                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RUDOLPH MARTINEZ, JR.,                          DOCKET NUMBER
                 Appellant,                          DE-3443-14-0489-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: December 23, 2014
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Lance Taylor, Pueblo, Colorado, for the appellant.

           Britannia Ingrid Hobbs, Fort Carson, Colorado, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his 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


     *
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     regulation or the erroneous application of the law to 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 is employed as a Medical Support Assistant. Initial Appeal
     File (IAF), Tab 10 at 4. He filed an appeal alleging that the agency denied him
     the “opportunity for Sunday premium pay or equal pay opportunity.” IAF, Tab 1
     at 5. In response to the administrative judge’s acknowledgement order, which
     stated that the Board might not have jurisdiction over his appeal, IAF, Tab 3, the
     appellant stated that he was also claiming whistleblower reprisal, IAF, Tab 7.
     The administrative judge then issued an order to show cause that set forth the
     jurisdictional requirements for a whistleblower reprisal claim. IAF, Tab 8. In his
     initial decision, the administrative judge dismissed the appeal for lack of
     jurisdiction. IAF, Tab 12, Initial Decision (ID). He found that the appellant’s
     claim that he was denied premium pay was not an appealable action and that the
     Board lacked jurisdiction over both the appellant’s assertion that the agency
     violated the Equal Pay Act without an otherwise appealable action and the
     whistleblower reprisal claim because the appellant had not shown that he
     exhausted his administrative remedies before the Office of Special Counsel
     (OSC). ID at 2-6.
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¶3             The appellant has filed a timely petition for review arguing that the agency
          discriminated against him and denied him pay for premium time that he had
          already worked. Petition for Review (PFR) File, Tab 1. The agency has filed a
          response, PFR File, Tab 4, and the appellant has filed a reply, PFR File, Tab 5.

                          DISCUSSION OF ARGUMENTS ON REVIEW
     ¶4        First, we find that the administrative judge was correct that the Board does
          not have jurisdiction over the appellant’s claim that the agency denied him the
          opportunity to earn premium pay. ID at 2-3. The Board’s jurisdiction is not
          plenary; it 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). In this case, the appellant argues that the agency denied him
          the opportunity to rotate to a Sunday shift during which he would receive
          premium pay. IAF, Tab 1 at 5. However, the Board has consistently held that
          only agency assignments that result in a reduction of an employee’s “basic rate
          of pay” are appealable to the Board.            See Mitchell v. Department of
          Defense, 46 M.S.P.R. 154, 159 (1990). Accordingly, the administrative judge
          correctly concluded that the Board does not have jurisdiction over this issue.
     ¶5        Next, we find that the administrative judge was correct that the Board does
          not have jurisdiction over the appellant’s claim that the agency violated the
          Equal Pay Act of 1963, 29 U.S.C. § 206(d). ID at 3-4. Absent an otherwise
          appealable action, the Board lacks jurisdiction over discrimination and equal pay
          claims because 5 U.S.C. § 2302(b) is not an independent source of Board
          jurisdiction. See Morales v. Social Security Administration, 108 M.S.P.R. 583,
          ¶ 5 (2008) (citing Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980)).
     ¶6        Additionally, the administrative judge correctly found that the Board does
          not have jurisdiction over the appellant’s claim of whistleblower reprisal because
          the appellant failed to exhaust his administrative remedies before OSC. ID at
          4-6. The Board has jurisdiction over an individual right of action appeal if an
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     appellant exhausts his administrative remedies before OSC and makes
     nonfrivolous allegations that: (1) he engaged in whistleblowing activity by
     making a protected disclosure, and (2) the disclosure was a contributing factor in
     the agency’s decision to take or fail to take a personnel action.               Yunus v.
     Department of Veterans Affairs, 242 F.3d 1367, 1371-72 (Fed. Cir. 2001).
     Because the appellant failed to establish that he exhausted his administrative
     remedy before OSC, the Board lacks jurisdiction to consider his claim of
     whistleblower       retaliation.    See     Clarke    v.   Department      of   Veterans
     Affairs, 121 M.S.P.R. 154, ¶ 15 (2014).
¶7        Finally, we do not consider the appellant’s arguments on petition for review
     that he was not paid for premium time that he has already worked and that the
     agency discriminated against him. PFR File, Tab 1 at 4-6. The appellant has not
     shown that these arguments are based on new and material evidence or legal
     argument that, despite his due diligence, was not available when the record
     closed.     5 C.F.R. § 1201.115(d).       In any event, even if we considered these
     arguments, they would not change our finding that the Board lacks jurisdiction.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
          You have the right to request review of this final decision by the United
     States 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. See
     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
                                                                                  5

the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States 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 to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States 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 United States 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 http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
         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 at http://www.mspb.gov/probono for a list of attorneys who have
expressed interest in providing pro bono representation for Merit Systems
Protection Board appellants before the Federal Circuit. The Merit Systems
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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.
