                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SHARELL WASHINGTON,                             DOCKET NUMBER
                 Appellant,                          SF-0752-16-0008-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: July 29, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Guillermo Mojarro, Upland, California, for the appellant.

           Scott L. Zielinski, Esquire, Long Beach, California, 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.       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         This case involves an alleged failure to restore the appellant to employment
     following her partial recovery from a compensable injury.        In dismissing the
     appeal for lack of jurisdiction, the administrative judge made the following
     factual findings, among others: (1) the appellant was hired as a Mail Handler
     Assistant, a permanent, part-time position, in April 2014; (2) the appellant
     suffered an on-the-job injury in June 2014; (3) in April 2015, she was converted
     to a full-time career Mail Handler; (4) pursuant to the collective bargaining
     agreement, she was required to serve a 90-day probationary period as a Mail
     Handler; (5) on or about June 9, 2015, at her probationary review meeting, the
     appellant was informed that she was being terminated during her probationary
     period, effective that same day, due to her failure to remain gainfully employed,
     failure to perform in a manner that met the expectations of the position, and
     failure to meet both attendance requirements, and safe work habits; (6) at this
     same meeting, appellant signed and dated her employee probationary report and
     surrendered her Postal access badge and time card; and (7) the agency then
     mailed the appellant a copy of a Letter of Separation. Initial Appeal File (IAF),
     Tab 24, Initial Decision (ID) at 3-4.
                                                                                     3

¶3        The administrative judge stated that, to have any restoration rights under
     5 C.F.R. part 353 based on a compensable injury, an individual must establish
     that she was “separated or furloughed from an appointment . . . as a result of a
     compensable injury . . . .”   ID at 4 (quoting 5 C.F.R. § 353.103(b) (emphasis
     added)).    The administrative judge cited additional legal authority for the
     proposition that “as a result of a compensable injury” has been construed to mean
     that the separation was “substantially related to” the compensable injury and that
     receipt of workers’ compensation benefits is not conclusive proof that a removal
     is substantially related to a compensable injury.          The employee must
     “demonstrate that no cause aside from his compensable injury precipitated his
     removal.”   ID at 5 (quoting New v. Department of Veterans Affairs, 142 F.3d
     1259, 1264 (Fed. Cir. 1998)). Applying these principles to the facts of this case,
     the administrative judge found that, while one of the reasons for the appellant’s
     termination during her probationary period—“failure to meet attendance
     requirements”—could arguably be said to be causally related to her compensable
     injury, it was clear that the other reasons upon which her removal was based were
     unrelated to that injury. ID at 5. The administrative judge therefore found that
     the appellant failed to make a nonfrivolous allegation that her separation was
     based solely on her compensable injury. Id.
¶4        The appellant makes several arguments in her petition for review, including
     that: (1) she was not required to serve a probationary period once she became a
     Mail Handler; (2) the agency did not serve its letter of termination on her until
     September 2015; (3) she was still an employee at the time of her Board appeal;
     (4) the administrative judge improperly determined that she failed to make
     nonfrivolous allegations that her separation was based solely on her compensable
     injury; (5) the administrative judge committed an error of law in failing to find
     that the agency discriminated against her by not properly restoring her to
     employment; and (6) the administrative judge made improper determinations
     regarding the agency’s failure to provide her with requested discovery. Petition
                                                                                        4

     for Review (PFR) File, Tab 3. The agency filed a timely response. PFR File,
     Tab 5.

                                         ANALYSIS
¶5         In pertinent part, the Board’s regulations provide that a petition for review
     will be granted when the initial decision contains erroneous findings of material
     fact, and when 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. 5 C.F.R. § 1201.115(a)-(b). Under criterion (a), an alleged factual error
     must be material, meaning of sufficient weight to warrant an outcome different
     from that of the initial decision, and the petitioner must explain why the
     challenged factual determination is incorrect and identify specific evidence in the
     record that demonstrates the error.      Under criterion (b), the petitioner must
     explain how the error affected the outcome of the case. The Board will normally
     limit its review to issues actually raised in the petition for review.      5 C.F.R.
     § 1201.115.
¶6         The appellant’s assertions of error in her petition for review fail to meet the
     criteria of section 1201.115(a) or (b), in that they are simply conclusory
     assertions.    The appellant did not      explain   why the     challenged factual
     determinations are incorrect nor identify specific evidence in the record that
     demonstrates the error. For instance, the appellant stated in her petition that she
     was realleging all of her assertions contained in her pleadings in the regional
     office proceeding.   PFR File, Tab 3 at 4.     Stating that pleadings filed in the
     regional office proceeding are incorporated by reference into a petition for review
     does not satisfy the Board’s regulatory requirements; a petition for review must
     contain sufficient specificity for the Board to ascertain whether there is a serious
     evidentiary challenge justifying a complete review of the record, and the petition
     itself must identify any procedural or adjudicatory errors and explain how they
                                                                                         5

     affected the outcome of the initial decision. Hulett v. Department of the Navy,
     120 M.S.P.R. 54, ¶ 5 n.2 (2013).
¶7         Even if we were to credit the appellant’s contentions that she was not
     required to complete a second probationary period and that she did not receive the
     agency’s letter of termination until September 2015, that would not alter the
     administrative judge’s legal analysis.     Regardless of whether the appellant’s
     employment was terminated in June 2015 or September 2015, she still was
     required to make nonfrivolous allegations that “no cause aside from [her]
     compensable injury precipitated” her termination. 2        New, 142 F.3d at 1264.
     A nonfrivolous allegation is an assertion that, if proven, could establish the
     matter at issue. 5 C.F.R. § 1201.4(s). An allegation generally will be considered
     nonfrivolous when, under oath or penalty of perjury, an individual makes an
     allegation that: (1) is more than conclusory; (2) is plausible on its face; and (3) is
     material to the legal issues in the appeal. Id. The petition for review does not
     contain any nonfrivolous allegations that her compensable injury was the sole
     cause of the termination of her employment and that no cause aside from her
     compensable injury precipitated her termination. Similarly, the petition does not
     contain any nonfrivolous allegations that the appellant had not been separated
     from employment.
¶8         Because the appellant has not established that she was subjected to an
     action within the Board’s jurisdiction, we cannot adjudicate her claim of unlawful
     discrimination.   Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980)
     (explaining that, absent an otherwise appealable action, prohibited personnel
     practices under 5 U.S.C. § 2302(b) are not an independent source of Board
     jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).


     2
       Whether the appellant completed the requisite probationary period would be relevant
     in an adverse action removal appeal, but it is undisputed that the appellant is not a
     preference eligible or other category of employee with adverse action appeal rights.
     IAF, Tab 1 at 1 (item 9); 39 U.S.C. § 1005(a)(4).
                                                                                       6

¶9        Finally, the appellant’s claim that the administrative judge made improper
     determinations regarding the agency’s failure to provide her with requested
     discovery is without merit.       The appellant did not require discovery to make
     nonfrivolous allegations that her compensable injury was the sole cause of
     her termination.

                        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:
                                  U.S. 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.
                                                                                  7

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