                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     GLORIA H. LOJEWSKI,                             DOCKET NUMBER
                   Appellant,                        AT-0353-16-0069-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: October 11, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Bensy Benjamin, Esquire, Washington, D.C., for the appellant.

           Margaret L. Baskette, Esquire, Tampa, Florida, 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     dismissed her appeal as withdrawn. For the reasons discussed below, we GRANT
     the appellant’s petition for review, VACATE the initial decision dismissing the
     appeal as withdrawn, and DISMISS the appeal for lack of jurisdiction.



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                      BACKGROUND
¶2        The appellant, a nonpreference-eligible City Carrier with the agency, filed a
     Board appeal alleging that the agency violated her restoration rights when it
     failed to comply with a grievance decision requiring it to provide her with a
     limited-duty work assignment within her medical restrictions and a retroactive
     pay adjustment. Initial Appeal File (IAF), Tab 1 at 1, 4, 6, Tab 8 at 14. The
     agency moved to dismiss the appeal, arguing that the Board lacked jurisdiction
     over the appeal because: (1) the appellant had settled her restoration claim during
     the grievance process prior to filing her Board appeal and had not reserved the
     right to appeal to the Board; and (2) the Board lacked authority to enforce the
     grievance settlement. IAF, Tab 8 at 4-12. With its motion to dismiss, the agency
     submitted a copy of a grievance decision, dated September 16, 2015, which
     indicated that the agency and the appellant had settled the appellant’s grievance
     regarding her restoration claim approximately a month before she filed her Board
     appeal. Id. at 14-17; see IAF, Tab 1 at 1.
¶3        On January 12, 2016, the administrative judge ordered the appellant to
     submit evidence and argument in support of her position if: (1) she disagreed that
     the issues that she raised in her Board appeal were settled during the grievance
     process; or (2) she disagreed that the Board lacked jurisdiction over her appeal
     due to the settlement of her grievance. IAF, Tab 10 at 2. On January 26, 2016,
     the appellant’s counsel filed a pleading indicating that she was withdrawing from
     representing the appellant. 2 IAF, Tab 12 at 4. The pleading further stated that
     the appellant did not intend to file a brief in response to the January 12, 2016


     2
        When the appellant initially filed her Board appeal, she was represented by
     Matthew Ward, Esquire. IAF, Tab 1 at 3. Mr. Ward withdrew from representing the
     appellant on November 19, 2015. IAF, Tab 7 at 4. The appellant was subsequently
     represented by Bensy Benjamin, Esquire, from December 22, 2015, until Ms. Benjamin
     withdrew as counsel on January 26, 2016. IAF, Tab 9 at 2, 12 at 4. On review, the
     appellant is again represented by Ms. Benjamin. PFR File, Tab 1 at 8-9, 13, Tab 3
     at 16.
                                                                                         3

     order, and that she “anticipat[ed] withdrawing her [a]ppeal by the end of the
     week.” Id.
¶4        However, the appellant did not file a notice of withdrawal, and on
     February 10, 2016, the administrative judge issued an order directing the
     appellant to notify her by February 16, 2016, if she wished to continue to pursue
     her appeal. 3 IAF, Tab 14 at 1. The administrative judge informed the appellant
     that if she failed to respond to the February 10, 2016 order, she would interpret
     the appellant’s silence as an expression that she did not oppose her appeal being
     dismissed as withdrawn. Id.
¶5        The appellant did not respond to the order, and on February 17, 2016, the
     administrative judge issued an initial decision dismissing the appeal as
     withdrawn. IAF, Tab 15, Initial Decision (ID). The appellant has filed a petition
     for review of the initial decision, in which she contends that the administrative
     judge erred in dismissing the appeal as withdrawn. Petition for Review (PFR)
     File, Tab 3 at 9-10.   She also argues that the Board has jurisdiction over the
     appeal because she intended to appeal from a September 5, 2015 Final Agency
     Decision (FAD) on a formal equal employment opportunity (EEO) complaint
     regarding a restoration claim, in addition to seeking enforcement of the grievance
     settlement. Id. at 11-15. The agency has responded in opposition to the petition
     for review. PFR File, Tab 7.
¶6        On July 27, 2016, the Board issued a show cause order directing the parties
     to submit evidence and argument regarding: (1) whether the restoration issues
     raised in the appellant’s EEO complaint were identical to those resolved in the
     grievance settlement; and (2) whether the grievance settlement precluded the
     appellant from appealing the restoration issues raised in her EEO complaint to the



