Katarzyna Dominczak v. Department of Defense ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KATARZYNA DOMINCZAK, DOCKET NUMBER
Appellant, AT-315H-15-0029-I-1
v.
DEPARTMENT OF DEFENSE, DATE: May 6, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Terry Trivedi, Orlando, Florida, for the appellant.
Teena Mathew Makil, Esquire, Dallas, Texas, 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A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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 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 and AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 On September 9, 2013, the agency appointed the appellant to the position of
Contract Price/Cost Analyst, a career-conditional appointment in the competitive
service, subject to the satisfactory completion of a 1-year probationary period.
Initial Appeal File (IAF), Tab 6 at 11. The agency issued a notice of termination
during her probationary period for unacceptable performance on September 4,
2014, effective the following day. Id. at 33. The termination memorandum noted
performance concerns previously expressed to the appellant by her supervisor
during her second- and third-quarter periodic progress assessments. Id. The
appellant filed an appeal with the Board, alleging, among other things, that the
agency had illegally terminated her and that her supervisor had failed to comply
with collective bargaining agreement provisions, including the grievance and
counseling procedures prescribed therein. IAF, Tab 1 at 4-5, 16. She specifically
alleged that her supervisor had not followed the collective bargaining agreement
provision regarding agency actions based upon unacceptable performance and that
the agency had not offered the union representation to which she was entitled. Id.
at 17-21.
 3
¶3 The administrative judge notified the appellant that the Board may lack
jurisdiction over her termination and informed her how to establish that she had
appeal rights under 5 U.S.C. chapter 75 or regulatory appeal rights as a
probationary employee in the competitive service as set forth at 5 C.F.R.
§ 315.806. IAF, Tab 3 at 2-4. The appellant responded that the Board has
jurisdiction over her appeal under the “procedural protections” of 5 C.F.R.
§§ 315.805, 315.806, governing the termination of probationers for conditions
arising before appointment, but she provided no specific facts concerning the
reasons for her termination. See IAF, Tab 5 at 1. The agency filed a motion to
dismiss the appeal, arguing that the Board lacks jurisdiction over the appeal
because the appellant was a probationary employee when she was terminated for
post-appointment reasons. IAF, Tab 6 at 7. The agency stated that the
termination letter had clearly outlined the reasons for the appellant’s termination,
and that she had provided no evidence or support for her allegation that the
termination was based on pre-appointment reasons. Id. at 7-8. The appellant
responded, arguing that she should not have been terminated for several reasons,
including her membership in a bargaining unit, the agency’s having committed an
unfair labor practice by violating the grievance procedures in the collective
bargaining agreement, and the agency’s failure to fully respond to her discovery
request below. IAF, Tab 7 at 1-2.
¶4 In an initial decision issued without holding the requested hearing, the
administrative judge dismissed the appeal for lack of jurisdiction, finding that the
appellant failed to allege facts supporting a finding that she was an “employee”
with Board appeal rights or that her termination “fell within the limited
circumstances in which the Board may adjudicate the termination of a
probationary employee.” IAF, Tab 8, Initial Decision (ID) at 4. The
administrative judge noted that the appellant had not alleged that she was
terminated because of partisan political reasons or marital status and that, in
contrast to her bare allegation that her termination was for pre-appointment
4
reasons, the termination notice clearly stated that she was terminated for
post-appointment unacceptable performance. See ID at 3-4. The administrative
judge found that the appellant’s allegations regarding the agency’s alleged breach
of the collective bargaining agreement failed to address the jurisdictional issue.
ID at 4 n.2.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 On review, the appellant argues that the initial decision contained erroneous
findings of material facts, primarily contesting the administrative judge’s finding
that the nature of her appointment determines her Board appeal rights and instead
asserting that the nature of her employment is part of her contract. Petition for
Review (PFR) File, Tab 1 at 1-2. She argues that the administrative judge
ignored her discrimination complaint concerning an alleged hostile work
environment in which mentors spoke Spanish in front of her and thus excluded
her from conversations. Id. at 2. She also argues that the Board has jurisdiction
over her appeal because she is a dues-paying bargaining unit member covered by
the collective bargaining agreement. Id. at 4. She asserts, moreover, that the
administrative judge’s “rulings were not consistent with required procedures and
did not provide enough weight to the case,” but she makes no allegations of
specific procedural errors or evidence improperly weighed in the initial decision.
