Tarr v. Merit Systems Protection Board , 469 F. App'x 867 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JAMES H. TARR,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3208
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. DE315H090407-B-1.
___________________________
Decided: February 8, 2012
___________________________
JAMES A. TARR, of Grand Junction, Colorado, pro se.
DAVID S. BROOKS, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________
TARR v. MSPB 2
Before BRYSON, DYK, and O’MALLEY, Circuit Judges.
PER CURIAM.
DECISION
Petitioner James H. Tarr seeks review of an order of
the Merit Systems Protection Board dismissing his appeal
from his termination on the ground that it was not within
the Board’s jurisdiction. We affirm.
BACKGROUND
In July of 2008, Mr. Tarr entered the federal competi-
tive service with an appointment to a Housekeeping Aid
position at a Medical Center operated by the Department
of Veterans Affairs (“DVA”). His appointment was subject
to a one-year probationary period. During a probationary
period, an appointee has no statutory right, and very
limited regulatory rights, to appeal any termination
decision. See 5 C.F.R. §§ 315.805-.806.
Before the expiration of his probationary period, Mr.
Tarr was terminated for inappropriate behavior, consist-
ing of disrespectful and aggressive behavior towards staff
and patrons of the Medical Center. He sought to appeal
his removal to the Merit Systems Protection Board,
arguing that his removal was improper for two reasons:
First, he alleged that the DVA had discriminated against
him because of his diagnosed post-traumatic stress disor-
der (“PTSD”). Second, he alleged that the DVA had
removed him because, 18 months prior to his appoint-
ment, he had reported to the FBI that a DVA official’s
husband had worn military awards and decorations that
he had not earned.
3 TARR v. MSPB
The administrative judge who was assigned to his
case initially dismissed Mr. Tarr’s appeal as being outside
the jurisdiction of the Board because Mr. Tarr failed to
allege that his removal was based on partisan political
reasons or marital status, the only two types of in-service
conduct that can give rise to Board review of a probation-
ary employee’s removal. 5 C.F.R. § 315.806(b). On Mr.
Tarr’s petition for review, the full Board remanded the
case to the administrative judge. The full Board con-
cluded that Mr. Tarr had sufficiently alleged a third
ground for appeal—that he was terminated because of
conditions arising before his appointment and that the
termination was not effected in accordance with proce-
dures set out in 5 C.F.R. § 315.805. See id. § 315.806(c).
On remand, the administrative judge held an eviden-
tiary hearing at the conclusion of which she ruled that
Mr. Tarr had not shown that his removal was due to pre-
appointment reasons. She therefore held that he had
failed to establish that the Board had jurisdiction over his
appeal. When the full Board denied Mr. Tarr’s petition
for review, he sought review by this Court.
DISCUSSION
Mr. Tarr argues that he has a right to appeal his ter-
mination under 5 C.F.R. § 315.806(c). The right to appeal
under that regulation is available to probationary em-
ployees who are dismissed in whole or in part based on
pre-employment conditions. In such appeals, the proba-
tionary employees’ appellate rights are limited to claims
that they have been denied the procedural rights set forth
in 5 C.F.R. § 315.805.
The administrative judge concluded that Mr. Tarr
failed to show that his termination was based on pre-
TARR v. MSPB 4
employment conditions, and the record supports that
conclusion. The administrative judge noted that, besides
his bare allegations, Mr. Tarr failed to submit any evi-
dence to support his claim that he was removed either
because of his PTSD or his alleged act of whistleblowing.
With regard to his PTSD claim, the administrative judge
observed, Mr. Tarr did not testify, and he “failed to sub-
mit any testimonial or documentary evidence of a medical
diagnosis of PTSD, or that he was perceived as suffering
from PTSD, or that his termination by the agency was
due to his medical condition of PTSD, or a perception that
he suffered from PTSD.” With regard to his allegation of
retaliation for whistleblowing, the administrative judge
pointed out that Mr. Tarr failed to present any evidence
that he reported the husband of a DVA official for wear-
ing unearned military awards and decorations.
The DVA presented substantial evidence that Mr.
Tarr was terminated because of complaints by other
employees about his inappropriate behavior. The record
contains documented reports of Mr. Tarr yelling at sev-
eral staff members and accosting a visitor to the Medical
Center. Although Mr. Tarr contends that those incidents
occurred during periods when he was merely a visitor or a
patron of the facility, that contention is not borne out by
the record. From that evidence, the administrative judge
concluded that the DVA had established by preponderant
evidence that the basis for Mr. Tarr’s termination was his
post-appointment misconduct in the workplace. We hold
that the administrative judge’s conclusion on that issue
was supported by substantial evidence.
We also reject Mr. Tarr’s assertion that the adminis-
trative judge improperly limited the number of witnesses
he was allowed to call at the evidentiary hearing. The
administrative judge allowed Mr. Tarr to call six of the
5 TARR v. MSPB
twelve witnesses he listed, but initially denied him the
right to call the remaining six witnesses on his list due to
what she referred to as “the vagueness of the description
of their proposed testimony.” She advised Mr. Tarr that
she would allow the others to testify if Mr. Tarr “identi-
fied the specific events or dates about which each of the
requested witnesses would be testifying.” Mr. Tarr did
not provide the additional information, and he has not
explained what additional value those six witnesses
would have added to his case. In light of Mr. Tarr’s
failure to set forth the events about which those witnesses
would testify, we hold that the administrative judge’s
decision to exclude them did not constitute an abuse of
discretion. See Fellhoelter v. Dep’t of Agric., 568 F.3d 965,
972 (Fed. Cir. 2009).
Mr. Tarr points to a decision by the Colorado Depart-
ment of Labor and Employment, which concluded that
there was insufficient evidence to support a determina-
tion of fault regarding his termination and therefore ruled
that he was entitled to unemployment benefits. That
decision, he contends, should be given preclusive effect in
this case, and the fact that the DVA did not exercise its
right to respond in the Colorado unemployment benefits
proceeding forecloses it from defending its action in
removing him. Those contentions lack merit. The DVA’s
failure to appeal in a separate state unemployment pro-
ceeding does not abrogate any appeal rights it has before
the Board. Moreover, the claims, issues, and burdens in
the two proceedings are sufficiently different that the
outcome of the unemployment case would have no preclu-
sive effect in the Board proceedings in any event.
The short of the matter is that Mr. Tarr was termi-
nated because his “conduct during [the probationary]
period fail[ed] to demonstrate his fitness . . . for continued
TARR v. MSPB 6
employment,” 5 C.F.R. § 315.804(a), not because of any
“conditions arising before his appointment,” id. § 315.805.
As such, the Board correctly concluded that it lacked
jurisdiction over his appeal. Id. § 315.806(a); see Carrow
v. Merit Sys. Prot. Bd., 626 F.3d 1348, 1352 (Fed. Cir.
2010).
No costs.
AFFIRMED