     3
       The administrative judge also ordered the appellant to file a response to the
     jurisdictional issues raised in the January 12, 2016 order if she wished to pursue her
     appeal. IAF, Tab 14 at 1.
                                                                                       4

     Board. PFR File, Tab 8 at 3. Both parties responded to the show cause order.
     PFR File, Tabs 9-12.

                     DISCUSSION OF ARGUMENTS ON REVIEW
     The administrative judge erred in dismissing the appeal as withdrawn.
¶7        An appellant’s withdrawal of an appeal is an act of finality that removes the
     appeal   from      the   Board’s     jurisdiction.     Lincoln v.    U.S.    Postal
     Service, 113 M.S.P.R. 486, ¶ 7 (2010). Generally, the Board will not reinstate a
     withdrawn appeal absent unusual circumstances, such as misinformation or new
     and material evidence. Wooten v. Office of Personnel Management, 86 M.S.P.R.
     113, ¶ 5 (2000).   However, the relinquishment of one’s right to appeal to the
     Board must be by clear, unequivocal, and decisive action.           Id.; Phillips v.
     Department of the Air Force, 71 M.S.P.R. 381, 383 (1996); Etheridge v.
     Department of Veterans Affairs, 67 M.S.P.R. 53, 56 (1995).
¶8        In the initial decision, the administrative judge dismissed the appeal as
     withdrawn on the ground that the appellant failed to respond to the February 10,
     2016 order, without making any finding whether the appellant’s withdrawal was
     clear, unequivocal, and decisive. ID at 1-2. On review, the appellant contends
     that her failure to respond to the order was not a clear, unequivocal, or decisive
     action establishing that she wished to relinquish her right to appeal to the Board.
     PFR File, Tab 3 at 9-10. We agree.
¶9        Although the appellant’s counsel filed a pleading stating that the appellant
     anticipated withdrawing her appeal, the record does not reflect that the appellant
     took any affirmative action to withdraw the appeal or made any affirmative
     representations that she was withdrawing the appeal. See Hopkins v. Office of
     Personnel Management, 67 M.S.P.R. 289, 291 (1995) (finding that an
     administrative judge erred in dismissing an appeal as withdrawn when the only
     evidence in the record regarding the appellant’s withdrawal of her appeal was a
     memorandum reflecting that the appellant’s representative indicated during a
                                                                                        5

