                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JAMILLAH MARIE HARRIS,                          DOCKET NUMBER
                  Appellant,                         NY-0752-16-0156-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: June 9, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Jamillah Marie Harris, Lyndhurst, New Jersey, pro se.

           Anne M. Gallaudet, Esquire, New York, New York, 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).


     Document #: 1307433 v 1
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     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        The agency appointed the nonpreference‑eligible appellant to a Mail
     Handler Assistant position, effective August 9, 2014. Initial Appeal File (IAF),
     Tab 1 at 1, Tab 2 at 33, Tab 7 at 8‑9. Less than a year later, the agency removed
     the appellant from her position, effective July 26, 2015, based on charges of
     conduct unbecoming a U.S. Postal Service employee and failure to meet the
     attendance requirements of her position. IAF, Tab 2 at 21‑26.
¶3        Approximately 6 months later, on January 20, 2016, the appellant filed a
     Board appeal challenging her removal, in which she alleged that she had been
     sexually harassed by agency managers. IAF, Tab 1 at 3, 5. With her appeal form,
     the appellant submitted a large volume of documents, including copies of
     correspondence that she sent to her union representative, the Postmaster General,
     and the agency’s equal employment opportunity office, in which she described
     her claims of sexual harassment, and alleged that she was removed in retaliation
     for whistleblowing. IAF, Tab 2 at 9‑10, 17‑18, 30.
¶4        The administrative judge issued an acknowledgment order, which explained
     that, as a U.S. Postal Service employee, to establish the Board’s jurisdiction over
     her appeal, the appellant was required to demonstrate that she:          (1) was a
                                                                                            3

     preference-eligible employee, a management or supervisory employee, or an
     employee engaged in personnel work in other than a purely nonconfidential
     clerical capacity; and (2) had completed 1 year of current continuous service in
     the same or a similar position.      IAF, Tab 3 at 2 (citing 39 U.S.C. § 1005(a)
     and 5 U.S.C. § 2108). The administrative judge ordered the appellant to submit
     evidence and argument regarding the Board’s jurisdiction over her appeal. Id.
¶5           In response, the appellant submitted additional documents, including copies
     of correspondence that she sent to various Government officials regarding her
     removal and her claims of sexual harassment, IAF, Tab 5 at 3‑9, 15‑20, 26‑40,
     54‑59, 63‑71, 73‑75, and documents pertaining to a grievance that she filed
     regarding her removal, id. at 11‑12, 22‑25. The agency moved to dismiss the
     appeal for lack of jurisdiction. IAF, Tab 7. Subsequently, the appellant filed
     additional documents, including copies of her paychecks, documentation
     regarding her grievance, and additional correspondence to the Postmaster
     General. IAF, Tab 8.
¶6           Thereafter, the administrative judge issued an initial decision dismissing the
     appeal for lack of jurisdiction without holding the appellant’s requested hearing.
     IAF, Tab 10, Initial Decision (ID); IAF, Tab 1 at 2. 2 He found that the appellant
     failed to raise a nonfrivolous allegation that she was a U.S. Postal Service
     employee entitled to appeal her removal to the Board under 5 U.S.C. chapter 75.
     ID at 3. He further found that the appellant’s claims of whistleblower reprisal
     were not an independent source of Board jurisdiction because U.S. Postal Service
     employees are not entitled to seek corrective action under 5 U.S.C. § 1221. ID
     at 4.


     2
       The administrative judge declined to address whether the appeal was timely filed,
     having dismissed the appeal for lack of jurisdiction. ID at 4 n.2; Jafri v. Department of
     the Treasury, 68 M.S.P.R. 216, 221 (1995) (finding that, when an appeal was properly
     dismissed for lack of jurisdiction, an administrative judge correctly declined to address
     whether the appeal was timely filed), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (Table).
                                                                                           4

¶7         The appellant has filed a petition for review of the initial decision. Petition
     for Review (PFR) File, Tabs 1‑2, 4‑6. 3 The agency has not responded to the
     petition for review.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶8         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). An appellant who makes a nonfrivolous
     allegation of jurisdiction is entitled to a hearing at which she then must prove
     jurisdiction by a preponderance of the evidence.           Garcia v. Department of
     Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc); see 5 C.F.R.
     § 1201.56(b)(2)(i)(A).
¶9         A U.S. Postal Service employee may file a Board appeal under 5 U.S.C.
     chapter 75 only if she is covered by 39 U.S.C. § 1005(a) or 5 U.S.C.
     § 7511(a)(1)(B).   See 5 U.S.C. § 7511(b)(8).       Thus, as correctly stated by the
     administrative judge, to appeal an adverse action under chapter 75, a U.S. Postal
     Service employee 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. ID at 2; see Toomey v. U.S.
     Postal Service, 71 M.S.P.R. 10, 12 (1996).

