Loretta Hayden v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LORETTA HAYDEN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
UNITED STATES POSTAL SERVICE,
Intervenor
______________________
2016-1291
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-0752-15-0025-I-1.
______________________
Decided: May 10, 2016
______________________
L ORETTA HAYDEN, Brooklyn, NY, pro se.
J EFFREY A. G AUGER , Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. P OLISUK.
J OSEPH E. ASHMAN, Commercial Litigation Branch,
Civil Division, United States Department of Justice,

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HAYDEN v. MSPB 2
Washington, DC, for intervenor. Also represented by
BENJAMIN C. MIZER, ROBERT E. K IRSCHMAN, J R., REGINALD
T. BLADES , J R.
______________________
Before P ROST , Chief Judge, L INN and T ARANTO, Circuit
Judges.
P ER CURIAM .
Loretta Hayden petitions for review of the final deci-
sion of the Merit Systems Protection Board dismissing her
appeal for lack of jurisdiction. Hayden v. U.S. Postal
Serv., No. NY-0752-15-0025-I-1, 123 M.S.P.R. 9 (M.S.P.B.
Oct. 7, 2015). Because Ms. Hayden was not a manager or
a confidential employee within the meaning of 39 U.S.C.
§ 1005(a)(4)(A)(ii), we affirm.
BACKGROUND
Ms. Hayden was a non-preference-eligible Human Re-
sources Specialist in the New York division of the Labor
Relations Office of the United States Postal Service
(“USPS”). In this position, she handled unemployment
claims for former USPS employees and represented the
USPS at unemployment compensation hearings. She had
access to confidential agency databases and performed
information processing tasks, such as verifying infor-
mation from claims in the Employee Personnel Action
History (“EPAH”) database, receiving and inputting “Step
2 grievances” and “Formal A appeals” into the agency’s
Grievance Tracking System (“GATS”), inputting discipli-
nary information into the Disciplinary Tracking Program
(“DTP”), and running reports against the Time and At-
tendance Control System (“TACS”) in response to union
requests. She also had access to the Labor Relations
Research Information System (“LRRIS”), a national
database of USPS arbitration decisions. Ms. Hayden was
paid according to the Executive and Administrative

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HAYDEN v. MSPB 3
Schedule (“EAS”) pay scale, level 16, and was not a mem-
ber of a collective bargaining unit.
On May 20, 2014, USPS proposed to demote Ms. Hay-
den to a PS-4 Mail Handler for entering incorrect infor-
mation relating to a grievance against her sister, another
USPS employee who had been accused of mail theft. On
June 12, 2014, Ms. Hayden met with a USPS official to
respond to the proposed demotion. USPS issued a letter
of written decision on September 10, 2014, demoting Ms.
Hayden as proposed. The letter informed Ms. Hayden
“[y]ou have the right to appeal this decision directly to the
Merit Systems Protection Board.”
Ms. Hayden appealed to the Merit Systems Protection
Board (“Board”) on October 28, 2014. On November 24,
2014, the administrative judge assigned to her case issued
an Order to Show Cause informing Ms. Hayden that she
had the burden of proving that the Board had jurisdiction
over her appeal and directing her to provide argument
and evidence on this issue. Ms. Hayden submitted writ-
ten responses and provided oral clarification over the
telephone. On June 15, 2015, the administrative judge
issued an Initial Decision finding that the Board lacked
jurisdiction over Ms. Hayden’s appeal because Ms. Hay-
den failed to show that she was a manager or a confiden-
tial employee. The Board affirmed the administrative
judge’s determination.
Ms. Hayden timely appealed to this court. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
D ISCUSSION
The Board’s jurisdiction is not plenary, but is strictly
circumscribed by statute and regulation. See 5 U.S.C.
§ 7701(a). With respect to adverse actions taken against
non-preference-eligible USPS employees, the Board only
has jurisdiction to review the action if the employee:

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HAYDEN v. MSPB 4
(I) is in the position of a supervisor or a manage-
ment employee in the Postal Service, or is an em-
ployee of the Postal Service engaged in personnel
work in other than a purely nonconfidential cleri-
cal 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)(ii) (emphases added).
Whether the Board has jurisdiction is a question of
law which we review de novo. Bolton v. Merit Sys. Prot.
Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998). We review
underlying factual determinations for substantial evi-
dence. Id. The petitioner bears the burden of establish-
ing jurisdiction. Id.
It is undisputed that Ms. Hayden completed one year
of service and was neither a preference-eligible employee
nor a supervisor. Supplemental App. 3. Thus, in order to
establish Board jurisdiction, she had to prove that she
was either a “management employee” or was “engaged in
personnel work in other than a purely nonconfidential
clerical capacity.” 39 U.S.C. § 1005(a)(4)(A)(ii)(I). The
Board concluded that Ms. Hayden failed to show that she
fell within either of these categories. Supplemental App.
6–7. On appeal, Ms. Hayden challenges these determina-
tions and argues that she was denied due process. We
address each argument in turn.
A
Under Supreme Court and National Labor Relations
Board (“NLRB”) precedent, a “management employee” is
one who “formulate[s] and effectuate[s] management
policies by expressing and making operative the decisions
of their employer.” Waldau v. Merit Sys. Prot. Bd., 19
F.3d 1935, 1398 (Fed. Cir. 1994) (quoting NLRB v. Bell
Aerospace Co. Div. of Textron, 416 U.S. 267, 286 (1974))
(internal quotation marks omitted). Whether an employ-