      teleconference   that   he   was   considering    withdrawing   the   appeal);   cf.
      Lincoln, 113 M.S.P.R. 486, ¶¶ 5, 8 (finding that an administrative judge correctly
      dismissed an appeal as withdrawn when an appellant filed a signed notice of
      withdrawal); Clark v. Department of the Treasury, 9 M.S.P.R. 48, 49-50 (1981)
      (finding that an administrative judge properly dismissed an appeal as withdrawn
      when the appellant’s representative stated on the record that the appellant was
      withdrawing an appeal, and both the appellant and his representative signed a
      settlement agreement). Under the circumstances, including the appellant’s pro se
      status at the time of the February 26, 2016 order, the lack of any affirmative
      action by her to withdraw the appeal, and the absence of any evidence that she
      understood or was informed that withdrawing the appeal was an act of finality, we
      find that the appellant’s failure to respond to a single order is not the kind of
      clear, unequivocal, and decisive action necessary to effectuate the withdrawal of
      an appeal.   See Wooten, 86 M.S.P.R. 113, ¶ 7 (finding that an administrative
      judge erred in dismissing an appeal as withdrawn when an appellant affirmatively
      responded to the administrative judge’s inquiry regarding whether he wished to
      withdraw the appeal, considering, among other things, the appellant’s pro se
      status and the fact that he continued to have questions about what would happen
      with his appeal); cf. Clark v. U.S. Postal Service, 123 M.S.P.R. 466, ¶¶ 4-15
      (2016) (affirming an initial decision dismissing a restoration appeal for lack of
      jurisdiction, rather than as withdrawn, when an appellant failed to respond to a
      jurisdictional order and she did not otherwise raise nonfrivolous allegations to
      establish jurisdiction over her appeal).          Accordingly, we find that the
      administrative judge erred in dismissing the appeal as withdrawn, and we vacate
      the initial decision dismissing the appeal as withdrawn.

      We dismiss the appeal for lack of jurisdiction.
¶10        We turn next to the question of whether the appeal should be dismissed for
      lack of jurisdiction, as opposed to be dismissed as withdrawn. After reviewing
                                                                                      6

      the parties’ responses to the show cause order and other pleadings on review, we
      find that the Board lacks jurisdiction over the appeal.
¶11         When an employee chooses to settle a grievance, that course of action may
      divest the Board of jurisdiction over the underlying matter. Hanna v. U.S. Postal
      Service, 101 M.S.P.R. 461, ¶ 8 (2006). The Board will review the terms of a
      settlement agreement and the surrounding circumstances to determine if it retains
      jurisdiction over an appeal that was settled in another procedural avenue.     Id.
      Even when a settlement agreement does not explicitly bar a Board appeal, the
      appellant must have expressly reserved the right to seek Board review for the
      Board to retain jurisdiction. Mays v. U.S. Postal Service, 995 F.2d 1056, 1060
      (Fed. Cir. 1993); Swink v. U.S. Postal Service, 111 M.S.P.R. 620, ¶ 11 (2009),
      aff’d, 372 F. App’x 90 (Fed. Cir. 2010).
¶12         Here, on or about January 23, 2015, the appellant’s union filed a grievance
      on her behalf, alleging that, from October 10, 2014, onwards, the agency violated
      a collective bargaining agreement and the agency’s Employee and Labor
      Relations Manual (ELM) when it failed to provide the appellant with a
      limited-duty work assignment within her medical restrictions. PFR File, Tab 11
      at 15, 20, 23-40.     Among other things, the appellant’s union alleged that
      limited-duty work assignments that the agency provided the appellant on
      October 23, 2014, and January 5, 2015, required her to work outside of her
      medical restrictions. Id. at 23-25, 29.
¶13         The September 16, 2015 grievance decision, which was signed by the
      appellant’s union representative and an agency representative, reflects that the
      parties settled the appellant’s grievance. IAF, Tab 8 at 14, 17. Pursuant to the
      settlement, the agency agreed that it violated the collective bargaining agreement
      when it failed to demonstrate that it conducted a search for a limited-duty work
      assignment within the appellant’s medical restrictions in accordance with the
      requirements of the ELM. Id. at 14. The agency further agreed that the appellant
      would be:
                                                                                        7

