                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOSE MENDIOLA, JR.,                             DOCKET NUMBER
                  Appellant,                         DA-0842-14-0035-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: December 4, 2014
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Jose Mendiola, Jr., Brownsville, Texas, pro se.

           Mary E. Garza, Edinburg, Texas, 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
     affirmed the agency’s reconsideration decision denying him enhanced Customs
     and Border Protection Officer (CBPO) retirement coverage. Generally, we grant
     petitions such as this one only when:       the initial decision contains erroneous

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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. Except as expressly modified by this Final Order
     to apply the appropriate regulations, we AFFIRM the initial decision.

                                      BACKGROUND
¶2        The appellant is a Chief Supervisory CBPO, GS-1895-13. Initial Appeal
     File (IAF), Tab 4 at 78.         On September 5, 2013, the agency issued a
     reconsideration decision affirming its initial finding that he was not entitled to
     enhanced CBPO retirement coverage under the Federal Employees’ Retirement
     System. Id. at 16. The appellant filed an appeal with the Board alleging that the
     agency erred in not finding his current position a primary position because, due
     to staffing shortages, he is required to perform primary CBPO and first-line
     supervisory duties at least 50 percent of the time. IAF, Tab 1 at 5. The appellant
     also alleged that the agency erred by not considering his prior positions with the
     Department of Agriculture (Plant Protection Quarantine Officer, Supervisory
     Plant Protection Quarantine Officer, Supervisory Agriculture Inspector, and
     Supervisory Customs and Border Protection Agriculture Specialist), as primary
     positions for the purposes of enhanced CBPO retirement coverage. Id. at 5, 9.
     Following a hearing, the administrative judge issued an initial decision affirming
                                                                                              3

     the agency’s decision denying the appellant enhanced CBPO retirement
     coverage. IAF, Tab 17, Initial Decision (ID) at 1.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶3         The federal civil service retirement laws extend special retirement benefits
     to some people who serve as CBPOs.              See, e.g., 5 U.S.C. § 8412(d).        The
     appellant bears the burden of proving his entitlement to enhanced retirement
     coverage. Kroll v. Department of Homeland Security, 121 M.S.P.R. 526, ¶ 6
     (2014).     Eligibility for enhanced retirement coverage is strictly construed
     because it is more costly to the government than traditional retirement plans and
     often results in the retirement of important people at a time when they would
     have otherwise continued to work for a number of years. Id.
¶4         An employee’s service in both “primary” and “secondary” positions may
     count toward his eligibility for enhanced CBPO retirement coverage. 5 C.F.R.
     § 842.1003. 2    A primary position is a position classified within the CBPO
     (GS-1895) series or any successor position whose duties include the performance
     of work directly connected with activities relating to the arrival and departure of
     persons, conveyances, and merchandise at ports of entry. 5 C.F.R. § 842.1002.
     A secondary position is a position within the Department of Homeland Security
     that is either supervisory, i.e., a position whose primary duties are as a first-level
     supervisor of CBPOs in primary positions; or administrative, i.e., an executive,
     managerial, technical, semiprofessional, or professional position for which
     experience in a primary CBPO position is a prerequisite.                Id.   Employees

     2
       The initial decision cites to 5 C.F.R. Part 842, Subpart H, as the applicable regulations
     in the appeal. See, e.g., ID at 1, 5-6, 14. On July 18, 2011, the Office of Personnel
     Management (OPM) issued regulations specific to CBPO enhanced retirement coverage.
     Customs and Boarder Protection Officer Retirement, 76 Fed. Reg. 41,993 (July 18,
     2011) (codified at 5 C.F.R. Part 842, Subpart J). We considered this appeal under the
     regulations specific to CBPO enhanced retirement, and modify the initial decision
     accordingly. Although the language in 5 C.F.R. Part 842, Subpart H, and 5 C.F.R. Part
     842, Subpart J, differs considerably, the underlying principles are similar and we reach
     the same result as the initial decision.
                                                                                          4

