                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     WANDA F. BRUMFIELD,                             DOCKET NUMBER
                  Appellant,                         AT-3443-16-0093-I-1

                  v.

     SOCIAL SECURITY                                 DATE: April 15, 2016
       ADMINISTRATION,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Wanda F. Brumfield, Wesley Chapel, Florida, pro se.

           Jerome M. Albanese and Melanie N. Williams, Atlanta, Georgia, 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     regulation or the erroneous application of the law to the facts of the case; the
     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         On October 31, 2015, the appellant filed a Board appeal in which she
     indicated that she was appealing a reduction in grade or pay and her “promotion,
     performance assessment.” Initial Appeal File (IAF), Tab 1 at 3. In subsequent
     pleadings, she further asserted that the agency had discriminated against her on
     the bases of her race and disability, denied her a reasonable accommodation, and
     improperly considered her absences due to her disability when it rated her
     successful instead of outstanding on her fiscal year 2015 performance assessment.
     IAF, Tab 9 at 9, Tab 10 at 4. She also claimed that the agency reduced her pay
     and demoted her by charging her leave for each occasion she left her cubical as a
     result of symptoms related to her disability, except for her lunch and break
     periods. 2 IAF, Tab 9 at 11‑12.
¶3          The agency moved to dismiss the appeal for lack of jurisdiction, asserting
     that the appellant had not alleged that she suffered an appealable action. IAF,


     2
       Such an argument appears to relate to the agency’s decision regarding the appellant’s
     request for reasonable accommodation in which it granted her liberal leave during the
     day if her medical condition required excessive time off the phone. IAF, Tab 13 at 27.
                                                                                            3

     Tab 8.   The administrative judge issued an order to show cause in which she
     informed the appellant of her burden of establishing Board jurisdiction and
     ordered the appellant to file evidence and argument to show that the appeal was
     within the Board’s jurisdiction. IAF, Tab 12. In response, the appellant asserted
     that the agency committed prohibited personnel practices, referenced regulations
     concerning an employment practices appeal, and submitted various documents
     concerning her discrimination complaint and leave usage. IAF, Tabs 13‑14.
¶4         Without holding the appellant’s requested hearing, the administrative judge
     issued an initial decision dismissing the appeal for lack of jurisdiction.          IAF,
     Tab 15, Tab Initial Decision (ID).        The administrative judge found that the
     appellant had failed to nonfrivolously allege that the agency reduced her rate of
     pay for her position as a Teleservice Representative and that her other claims
     did not confer Board jurisdiction. ID at 3. The administrative judge also found
     that, to the extent the appellant was attempting to bring an employment practices
     appeal, there was no indication that either she had sought a promotion in the
     competitive service or was an applicant who believed that an employment
     practice applied to her by the Office of Personnel Management violated a basic
     requirement in 5 C.F.R. § 300.103. ID at 3‑4.
¶5         The appellant has filed a petition for review in which she reiterates the
     arguments she raised below 3 and contends that the Board has jurisdiction over her


