                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ROXANNE L. DUNN,                                DOCKET NUMBER
                  Appellant,                         CH-0752-14-0475-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: August 17, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Roxanne L. Dunn, Clinton Twp, Michigan, pro se.

           Tiffany J. Hall, Warren, Michigan, 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 of an alleged reduction in pay or grade. 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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).
¶2         The appellant filed an appeal requesting that the Board review her reduction
     in grade and pay, effective January 13, 2013. Initial Appeal File (IAF), Tab 1. 2
     She is a Contract Specialist, GS-1102-12, with the Army Contracting Command
     (ACC) in Warren, Michigan. IAF, Tab 16 at 63. The material facts underlying
     the appeal are not in dispute. The appellant was a Contract Specialist, GS-1102-
     13, Step 4, with the ACC – National Capital Region in Alexandria, Virginia. Id.
     In July 2013, her position was set to be relocated to New Jersey as part of the
     Base Realignment and Closure (BRAC) process. IAF, Tab 24 at 5. On April 24,
     2012, she requested compassionate reassignment to a location closer to Indiana so
     she could care for her mother who had been disabled by a stroke. Id.; see IAF,
     Tab 16 at 18. In October 2012, she applied through USA Jobs for a Contract
     Specialist, GS-1102-12, position with the ACC in Warren. IAF, Tab 24 at 6. The

     2
       The administrative judge properly declined to decide whether the appeal had been
     timely filed. See Ford v. U.S. Postal Service, 82 M.S.P.R. 327, ¶ 14 (1999) (if an
     administrative judge finds that the Board lacks jurisdiction over an appeal, he may
     dismiss it on that basis without addressing the issue of its timeliness). The appellant’s
     initial filing and her response to the timeliness order indicate that she had filed at least
     two formal equal employment opportunity complaints with the agency, one of which
     was settled by reassigning her to another GS-12 Contract Specialist position in Warren
     as of January 12, 2014. IAF, Tab 1 at 4-5, Tab 5 at 4-6; see IAF, Tab 9 at 8-9, 11.
                                                                                        3

     agency offered her a Contract Specialist, GS-1102-12, position that had been
     advertised under a different job announcement. Id. at 6, 22-26.        The position
     description and pay grade were the same for both jobs, but the position that the
     appellant was offered allowed for the payment of permanent change of station
     (PCS) expenses. Id. at 6. She accepted the position in Warren with PCS costs,
     effective January 13, 2013. Id.
¶3         On appeal, the appellant alleged that her transfer was involuntary, in part
     because she was hired for a position other than the one for which she had applied,
     and she claimed that the agency discriminated against her in 2012, based on her
     age and retaliated against her for her protected activity. IAF, Tab 5 at 6, Tab 10
     at 3, Tab 25 at 3. Although she requested a hearing, the administrative judge
     found that she was not entitled to one because she failed to nonfrivolously allege
     that the Board had jurisdiction over her appeal. See IAF, Tab 30 at 4, Tab 35,
     Initial Decision (ID) at 1. The appeal was thus decided on the written record. ID
     at 1. The administrative judge found that the Board lacked jurisdiction over the
     appeal and dismissed it. 3
¶4         On review, the appellant avers that she “did not request to have a lower
     grade when [the] Army command granted a compassionate reassignment for me to
     be closer to help care for mother who lost use of her right arm after a stroke.”
     Petition for Review (PFR) File, Tab 1 at 3. The appellant argues that the agency
     reassigned her to a lower grade job to cover her moving costs, to which she would
     have been entitled had she accepted a BRAC reassignment. Id. She also argues
     that in the new position, she has “no respect and ha[s] been put in a corner with
     little workload.” Id.

     3
       The administrative judge did not decide issues related to discrimination. The Board
     has long held that claims of prohibited personnel practices are not an independent
     source of Board jurisdiction. See Synan v. Merit Systems Protection Board, 765 F.2d
     1099, 1100-01 (Fed. Cir. 1985) (the Board lacks pendent jurisdiction over
     discrimination claims absent an appealable adverse action); 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).
                                                                                            4

