                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KIZZY M. DAVIS,                                 DOCKET NUMBER
                   Appellant,                        DC-0752-15-1152-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: July 7, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Kizzy M. Davis, High Point, North Carolina, pro se.

           Greg Allan Ribreau, Charlotte, North Carolina, 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 probationary termination 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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         In this appeal, the appellant indicated that she was a preference‑eligible
     EAS-18 Personnel Processing Specialist with 8 months of Government service
     and that she was serving in a probationary period at the time of the action being
     appealed. Initial Appeal File (IAF), Tab 1 at 1. She included a copy of a PS-50
     Notification of Personnel Action form, which indicated that the agency had
     terminated her during her probationary period for unacceptable conduct. Id. at 4.
     In addition to the acknowledgment order in which the administrative judge gave
     the appellant notice of her burden to establish jurisdiction over her appeal, the
     administrative judge also issued a separate jurisdictional order notifying the
     appellant exactly what she must allege to be entitled to a hearing on the
     jurisdictional issue. IAF, Tabs 2-3. The appellant did not respond to either order.
¶3         Without holding the requested hearing, the administrative judge dismissed
     the appeal for lack of jurisdiction, finding that the appellant failed to
     nonfrivolously allege that she was an employee with the 1-year of current
     continuous service necessary for the Board to have jurisdiction over her appeal.
     IAF, Tab 7, Initial Decision (ID). In her timely filed petition for review, the
     appellant cites regulations regarding Postal Service employees’ appeal rights
                                                                                        3

     when pursuing both a grievance and a Board appeal on the same matter. Petition
     for Review (PFR) File, Tab 1 at 2-3. The appellant contends that the agency has
     employed her since September 11, 2001, but she also concedes that the agency
     terminated her during her probationary period.        Id. at 3.   Additionally, she
     challenges the agency’s reasons for her termination.       Id. at 3-5.   The agency
     responds in opposition. PFR File, Tab 3.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶4        For a Postal Service employee to appeal a removal under 5 U.S.C.
     chapter 75, she 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. E.g., Clark v. U.S. Postal
     Service, 118 M.S.P.R. 527, ¶ 7 (2012) (citing 39 U.S.C. § 1005(a); 5 U.S.C.
     § 7511(a)(1)(B)(ii)).
¶5        The appellant alleged that she is entitled to veterans’ preference.        IAF,
     Tab 1 at 1. Although she offered no evidence in support of her assertion, the
     agency did not challenge it.      Nevertheless, even if we were to credit the
     appellant’s unsupported assertion, 2 we would find that she failed to make a
     nonfrivolous allegation that, if proven, could establish that the Board has
     jurisdiction over her appeal because both her factual allegations and the document
     she submitted with her appeal establish that she lacks the 1 year of current
     continuous service required for a preference-eligible Postal Service employee to
     appeal a removal to the Board. As noted above, the appellant explicitly stated
     that she had 8 months of Federal service and acknowledged on her appeal form


     2
       The administrative judge noted that “it appears” the appellant was in a management
     position and was performing personnel work, but she made no finding in that regard.
     ID at 3. Although the record indicates that the appellant was a personnel processing
     specialist, she did not allege that she was engaged in personnel work in other than a
     purely nonconfidential clerical capacity. See 39 U.S.C. § 1005(a).
                                                                                          4

     that she was serving in a probationary, trial, or initial service period at the time of
     the action she was appealing, which, according to the PS-50 form she included,
     was her termination during her probationary period.             IAF, Tab 1 at 1, 4.
     Therefore, given the entirety of the appellant’s submissions below, we agree with
     the administrative judge that the appellant failed to make a nonfrivolous
     allegation that, if proven, would establish Board jurisdiction over her termination.
     ID at 3.
¶6         The appellant’s arguments on review do not demonstrate that the
     administrative judge erred. The appellant does not explain how the regulations
     she cites regarding the election of a Postal Service employee to proceed before
     the Board or through the negotiated grievance procedure apply to this action.
     PFR File, Tab 1 at 2-3.      Moreover, nothing in the record indicates that the
     appellant filed a grievance over her termination.
¶7         Although the appellant asserts on review that she has been employed by the
     Postal Service since September 11, 2011, she provides no support for her
     assertion and implies that this alleged service consisted of temporary or term
     appointments, claiming that, “I finally made career on December 27, 2014.” Id.
     at 3. Consistent with that assertion, she goes on to acknowledge in her petition
     for review that, “[o]n August 20, 2015, I was terminated 4 months short of my
     probationary year.” Id. The appellant’s remaining allegations on review concern
     the merits of her termination and do not address the jurisdictional issue.          Id.
     at 4-5.    Thus, we find that the appellant’s assertions on review bolster the
     administrative judge’s determination that the appellant failed to make a
     nonfrivolous allegation of Board jurisdiction over this appeal and thus, that she
     was not entitled to a hearing on that issue. Accordingly, we deny the appellant’s
     petition for review.
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                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.        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 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        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
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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.