               [M]ade whole for any loss of wages and benefits beginning
               10/10/2014 until such time as [the appellant] is returned to full duty
               and/or application of the [applicable sections] of the [ELM] have
               been fulfilled.
      Id. The grievance decision does not reflect, and the appellant does not allege,
      that she reserved the right to file a Board appeal. Id. at 14-17; see PFR File,
      Tab 9.
¶14        The appellant has not attempted to disavow the grievance settlement, either
      below or on review. IAF, Tabs 1, 12; PFR File, Tabs 1, 3, 9; see Perry v. U.S.
      Postal Service, 78 M.S.P.R. 272, 278 (1997) (finding that, although an appellant
      did not reserve the right to appeal to the Board in a grievance settlement
      agreement, he could still establish jurisdiction over his Board appeal if he
      demonstrated that he involuntarily entered into the settlement agreement).
      Instead, in her initial appeal form, the appellant appeared to seek enforcement of
      the grievance settlement through her Board appeal. IAF, Tab 1 at 6. However,
      the Board lacks jurisdiction to enforce a settlement agreement, such as the
      grievance settlement at issue here, that was reached in another forum and was not
      entered into the record of a Board appeal for enforcement purposes. Johnson v.
      U.S. Postal Service, 108 M.S.P.R. 502, ¶ 8 n.5 (2008) (finding that the Board has
      no authority to enforce or invalidate a settlement agreement reached in another
      forum), aff’d, 315 F. App’x 274 (Fed. Cir. 2009); Lopez v. U.S. Postal
      Service, 71 M.S.P.R. 461, 463 (1996) (finding that the Board lacked jurisdiction
      to enforce a settlement agreement that was not entered into the record for
      enforcement purposes).
¶15        On review, the appellant does not dispute that the grievance settlement
      divests the Board of jurisdiction over the matters raised in her grievance, or that
      the Board lacks jurisdiction to enforce the grievance settlement agreement. PFR
      File, Tabs 3, 9. However, for the first time on review, the appellant argues that
      the Board has jurisdiction over her appeal despite the grievance settlement,
      because she also intended to appeal from the September 5, 2015 FAD on her
                                                                                         8

      formal EEO complaint, in which she alleged that the agency discriminated against
      her based on age, sex, and disability when it: (1) attempted to make her work
      outside of her medical restrictions on October 29, 2014, and January 5-9, 2015;
      and (2) told her that there was no work within her medical restrictions on
      January 9, 2015.     PFR File, Tab 3 at 3-4, 11-15, Tab 9 at 2-9; IAF, Tab 8
      at 19-41, Tab 11 at 30-52, 418, 433-35. The appellant does not explain why she
      failed to raise this argument below, when, as here, the agency referenced the EEO
      complaint and the FAD in its pleadings below, and filed the FAD twice below.
      PFR File, Tab 3 at 3-4, 11-15, Tab 9; see IAF, Tab 8 at 5, 19-41, Tab 11 at 8,
      30-52.   Nevertheless, because the appellant alleges that her new argument
      implicates the Board’s jurisdiction over the appeal, and the issue of jurisdiction is
      always before the Board and may be raised by any party or sua sponte by the
      Board at any time during a Board proceeding, we will consider the appellant’s
      argument. See Lovoy v. Department of Health & Human Services, 94 M.S.P.R.
      571, ¶ 30 (2003) (finding that the issue of the Board’s jurisdiction is always
      before the Board, and it may be raised by either party or sua sponte by the Board
      at any time).
¶16         After considering the parties’ responses to the show cause order, we find
      that the appellant failed to demonstrate that she raised any appealable issues in
      her formal EEO complaint distinct from those raised and resolved in her
      grievance. PFR File, Tabs 3, 9. The September 16, 2015 grievance decision, the
      grievance form, and the union’s detailed contentions in support of the grievance
      demonstrate that the grievance settlement encompassed the appealable restoration
      issues raised in the appellant’s formal EEO complaint—that is, the agency’s
      failure to conduct a proper search for a limited-duty work assignment within the
      appellant’s medical restrictions, and the appellant’s claims that the agency
      attempted to make her work outside of her medical restrictions in the October 23,
      2014 and January 5, 2015 limited-duty work assignments.          IAF, Tab 8 at 14,
      19-41; PFR File, Tab 11 at 15, 20, 23-40.
                                                                                            9