     3
       On review, as below, the appellant cites generally to the regulations concerning an
     employment practices appeal, but does not identify any particular employment practice
     she contends violated a basic requirement in 5 C.F.R. § 300.103. IAF, Tab 13 at 8-9;
     Petition for Review (PFR) File, Tab 1 at 13-14. Thus, we agree with the administrative
     judge that the appellant has not made a nonfrivolous allegation of Board jurisdiction
     over an employment practices appeal. ID at 3-4. Ordinarily, an appellant must receive
     explicit information on what is required to establish an appealable jurisdictional issue.
     Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985).
     Here, however, the appellant’s vague assertions below regarding an employment
     practices claim did not trigger a duty on the part of the administrative judge to provide
     her with her burden of proof over this claim. IAF, Tab 13 at 8-9. Even if the
     administrative judge improperly failed to provide such notice, any error did not
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     discrimination claims because her appeal is a mixed-case appeal. Petition for
     Review (PFR) File, Tab 1.        The agency has opposed the appellant’s petition. 4
     PFR File, Tab 3.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶6         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). Thus, it follows that the Board does not
     have jurisdiction over all matters alleged to be unfair or incorrect. Johnson v.
     U.S. Postal Service, 67 M.S.P.R. 573, 577 (1995). The appellant bears the burden
     of proving by preponderant evidence 5 that her appeal is within the Board’s
     jurisdiction. 5 C.F.R. § 1201.56(b)(2)(i)(A). Having considered the appellant’s
     submissions below and on review, we agree with the administrative judge that the
     appellant has not raised any claim that would be within the Board’s authority to
     address. ID at 4.
¶7         The Board generally has jurisdiction to review an appeal of a reduction in
     grade or pay.       Simmons v. Department of Housing & Urban Development,
     120 M.S.P.R. 489, ¶ 5 (2014); see 5 U.S.C. § 7512(3)-(4).             The term grade is
     defined as “a level of classification under a position classification system.”
     5 U.S.C. § 7511(a)(3).       Pay means “the rate of basic pay fixed by law or

     prejudice the appellant’s substantive rights because the appellant’s pleadings
     demonstrate that she is aware of the jurisdictional prerequisites. See Panter v.
     Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory
     error that is not prejudicial to a party’s substantive rights provides no basis for reversal
     of an initial decision).
     4
       Although the agency’s response was due on January 17, 2016, PFR File, Tab 2, the
     deadline was extended until January 19, 2016, because January 17, 2016, was a Sunday
     and January 18, 2016, was a Federal holiday, see 5 C.F.R. § 1201.23. Accordingly, we
     find the agency’s response was timely filed and we deny the appellant’s motion to
     dismiss the agency’s response as untimely filed. PFR File, Tab 4.
     5
      A preponderance of the evidence is that “degree of relevant evidence that a reasonable
     person, considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4(q).
                                                                                      5

     administrative action for the position held by an employee.”              5 U.S.C.
     § 7511(a)(4). As the administrative judge found, the appellant’s assertion that the
     agency required her to take leave when not in her work area does not constitute a
     nonfrivolous allegation that the agency reduced her rate of basic pay or that she
     otherwise suffered an appealable reduction in pay or grade. ID at 3.
¶8        Similarly, the administrative judge properly found that the Board lacks
     jurisdiction over the appellant’s disagreement with her 2015 performance rating.
     See Manley v. Department of the Air Force, 91 F.3d 117, 119 (Fed. Cir. 1996)
     (finding that disagreement with a performance appraisal, unaccompanied by an
     otherwise appealable adverse action, is not independently appealable to the
     Board); Bambl v. Department of the Treasury, 113 M.S.P.R. 55, ¶ 9 (2010)
     (stating that the Board lacks jurisdiction over appeals of performance appraisal
     ratings except when raised in the context of either an individual right of action
     appeal or Uniformed Services Employment and Reemployment Rights Act
     appeal).
¶9        On review, the appellant contends that the Board has jurisdiction over her
     case as a mixed-case appeal. PFR File, Tab 1 at 4-5. A mixed case is one in
     which an employee alleges that an action otherwise appealable to the Board was
     based in whole or in part on prohibited discrimination, which is a prohibited
     personnel practice under 5 U.S.C. § 2302(b)(1). See 5 C.F.R. § 1201.151. As
     explained above, the appellant failed to establish that she suffered an action
     appealable to the Board. Absent an otherwise appealable action, the Board cannot
     consider a prohibited personnel practice claim of discrimination in violation of
     title VII of the Civil Rights Act of 1964. See Davis v. Department of Defense,
     105 M.S.P.R. 604, ¶ 16 (2007); Wren v. Department of the Army, 2 M.S.P.R. 1, 2
     (1980) (finding 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).
                                                                                        6

¶10         Accordingly, we find that the administrative judge properly dismissed the
      appeal for lack of jurisdiction.

                      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:
                                 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 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
                                                                                  7

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.
