separate jurisdictional order notifying the appellant exactly what she must allege to be entitled to a hearing on the j urisdictional issue. IAF, Tabs 2

- 3. The appellant did not respond t o either order

. ¶3 Without holding the requested hearing, the administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant failed to nonfrivolously allege that she was an employee with the 1

- year of current
continuous servi ce necessary for the Board to have jurisdiction over her appeal

. IAF, Tab 7, Initial Decision (ID). In her timely filed petition for review, the appellant cites regulations regarding Postal Service employees’ appeal rights3

when pursuing both a grievance and a Board appeal on the same matter. Petition for Review (PFR) File, Tab 1 at 2

- 3. The appellant contend s that the agency has employed her since September 11, 2001, but she also concedes that the agency terminated her during her probationary period. I d. at 3. Additionally, she challenges the agency’s reasons for her termination. Id. at 3

- 5. The agency responds in opposition. PFR File, Tab 3.

DISCUSSION OF ARGUME NTS ON REVIEW ¶4 For a Postal Service employee to appeal a removal under 5 U.S.C. chapter 75, s he must: (1) be a preference eligible, a management or supervisory employee, or an employee engaged in personnel work in other than a purely
nonconfiden tial clerical capacity; and (2) have completed 1 year of current
continuous service in the same or similar positions

. E.g. , Clark v. U.S. Postal
Service , 118 M.S.P.R. 527 , ¶ 7 (2012) (citing 39 U.S.C. § 1005 (a); 5 U.S.C. § 7511 (a)(1)(B)(ii) )

. ¶5 The appellant alleged that she is entitled to veterans’ preference. IAF,
Tab 1 at 1 . Although she offered no evidence in support of her assertion
, the agency did not challenge it. Nevertheless, even if we were to credit the appellant’s unsupported assertion, 2 we would find that she failed to make a nonfrivolous allegation that, if proven, could establish that the Board has jurisdiction over her app eal because both her factual allegations and t he document she submitted with her appeal establish that she lacks the 1 year of current continuous service required for a preference

- eligible Po stal Service employee to appeal a removal to the Board. As noted above, the appellant explicitly stated
that she had 8 months of Federal service and acknowledged on her appeal form

2 The administrative judge noted that “it appears” the appellant was in a management position and was performing personnel work , but she made no finding in that regard

. ID at 3. Although the record indicates that the appellant was a personnel processing

s pecialist
, she did not allege that she was engaged in personnel work in other than a purely nonconfidential clerical capacity. See 39 U.S.C. § 1005 (a).4

that she was serving in a probationary, trial, or initial service period at the time of the action she was appealing, which, according to the PS

- 50 form she included, was her termination during her probationary period. IAF, Tab 1 at 1, 4. Therefore, g iven the entirety of the appellant’s submissions below, we agree with the administrative judge that the appellant failed to make a nonfrivolous allegation that, if proven, would establish Board jurisdiction over her termination

. ID at 3. ¶6 The appellant’s arguments on review do not demonstrate that the administrative judge erred. The appellant does not explain how the regu lations
she cites regarding the election of a Postal Service employee to proceed before the Board or through the negotiated grievance proc edure apply to this action. PFR File, Tab 1 at 2

- 3. Moreover, n othing in the record indicates that the appellant fil ed a grievance over her termination. ¶7 Although the appellant asserts on review that she has been employed by the
Postal Service since September 11, 2011, she provides no support for her
assertion and implies that this alleged service consisted of temporar y or term appointments, claiming that
, “I finally made career on December 27, 2014.” Id.

at 3. Consistent with that assertion, she goes on to acknowledge in her petition
for review that, “[o]n August 20, 2015, I was terminated 4 months short of my probationary year.” Id

. The appellant’s remaining allegations on review concern
the merits of her termination and do not address the jurisdictional issue. Id.

at 4

- 5. Thus
, we find that the appellant’s assertions on review bolster the
admi nistrative judge’s determination that the appellant failed to make a nonfrivolous allegation of Board jurisdictio n over this appeal and thus, that she

was not entitled to a hearing on that issue . Accordingly, we de ny the appellant’s petition for review.5

NOTICE TO THE APPELL ANT 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

co urt 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. § 7 703 (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. Pinat v. Office of Personnel Management
, 931 F.2d 1544 (Fed. Cir. 1991). If you need further info rmation 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 is av ailable 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 securin g 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 S ystems Protection Board appellants before the Federal Circuit. The6

Merit Systems Protection Board neither endorses the services provided by any attorney nor warrants that any attorney will a ccept representation in a given case.

FOR THE BOARD:

Washington, D.C. ______________________________ Jennifer Everling Acting Clerk of the Board