     3
       After she filed her petition for review, the appellant attempted to submit several
     additional pleadings, but was advised by the Office of the Clerk of the Board that the
     Board’s regulations at 5 C.F.R. § 1201.114(a)(5) do not allow for these types of
     pleadings. PFR File, Tabs 8‑14. The Clerk of the Board advised the appellant that she
     could submit a motion requesting leave to file additional pleadings, explaining the
     nature and the need for the pleadings, and showing that the evidence was not readily
     available before the record closed. Id.; see 5 C.F.R. § 1201.114(a)(5), (k). The
     appellant did not file such a motion. Thereafter, on June 6 and June 8, 2016, the
     appellant submitted additional pleadings. PFR File, Tabs 15-16. Because the appellant
     similarly did not comply with the Board’s regulation that required her to file a motion
     and obtain leave to submit these additional pleadings, see 5 C.F.R. § 1201.114(a)(5), we
     have not considered these pleadings on review.
                                                                                           5

¶10         Here, it is undisputed that the appellant is not preference eligible. IAF,
      Tab 1 at 1, Tab 2 at 33, Tab 7 at 8‑9. Furthermore, the appellant was a Mail
      Handler Assistant and she has not alleged, either below or on review, that she was
      a management or supervisory employee, or an employee engaged in personnel
      work in other than a purely nonconfidential clerical capacity. IAF, Tabs 1-2, 5,
      7-8; PFR File, Tabs 1‑2, 4‑6. Accordingly, we agree with the administrative
      judge that the appellant failed to raise a nonfrivolous allegation that she was a
      U.S. Postal Service employee entitled to appeal her removal under 5 U.S.C.
      chapter 75. ID at 3.
¶11         On review, the appellant contends that the administrative judge’s paralegal
      failed to accept all of the evidence that she submitted below. 4 PFR File, Tab 5
      at 4, Tab 6 at 1.      The appellant attempted to file two additional submissions
      below, which were received after the record closed and the initial decision had
      been issued.     IAF, Tabs 12-13.       These submissions were rejected by the
      administrative judge and returned to the appellant. Id. In the acknowledgment
      order, the administrative judge notified the appellant when the record would close
      and that he would not accept any further evidence or argument on the issue of
      jurisdiction after the record closed. IAF, Tab 3 at 2. Therefore, we discern no
      error in the administrative judge’s failure to consider the appellant’s additional
      submissions. Blackmer v. Department of the Navy, 52 M.S.P.R. 571, 574 (1992)
      (finding that determining when to close the record is within the administrative
      judge’s sound discretion, provided that such discretion comports with basic
      requirements of fairness and notice); see 5 C.F.R. § 1201.43(c) (authorizing an


      4
        The appellant further asserts she wants her appeal to be reviewed by someone
      honorable and ethical. PFR File, Tab 5 at 4, Tab 6 at 1. We construe this allegation as
      a claim that the administrative judge was biased or prejudiced. In making a claim of
      bias or prejudice against an administrative judge, a party must overcome the
      presumption of honesty and integrity that accompanies administrative adjudicators.
      Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980). We find that the
      appellant has failed to meet that burden.
                                                                                              6

      administrative judge to refuse to consider any pleading that is not filed in a timely
      fashion).
¶12         The appellant further contends that the evidence she attempted to submit
      would have demonstrated that she was reinstated to a position with the agency
      “until August of 2016.” 5 PFR File, Tab 5 at 4, Tab 6 at 1. By this, it appears that
      the appellant may be arguing that she has Board appeal rights under 5 U.S.C.
      chapter 75 because she had completed 1 year of current continuous service in the
      same or similar positions at the time she filed her Board appeal. PFR File, Tab 5
      at 4, Tab 6 at 1. However, even assuming that the appellant completed 1 year of
      current continuous service in the same or similar positions, she failed to raise a
      nonfrivolous allegation that she was preference eligible, a management or
      supervisory employee, or an employee engaged in personnel work in other than a
      purely nonconfidential clerical capacity and, therefore, the Board lacks
      jurisdiction over her appeal under 5 U.S.C. chapter 75. Toomey, 71 M.S.P.R.
      at 12‑13.
¶13         We further agree with the administrative judge that the Board lacks
      jurisdiction over the appellant’s sexual harassment and retaliation claims, either
      as a separate appeal or as affirmative defenses. ID at 4. The administrative judge
      correctly found that employees of the U.S. Postal Service cannot file individual
      right of action (IRA) appeals seeking corrective action for retaliation for
      whistleblowing. 6 Id.; see Kapica v. U.S. Postal Service, 95 M.S.P.R. 556, ¶ 6