     occupying secondary positions are only eligible for enhanced CBPO retirement
     coverage if they transferred directly from a primary position and completed 3
     years of service in a primary position.       5 C.F.R. § 842.1003(b)(1)-(2).       The
     agency considers the appellant’s current position, Chief Supervisory CBPO,
     secondary.    IAF, Tab 4 at 16-26.       Although the appellant transferred to his
     current position directly from a primary position, he only served in that
     immediately preceding primary position for about 7 months, and thus the agency
     found him ineligible for enhanced CBPO retirement coverage. Id. at 24-25. The
     administrative judge affirmed the agency’s decision and found that, although the
     appellant performs some primary duties in his current position, the agency
     correctly determined that his position is secondary because he supervises other
     supervisors. ID at 15.
¶5         On review, the appellant does not challenge, and we find no reason to
     disturb, the administrative judge’s determination that his current position is a
     secondary position. ID at 9-15; see 5 C.F.R. § 842.1002. The appellant also
     does not challenge, and we find no reason to disturb, the administrative judge’s
     finding that the positions he held with the Department of Agriculture are not
     predecessor positions to the CBPO position, and are therefore not primary
     positions.   ID at 9, 15. 3 Although the appellant raises several arguments on
     review, none of his arguments are material as to whether he served the requisite
     3 years in a primary position, and therefore his arguments provide no basis for
     disturbing the administrative judge’s findings in the initial decision.



     3
       The appellant’s positions with the Department of Agriculture from March 1999 to
     January 2006 were not classified in the Immigration Inspector series (GS-1816), the
     Customs Inspector series (GS-1890), or the Canine Enforcement Officer series
     (GS-1801), the three series identified by OPM as predecessor series to the CBPO series
     (GS-1895). ID at 9; see 5 C.F.R. § 842.1003(c)(1)(i). Further, the appellant does not
     dispute the administrative judge’s finding that the agency head has not determined that
     his positions with the Department of Agriculture would have been classified under the
     GS-1895 series had it then existed. ID at 9.
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¶6         The appellant claims to have new evidence and arguments that were not
     available when the record closed. Petition for Review (PFR) File, Tab 1 at 4.
     Specifically, the appellant argues that he was subjected to disparate treatment
     when the agency reassigned an employee, for two pay periods, so that she could
     become eligible for enhanced CBPO retirement coverage, but no similar
     reassignment opportunity was offered to the appellant. Id. at 4-5. On review, he
     has provided documents dated from September 2011 to December 2012 related to
     the reassignment of this employee. Id. at 8-12.
¶7         Evidence that is already a part of the record is not new.               Meier v.
     Department of the Interior, 3 M.S.P.R. 247, 256 (1980).            The appellant was
     permitted to testify at the hearing regarding the reassignment of this employee.
     IAF, Tab 16, Hearing Compact Disc (HCD) (testimony of Jose Mendiola).
     Because the appellant was permitted to testify concerning the information
     contained in these documents, the Board cannot consider it new evidence in
     support of the appellant’s petition. 5 C.F.R. § 1201.115(d) (to constitute new
     evidence the information contained in the documents, not just the documents
     themselves, must have been unavailable despite due diligence when the record
     closed). 4
¶8         Even if the Board were to consider the appellant’s alleged new evidence and
     argument on review, it is not of sufficient weight to alter the administrative
     judge’s findings in the initial decision. 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. Russo v. Veterans
     Administration, 3 M.S.P.R. 345, 349 (1980). The agency considered reassigning
     the appellant to a primary position so that he could earn enhanced CBPO