¶5         With her petition for review, the appellant submitted a lengthy document
     prepared by an agency manager or supervisor at the Warren facility, documenting
     her   behavior     and      including   several     email   messages     supporting   the
     narrative. Id. at 6-27. She avers that the notes “were typed up totally behind my
     back and were simply e-mailed by [her] supervisor,” are based on untruths, and
     represent an “effort to keep [her] down.”           Id. at 4-5.    Any petition or cross
     petition for review that contains new evidence or argument must include an
     explanation of why the evidence or argument was not presented before the record
     below closed.      5 C.F.R. § 1201.114(b).        The record shows that management
     emailed the document to the appellant on April 9, 2015, after the close of the
     record.   PFR File, Tab 1 at 6.         Even if the document was unavailable to the
     appellant despite her due diligence before the record closed, it also must be
     material to form the basis for the Board to grant her petition for review. 5 C.F.R.
     § 1201.115(d).     That is, the newly submitted evidence must be of sufficient
     weight to warrant an outcome different from that of the initial decision. Russo v.
     Veterans Administration, 3 M.S.P.R. 345, 349 (1980).                 The submitted item
     documents the appellant’s conduct after her transfer to Warren, and does not
     pertain to the agency’s action transferring her there. 4           Accordingly, it is not
     material to the appeal. 5
¶6         To constitute an appealable action, a reduction in grade or pay must be
     involuntary.     Garcia v. Department of Homeland Security, 437 F.3d 1322,
     1328-29    (Fed.    Cir.    2006)   (en    banc);    Huyler   v.    Department   of   the

     4
      The appellant filed an equal employment opportunity complaint pertaining to her work
     environment at Warren. The complaint was settled, and she was transferred to a
     different position effective January 12, 2014. See IAF, Tab 9 at 8-9, 11.
     5
       On June 23, 2015, the appellant filed a motion requesting to submit an additional
     pleading based on new and material evidence. PFR File, Tab 6 at 3. We deny the
     motion. See Curtin v. Office of Personnel Management, 846 F.2d 1378-79 (Fed. Cir.
     1988) (holding that the Board has discretion to make evidentiary rulings in the course
     of proceedings before it); 5 C.F.R. § 1201.115(e) (providing that the Board has
     authority to consider any issue in an appeal before it).
                                                                                     5

Army, 101 M.S.P.R. 570, ¶ 7 (2006); see 5 C.F.R. § 752.401(b)(9). A reduction
in pay or grade that an employee accepts voluntarily is not within the Board’s
jurisdiction. O’Connell v. U.S. Postal Service, 69 M.S.P.R. 438, 443 (1996). The
appellant admitted that she accepted the compassionate reassignment, but asserts
that she did not understand she was accepting a reduction in grade. See IAF,
Tab 10 at 3, Tab 25 at 3, Tab 31. The undisputed facts, however, show that the
appellant preemptively requested a compassionate reassignment after she learned
she would be transferred to New Jersey under the BRAC process, and that the
agency granted her request.     IAF, Tab 24 at 5-6.      The agency’s reassignment
policy states that employees who request a compassionate reassignment may be
considered for lower-graded positions, do not have the right to priority
consideration for a higher grade, and normally will not be eligible for grade or
pay retention. IAF, Tab 32 at 17. The appellant elected to apply for a GS-1102-
12 position. IAF, Tab 24 at 5-6. The agency offered a GS-1102-12 position
advertised under a different announcement because assigning her to that position
would allow the agency to pay her PCS expenses. Id. at 6. Both the job for
which she applied and the job to which she was assigned were GS-12 positions.
The appellant did not allege any facts that, if proven, would establish that her
transfer to Warren was anything other than voluntary or that the agency sought to
deceive her about the grade of the position she accepted. 6 Accordingly, we affirm
the initial decision.




6
  The appellant also alleges she was erroneously denied a hearing; however, the
administrative judge correctly decided the appeal on the written record. See Hardy v.
Merit Systems Protection Board, 13 F.3d 1571, 1575 (Fed. Cir. 1994) (“a hearing is
appropriate where a petitioner raises nonfrivolous issues of fact alleging jurisdiction
which cannot be resolved simply on documentary evidence”).
                                                                                     6

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS 7
      You have the right to request review of this final decision by the United
States 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.
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
United States Court of Appeals for the Federal Circuit, you may visit our website


7
 The administrative judge afforded the appellant mixed-case review rights. ID at 8-9.
However, in the absence of Board jurisdiction, this is not a mixed case. We have
provided the appellant the proper review rights here. See, e.g., Axsom v. Department of
Veterans Affairs, 110 M.S.P.R. 605 (2009).
                                                                                7

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