Clete E. Coursen v. United States Postal Service

256 F.3d 1353, 2001 U.S. App. LEXIS 15808, 2001 WL 793015

• Court: Court of Appeals for the Federal Circuit
• Decided: July 16, 2001
• Docket: 00-3322
• Status: Published

Opinions

LOURIE, Circuit Judge.

Cíete E. Coursen petitions for review of the final decision of the Merit Systems Protection Board dismissing his appeal for lack of jurisdiction. Coursen v. United States Postal Serv., 86 M.S.P.R. 39, No. CH-0752-99-0538-I-1 (M.S.P.B. Mar.24, 2000) (final order). Because Coursen was not a supervisor or a management employee within the meaning of 39 U.S.C. § 1005(a)(4)(A)(ii), we affirm.

BACKGROUND

Mr. Coursen was employed as an “Account Representative” with the United States Postal Service (“the agency” or “the Postal Service”) in Kansas City, Missouri. Coursen v. United States Postal Serv., No. CH-0752-99-0538-I-1, slip op. at 1 (M.S.P.B. Sept.23, 1999) (initial decision). His position description indicated that his duties included working independently to develop relationships with commercial business customers in order to sell postal products and services to the customers within a district. Id. at 3. In December 1995, Coursen received a notice of proposed removal for submitting false sales and daily activity reports, and for misusing Postal Service equipment by downloading pornography onto an agency computer while on duty. On January 3, 1996, the agency issued Coursen a letter of decision stating that his removal would be effective January 26,1996.

After his removal, Coursen filed an appeal to the Board, asserting jurisdiction under the Postal Employees Appeal Rights Act (“PEARA”), 39 U.S.C. § 1005(a)(4). In an initial decision, the administrative judge (“AJ”) dismissed Coursen’s appeal for lack of jurisdiction, concluding that Coursen lacked standing to appeal his removal to the Board because he had failed to show by a preponderance of the evidence that he was employed as a “supervisor or management employee” within the meaning of 39 U.S.C. § 1005(a)(4)(A)(ii). Id. at 1,4.

Coursen appealed the AJ’s initial decision to the full Board. The Board denied his petition for review, thus rendering the initial decision final. 5 C.F.R. § 1201.113(b) (2000). Coursen timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (1994).

DISCUSSION

The scope of our review in an appeal from a decision of the Board is limited. We must affirm the Board’s decision unless it was: “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (1994); Gibson v. Dep’t of Veterans Affairs, 160 F.3d 722, 725 (Fed.Cir. 1998).

The Board’s jurisdiction is not plenary, but is limited to adverse personnel actions made appealable to it by law, rule, or regulation. 5 U.S.C. § 7701(a) (1994); Middleton v. Dep’t of Def., 185 F.3d 1374, 1379 (Fed.Cir.1999). Whether the Board has jurisdiction to adjudicate a particular appeal is a question of law that we review de novo. Middleton, 185 F.3d at 1379. The burden of establishing jurisdiction is on the petitioner. Herman v. Dep’t of Justice, 193 F.3d 1375, 1378 (Fed. Cir.1999).

Coursen argues that the Board erred in dismissing his appeal for lack of jurisdiction. Coursen contends that he was entitled to appeal to the Board because he was ineligible to join a collective bargaining unit (“CBU”) and because he performed the job functions of a managerial and supervisory employee. The agency responds that the Board did not err in dismissing Coursen’s appeal because Coursen was not a “supervisor or management employee” under 39 U.S.C. § 1005(a)(4)(A)(ii). The agency also argues that Coursen failed to show that, as a matter of law, he was ineligible for membership in a CBU.

We agree with the agency that Coursen was not entitled to appeal to the Board. Under PEARA, a Postal Service employee has the right to appeal an adverse personnel decision to the Board if he has completed at least one year of continuous service and is in the position of a “supervisor or a management employee,” or is engaged in personnel work in other than a purely nonconfidential clerical capacity. 39 U.S.C. § 1005(a)(4)(A)(ii) (1994).

* Thus, status as a supervisor or a management employee entitles a Postal Service employee to appeal to the Board. In addition, the law provides that a Postal Service employee is precluded from joining a CBU if that employee is a “management official or supervisor,” or is engaged in personnel work in other than a purely nonconfidential clerical capacity. 39 U.S.C. § 1202 (1994). Accordingly, if a Postal Service employee is barred as a matter of law from joining a CBU because he is a supervisor or manager under § 1202, that employee “by statutory definition has appeal rights to the Board under [§ ] 1005(4)(A)(ii).” Carrier v. Merit Sys. Prot. Bd., 183 F.3d 1376, 1378 (Fed.Cir. 1999) (citing McCandless v. Merit Sys. Prot. Bd., 996 F.2d 1193, 1201 (1993)).

We agree with the agency that Coursen failed to demonstrate that he was a supervisor or management employee within the definition of § 1005(a)(4)(A)(ii). While Coursen argues that he was previously a Postal Service superintendent, occasionally performed as an acting manager and supervisor, took management training courses, and joined an association for supervisors, such activity does not demonstrate that he was a supervisor or management employee for the purposes of 39 U.S.C. § 1005(a)(4)(A)(ii). The AJ specifically found that Coursen’s position description did not reflect that he “supervised” other employees. Coursen, slip op. at 2. Moreover, Coursen failed to show that he had the authority to discharge or discipline others, or that his own evaluation was based on the performance of his subordinates. See Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1318 (Fed.Cir.1998) (explaining that the authority to discharge or discipline others and accountability for the performance of subordinates are generally critical components of supervisory status).