     4
        The appellant’s testimony about this reassignment is not mentioned in the initial
     decision, but that does not render this evidence “new.” The administrative judge’s
     failure to mention all of the evidence of record does not mean that she did not consider
     it in reaching her decision. See Marques v. Department of Health & Human Services,
     22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985).
                                                                                          6

     retirement coverage but could not because he was over the maximum age limit
     for a CBPO primary position (37 years old). ID at 13 n.2. The administrative
     judge asked the appellant the of age the employee who was allegedly reassigned
     by the agency to establish her entitlement to enhanced CBPO retirement. HCD
     (testimony of Jose Mendiola). The appellant testified that she is 35 years old.
     The Board does not find this alleged new evidence of sufficient weight to alter
     the administrative judge’s finding when the agency also considered reassigning
     the appellant but stated that it could not because he was over the maximum age
     for a primary position. 5
¶9         On review, the appellant alleges for the first time that the agency
     discriminated against him based on his sex and age because he was not offered a
     reassignment to establish his entitlement to enhanced CBPO retirement. PFR
     File, Tab 1 at 6. The initial appeal and the appellant’s prehearing submissions
     do not contain this discrimination claim. IAF, Tabs 1, 12-14.           Although the
     appellant testified at the hearing about the reassignment of the same employee he
     is now using as a comparator in support of his discrimination claim, he failed to
     raise an allegation of sex or age discrimination before the administrative judge.
     An appellant must raise a discrimination claim when he has sufficient knowledge
     of facts and circumstances to form a reasonable suspicion that prohibited
     discrimination has occurred. Weslowski v. Department of the Army, 80 M.S.P.R.
     585, ¶ 13, aff’d, 217 F.3d 854 (Fed. Cir. 1999) (Table). At the beginning of the
     hearing, the appellant stated that he had this same “new evidence” regarding the
     reassignment of an agency employee that he wanted the administrative judge to

     5
       The appellant asserts on review that he was permitted to attend the Basic Customs and
     Border Protection Officer Academy in 2006 at the age of 42. PFR File, Tab 1 at 4. The
     Board notes that the legislation granting the Secretary of Homeland Security the
     authority to set a maximum age of CBPOs was passed in 2007. Consolidated
     Appropriations Act, 2008, Pub. L. No. 110-161, 121 Stat. 1844, 2076-77 (2007)
     (codified as 5 U.S.C. § 3307(g)). The appellant has not argued that the agency
     appointed him, or any other CBPO over the maximum age set by the Secretary, to a
     primary position since the Secretary set the maximum age pursuant to this legislation.
                                                                                               7

      consider.   HCD.     The administrative judge ruled that, because the appellant
      failed to provide her with the exhibits in advance of the hearing as required by
      the hearing order, the exhibits would not be accepted into evidence, but she
      allowed the appellant to testify about the reassignment.             Id.      Based on his
      testimony at the hearing, the appellant knew sufficient facts surrounding the
      reassignment    to   have   raised   his   claims      of    discrimination    before   the
      administrative judge but failed to do so.        Id.        The appellant’s sex and age
      discrimination claims cannot be raised for the first time on review when he had
      sufficient knowledge of the facts and circumstances to have formed a reasonable
      suspicion that discrimination occurred but failed to raise an allegation of
      discrimination before the administrative judge.
¶10        The appellant’s other arguments on review—that the agency treats
      headquarters employees more favorably than employees in the field, PFR File,
      Tab 1 at 5; the agency failed to update him on the process during the years it
      took to render a final decision, id. at 7; and the agency has failed to efficiently
      and effectively manage its workforce, id. at 6—are not material to determining
      whether the appellant is entitled to enhanced CBPO retirement coverage. Even if
      these arguments were true, the Board could not order that the appellant be
      covered by enhanced CBPO retirement because he has not established by
      preponderant evidence that he has the requisite 3 years of service in a primary
      position. See Kroll, 121 M.S.P.R. 526, ¶ 11 (the Board cannot order the payment
      of federal retirement benefits when the statutory conditions for entitlement to
      those benefits are not met).

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           The initial decision, as supplemented by this Final Order, constitutes the
      Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request further review of this final decision.
                                                                                    8

Discrimination Claims: Administrative Review
      You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                 P.O. Box 77960
                            Washington, D.C. 20013

      If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
                                                                                  9

file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.      See 42 U.S.C. § 2000e5(f) and
29 U.S.C. § 794a.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