      5
        In the agency’s pleading below, it contended that it had placed the appellant in a leave
      without pay status pending arbitration proceedings on her grievance regarding her
      removal. IAF, Tab 7 at 5.
      6
         In so finding, the administrative judge erroneously referenced the Whistleblower
      Protection Act (WPA). ID at 4. The alleged retaliatory actions at issue here took place
      after the December 27, 2012 effective date of the Whistleblower Protection
      Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199, 126 Stat. 1465, and, therefore,
      the WPEA, rather than the WPA, applies to this appeal. IAF, Tab 1 at 3, Tab 2
      at 21-26; see WPEA § 202 (indicating that the WPEA would take effect 30 days after
      its enactment date of November 27, 2012). However, we find that this error was not
                                                                                              7

      (2004); Matthews v. U.S. Postal Service, 93 M.S.P.R. 109, ¶ 13 (2002).
      Furthermore, absent an otherwise appealable action, the Board lacks jurisdiction
      to consider the appellant’s claims of sexual harassment, retaliation, and
      prohibited personnel practices. Hicks v. U.S. Postal Service, 114 M.S.P.R. 232,
      ¶ 13 (2010) (finding that the Board lacks jurisdiction to consider claims of
      discrimination and retaliation absent an otherwise appealable action); Wren v.
      Department of the Army, 2 M.S.P.R. 1, 2 (1980) (finding that 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).
¶14         Finally, with her petition for review, the appellant has submitted documents
      that were not contained in the record below, the majority of which consist of:
      (1) additional correspondence that she sent to various individuals regarding her
      claims of sexual harassment, her removal, and her grievance; and (2) documents
      pertaining to attempts by the agency’s Office of Inspector General to question her
      about her numerous letters to the Postmaster General. PFR File, Tabs 1-2, 4. The
      Board generally will not consider evidence submitted for the first time on review
      absent a showing that: (1) the documents and the information contained in the
      documents were unavailable before the record closed despite due diligence; and
      (2) the evidence is of sufficient weight to warrant an outcome different from that
      of the initial decision. Carson v. Department of Energy, 109 M.S.P.R. 213, ¶ 21
      (2008), aff’d, 357 F. App’x 293 (Fed. Cir. 2009); 5 C.F.R. § 1201.115(d).
      Regardless of whether the evidence at issue was available before the record
      closed below, the appellant has failed to demonstrate that it would establish
      Board jurisdiction over her appeal and, consequently, the evidence is not material
      to the outcome of her case. Russo v. Veterans Administration, 3 M.S.P.R. 345,

      prejudicial   to the appellant’s substantive rights because nothing in the WPEA permits a
      U.S Postal    Service employee to file an IRA appeal. Panter v. Department of the Air
      Force, 22     M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not
      prejudicial   to a party’s substantive rights provides no basis for reversal of an initial
      decision).
                                                                                             8

      349 (1980) (stating 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). Accordingly, we will not
      consider this evidence.
¶15         In sum, for the reasons discussed above, we find that the administrative
      judge correctly concluded that the Board lacks jurisdiction over the appellant’s
      appeal.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS 7
            You have the right to request review of this final decision by the U.S.
      Court of Appeals for the Federal Circuit.
            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.
      Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
            If you want to request review of the Board’s decision concerning your
      claims    of   prohibited   personnel   practices   under    5   U.S.C.   § 2302(b)(8),
      (b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
      the Board’s disposition of any other claims of prohibited personnel practices, you
      may request review of this final decision by the U.S. Court of Appeals for the
      Federal Circuit or any court of appeals of competent jurisdiction. The court of
      appeals must receive your petition for review within 60 days after the date of this
      order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
      7
        The administrative judge did not afford the appellant notice of appeal rights under the
      WPEA. Although the administrative judge correctly found that the Board lacks
      jurisdiction over the appellant’s whistleblowing claims, the Board has an obligation to
      properly inform the appellant of the right to appeal that finding. We notify the
      appellant of her appeal rights under the WPEA in this Final Order.
                                                                                   9

to file, be very careful to file on time. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
review in one court of appeals, you may be precluded from seeking review in any
other court.
         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 about the U.S. Court of Appeals for the Federal Circuit 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.             Additional
information about other courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
         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
                                                                                 10

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.