¶17        On review, the appellant argues that the Board has jurisdiction over her
      appeal because in an informal EEO complaint that she filed on or about
      January 20, 2015, she alleged that agency managers harassed limited-duty
      employees, an issue that she contends is distinct from the restoration claims
      resolved in her grievance. PFR File, Tab 9 at 4, 6-9, Tab 11 at 14, 399. We
      disagree. As an initial matter, the appellant’s harassment claim was not accepted
      for investigation as part of her formal EEO complaint or addressed in the FAD,
      and the appellant does not contend that she objected to the issues accepted for
      investigation, despite being notified of the accepted issues and afforded the
      opportunity to do so.       PFR File, Tab 11 at 418, 458.      Moreover, even if the
      appellant’s harassment claim was included in her formal EEO complaint, the
      Board only could consider such a claim to the extent that it pertained to the issue
      of whether the agency’s denial of restoration was arbitrary and capricious. See
      Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 58 (2012), superseded by
      regulation on other grounds as recognized in Kingsley v. U.S. Postal
      Service, 123 M.S.P.R. 365, ¶ 10.       However, because the grievance settlement
      encompassed the appellant’s claim that she was denied restoration during the time
      period at issue in her formal EEO complaint, and the appellant did not reserve the
      right to appeal to the Board, the Board lacks jurisdiction to address this issue.
      See Swink, 111 M.S.P.R. 620, ¶ 11; Hanna, 101 M.S.P.R. 461, ¶ 8.
¶18        Contrary    to   the    appellant’s   assertions   on   review,   the   appellant’s
      discrimination claims in her formal EEO complaint also do not confer Board
      jurisdiction over her appeal.      PFR File, Tab 3 at 13.       Although a denial of
      restoration based on prohibited discrimination may be arbitrary and capricious,
      see Paszko v. U.S. Postal Service, 119 M.S.P.R. 207, ¶ 15 (2013), similar to the
      appellant’s harassment claims, the grievance settlement divested the Board of
      jurisdiction over the appellant’s claims that the agency violated her restoration
      rights, regardless of whether that denial was based on discrimination or some
      other reason. See Swink, 111 M.S.P.R. 620, ¶ 11; Hanna, 101 M.S.P.R. 461, ¶ 8.
                                                                                                   10

      Moreover,    the    Board     does   not   have     jurisdiction     over     the   appellant’s
      discrimination claims in the absence of jurisdiction over her restoration appeal or
      any other appealable action.         See Latham, 117 M.S.P.R. 400, ¶ 58; 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).
¶19         Thus, because the Board lacks jurisdiction over the appellant’s restoration
      claims, this is not a mixed case, and the Board lacks jurisdiction to consider the
      appellant’s claims under mixed-case procedures. 4              See 5 U.S.C. § 7702(a)(1)
      (providing Board jurisdiction over discrimination claims raised in connection
      with otherwise appealable actions); 29 C.F.R. § 1614.302(a)(2) (defining a
      mixed-case complaint as a complaint of discrimination “related to or stemming
      from an action that can be appealed to” the Board). Accordingly, we dismiss the
      appeal for lack of jurisdiction.

                         NOTICE TO THE APPELLANT REGARDING
                            YOUR FURTHER REVIEW RIGHTS
            This   Final    Order     constitutes   the    Board’s       final    decision   in   this
      matter. 5 C.F.R. § 1201.113. 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:
                                  United States Court of Appeals
                                      for the Federal Circuit
                                    717 Madison Place, N.W.
                                     Washington, DC 20439



      4
        On review, the appellant notes that the FAD provided mixed-case appeal rights. PFR
      File, Tab 3 at 13. However, the fact that the FAD provided mixed-case appeal rights is
      insufficient to confer jurisdiction over the appeal. Morales v. Social Security
      Administration, 108 M.S.P.R. 583, ¶ 5 (2008) (finding that the mere fact that an agency
      informed the appellant that she may have a right of appeal to the Board did not confer
      jurisdiction on the Board).
                                                                                 11

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.
      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.