The AJ also determined that Coursen’s position was not “managerial” in nature. Coursen, slip op. at 3. Although Coursen’s position description indicated that he worked independently to develop relationships with commercial business customers, the AJ found that the evidence did not reflect that Coursen assisted in the formulation of management policies. Id.; see also Bolton, 154 F.3d at 1318 (“[MJanage-rial employees are those who ‘formulate and effectuate management policies by expressing and making operative decisions of their employer.’ ” (quoting Waldau v. Merit Sys. Prot. Bd., 19 F.3d 1395, 1398 (Fed. Cir.1994))). Accordingly, we conclude that substantial evidence supports the Board’s finding that Coursen was neither a supervisor nor a management employee.

We also agree with the agency that Coursen failed to demonstrate that he was barred as a matter of law from joining a CBU. Although Coursen was not a member of a CBU, and therefore was a “non-bargaining” employee, there is no indication that Coursen ever attempted to join a CBU and was denied membership. Nor has Coursen shown any legal authority suggesting he was ineligible for such membership as a matter of law. Based on these facts, we conclude that Coursen failed to demonstrate that he was precluded as a matter of law from joining a CBU. See Bolton, 154 F.3d at 1321 (concluding that a Postal Service employee failed to show that he was ineligible for CBU membership, where such employee did not show that he applied to a CBU and was denied membership, or show any legal authority suggesting that he was ineligible for CBU membership as a matter of law).

Moreover, neither the agency’s description of Coursen’s position as a “non-bargaining” position, nor the absence of an existing CBU for Coursen to join, leads to a contrary conclusion. See Carrier, 183 F.3d at 1379 (“Contrary to the suggestions of the dissent, we may not reach the opposite conclusion based on the facts that the postal service described Carrier’s position as nonbargaining and that there may presently be no bargaining unit in existence for Carrier to join.”). In Carrier, we explained:

Congress did not assure that a union would be up and running for every postal operation ... We must attend to the jurisdiction of the Board, from which our jurisdiction depends. Nothing in the statutes or our precedent, including McCandless, suggests that a person who is found, by substantial evidence, to fail the jurisdictional tests of section 1005 nevertheless may appeal to the Board on a showing that, in fact, such person had no readily available collective bargaining unit to which a grievance could be taken.

Id. at 1380.

The dissent notably fails to cite or distinguish either Bolton or Carrier, and instead, mistakenly relies on National Labor Relations Board v. Kentucky River Community Care, Inc., — U.S. -, 121 S.Ct. 1861, 149 L.Ed.2d 939 (2001), for the proposition that the burden of proving that an employee was misclassified is “on the party presenting the challenge.” The dissent erroneously suggests that, under Kentucky River, the agency bore the burden of showing that it had misclassified Coursen as a “nonbargaining” employee.

Neither party challenges Coursen’s designated status as a “nonbargaining” employee and the agency readily acknowledges that Coursen was not a member of a CBU. Moreover, the issue is not whether the agency had correctly classified his position as “nonbargaining.” Rather, it is whether he was precluded as a matter of law from joining a CBU and thus was a supervisor or management employee for the purposes of § 1005(a)(4)(A)(ii). As the party asserting supervisory status, the burden of proof was on Coursen, not the agency. Kentucky River, — U.S. at -, 121 S.Ct. at 1866. In Kentucky River, the Supreme Court expressly deferred to the Board’s rule that the burden of proving an employee’s supervisory status under the National Labor Relations Act, 29 U.S.C. § 152(11), is “borne by the party claiming that the employee is a supervisor.” Id. The Court further explained:

[I]t is easier to prove an employee’s authority to exercise ... supervisory functions than to disprove an employee’s authority to exercise any of those functions, and practicality therefore favors placing the burden on the party asserting supervisory status. We find that the Board’s rule for allocating the burden of proof is reasonable and consistent with the Act, and we therefore defer to it.

Id. Thus, the burden of proof was clearly on Coursen.

Because substantial evidence supports the Board’s findings that Coursen failed to demonstrate that he was a supervisor or management employee under 39 U.S.C. § 1005(a)(4)(A)(ii), or that he was precluded as matter of law from joining a CBU, we must affirm.

CONCLUSION

Because Coursen has not demonstrated that he was a supervisor or management employee within the meaning of 39 U.S.C. § 1005(a)(4)(A)(ii), the Board did not err in dismissing his appeal, and we therefore

AFFIRM.

Section 1005(a) states in relevant part:

(4) (A) Subchapter II of chapter 75 of title 5 [identifying the federal employees entitled to appeal to the Board] shall apply—

(ii) to any other individual who—

(I) is in the position of a supervisor or a management employee in the Postal Service, or is an employee of the Postal Service engaged in personnel work in other than a purely nonconfidential clerical capacity; and

(II) has completed 1 year of current continuous service in the same or similar positions.

39 U.S.C. § 1005(a)(4)(A); see also 5 U.S.C. § 7513(d) (1994) ("An employee against whom an action is taken under this section is entitled to appeal to the Merit Systems Protection Board under section 7701 of this title.”).