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HAYDEN v. MSPB 5
ee meets this criteria is not determined by her job title,
but by her “actual job responsibilities, authority, and
relationship to management.” Bell Aerospace, 416 U.S. at
290 n.19.
The administrative judge considered these principles
and determined that Ms. Hayden failed to allege facts
that she “formulate[d] and effectuate[d] management
policies by expressing and making operative the decisions
of their employer.” Supplemental App. 16. We agree.
Ms. Hayden has not asserted or provided evidence that
she actually formulated USPS policy as a Human Re-
sources Specialist. Indeed, it appears that her responsi-
bilities largely involved carrying out policy set by others.
For example, Ms. Hayden stated that, in representing the
USPS in unemployment compensation cases, she “investi-
gate[d] the validity” of unemployment claims against the
EPAH database. Id. at 54. This type of verification work
is simply enforcement of existing policy, which is insuffi-
cient to render her a “management employee.”
Ms. Hayden’s arguments to the contrary are not per-
suasive. Ms. Hayden points to certain pieces of evidence
which seem to classify her job as managerial, including an
excerpt from the USPS letter of decision terming her “a
postal employee representing Management,” her member-
ship in the National Association of Postal Supervisors
(“NAPS”), and her placement in the Labor Relations
Office, which she contends only offered management-level
positions. However, being labeled “management” does not
make one a “management employee” within the meaning
of 39 U.S.C. § 1005(a)(4)(A)(ii)(I). Instead, the inquiry
must focus on the employee’s actual job duties; as dis-
cussed above, Ms. Hayden failed to allege sufficient facts
on this point.
Ms. Hayden also argues that she was a “management
employee” because she was placed on the EAS pay scale,
had been given a non-bargaining salary increase in the

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HAYDEN v. MSPB 6
past, and was not a member of a collective bargaining
unit. We have held that USPS employees who are legally
barred from participation in a collective bargaining unit
have appeal rights to the Board. McCandless v. Merit
Sys. Prot. Bd., 996 F.2d 1193, 1201 (Fed. Cir. 1993).
However, none of these facts alleged by Ms. Hayden
would, if true, establish that she is precluded from joining
a collective bargaining unit as a matter of law. See Bol-
ton, 154 F.3d at 1321 (affirming a denial of jurisdiction
where “Bolton [has not] shown any legal authority sug-
gesting he is ineligible for union membership as a matter
of law”); Coursen v. U.S. Postal Serv., 256 F.3d 1353, 1356
(Fed. Cir. 2001) (affirming a denial of jurisdiction where
“Coursen failed to demonstrate that he was precluded as
a matter of law from joining a CBU”). Moreover, her
placement on the EAS pay scale is not sufficient to term
her a “management employee.” Accordingly, Ms. Hayden
is not entitled to Board jurisdiction.
B
Because Ms. Hayden is not a “management employ-
ee,” the Board would only have jurisdiction over her
appeal if she is “engaged in personnel work in other than
a purely nonconfidential clerical capacity.” 39 U.S.C.
§ 1005(a)(4)(A)(ii). To fall within this category, she must
satisfy the NLRB’s definition of “confidential employee.”
McCandless 996 F.2d at 1199. The NLRB defines “confi-
dential employee” as one who (1) “assist[s] and act[s] in a
confidential capacity to persons who formulate, determine
and effectuate management policy in the field of labor
relations,” or (2) “regularly ha[s] access to confidential
information concerning anticipated changes which may
result from collective-bargaining negotiations.” NLRB v.
Hendricks Cnty. Rural Elec. Membership Corp., 454 U.S.
170, 189 (1981) (citations omitted).
The administrative judge found that, although Ms.
Hayden regularly had access to confidential information

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HAYDEN v. MSPB 7
as a part of her work on unemployment compensation
cases, she neither assisted in the “formulat[ion] . . . [of]
management policy in the field of labor relations” nor
“had access to confidential information concerning antici-
pated changes which may result from collective-
bargaining negotiations.” Supplemental App. 18–19.
Substantial evidence supports these findings. Ms.
Hayden conceded to the administrative judge that she did
not participate in arbitration or grievance proceedings at
the USPS, and she presented no other evidence that she
was involved in labor disputes or collective bargaining
negotiations. Id. In addition, a declaration submitted by
her supervisor states that Ms. Hayden “did not perform
any Labor Relations Specialist (EAS-19) work such as
deciding on grievances, meeting with unions, reviewing
and preparing employee discipline, or providing advice to
postal supervisors/managers on contractual issues.” Id. at
52. Although Ms. Hayden had access to the GATS sys-
tem, nothing in the record shows that she performed
anything more than clerical data entry. See id. at 29, 61.
Thus, we see no reason to disturb the administrative
judge’s factual findings.
Ms. Hayden argues that she was a “confidential em-
ployee” because she had access to confidential information
in the EPAH, TACS, GATS, DTP, and LRRIS systems,
but this argument fails as a matter of law. “Mere access
to personnel information is insufficient to establish confi-
dential status.” McCandless, 996 F.3d at 1200 (quoting
Benifield v. U.S. Postal Serv., No. CH07528810478, 1989
WL 17814 (M.S.P.B. Feb. 28, 1989)). Accordingly, we
agree that Ms. Hayden was not “engaged in personnel
work in other than a purely nonconfidential clerical
capacity” under 39 U.S.C. § 1005(a)(4)(A)(ii).
C
Ms. Hayden also argues that the denial of a right to
appeal to the Board deprived her of due process. Howev-

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HAYDEN v. MSPB 8
er, jurisdiction is a threshold issue and the Board was
correct to decline to proceed once it determined it lacked
authority to hear her case. Accordingly, no further pro-
cess was due.
CONCLUSION
We have carefully considered the remainder of Ms.
Hayden’s arguments and have determined that they lack
merit. For the foregoing reasons, we affirm the Board’s
decision that it lacked jurisdiction over Ms. Hayden’s
appeal.
AFFIRMED
COSTS
Each party shall bear their own costs.

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