Id. In addition, she argues that she would like to submit “new and material
evidence” on review, but asserts that her agency computer was “confiscated” and
“contained vital information that would help to establish jurisdiction.” Id. She
also raises additional allegations against her former supervisor, without reference
to any findings in the initial decision or argument that these allegations pertain to
the jurisdictional issue in her appeal. Id. at 5-12.
¶6 The agency responds that the petition for review does not establish that the
initial decision contained erroneous findings of material fact, and it maintains that
the Board lacks jurisdiction over the present appeal under 5 C.F.R. §§ 315.805,
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315.806. PFR File, Tab 4 at 9-11. The agency further asserts that the appellant
raises new issues in her petition for review regarding alleged violations of the
collective bargaining agreement and Executive Order 13522, but has not
demonstrated that her arguments are based on any material evidence that was not
available when the record closed. Id. at 11.
¶7 The administrative judge correctly found that the appellant failed to make a
nonfrivolous allegation that the Board has jurisdiction over the present appeal.
Generally, the Board lacks jurisdiction over a probationary employee’s appeal
from a termination during her first year of federal civilian employment. 2 Hurston
v. Department of the Army, 113 M.S.P.R. 34, ¶ 8 (2010). To establish Board
jurisdiction under 5 U.S.C. chapter 75, an individual must, among other things,
show that she satisfies one of the definitions of “employee” in 5 U.S.C.
§ 7511(a)(1). See 5 U.S.C. § 7513(d); Walker v. Department of the Army,
119 M.S.P.R. 391, ¶ 5 (2013). The administrative judge properly found that the
appellant was not an “employee” in the competitive service with adverse action
appeal rights to the Board because she was serving a 1-year probationary period
when she was terminated and had not completed 1 year of continuous service
under other than a temporary appointment limited to 1 year or less. ID at 3. The
appellant has not contested this finding on review, and we find no reason to
disturb it.
¶8 A probationary employee in the competitive service may appeal to the
Board under limited circumstances set forth at 5 C.F.R. § 315.806. The Board
has jurisdiction over termination appeals under 5 C.F.R. § 315.806 in situations in
which the agency’s action was improperly based on partisan political reasons or
marital status, or taken through improper procedures when the employee was
terminated for reasons based in whole or in part on conditions arising prior to her
2
The appellant does not dispute that she was serving a probationary period at the time
of her term ination. See IAF, Tab 1 at 4.
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appointment. 3 The administrative judge found that the appellant made no
allegation that her termination was based on partisan political reasons or marital
status, and she likewise has made no such argument on review. ID at 4; see PFR
File, Tab 1 at 1-4. The appellant has neither alleged nor shown error in the
administrative judge’s finding that she did not make a nonfrivolous allegation that
she was terminated for pre-appointment reasons, and thus that she has no Board
appeal rights under 5 C.F.R. § 315.806 on the ground that her termination was not
effected in accordance with the procedural requirements of 5 C.F.R. § 315.805.
See ID at 3-4. In fact, the appellant has alleged no facts concerning any
pre-appointment condition contributing to her termination. See ID at 4; IAF, Tab
5 at 1, Tab 7 at 2-3.
¶9 We have reviewed the appellant’s remaining arguments and find that she
has presented no basis for disturbing the findings of the administrative judge
concerning her failure to make a nonfrivolous allegation of Board jurisdiction.
Contrary to the appellant’s repeated assertions on review, her status as a member
of a collective bargaining agreement provides no termination appeal rights before
the Board, and the initial decision correctly stated that it was the nature of her
appointment that determined any Board appeal rights. See PFR File, Tab 1 at 2;
ID at 4 n.2. Thus, despite the appellant’s discussion of the grievance and
performance-based action procedures outlined in the collective bargaining
agreement, see IAF, Tab 7 at 2; PFR File, Tab 1 at 1-4, any such contractual
provisions do not affect her appeal rights. The appellant did not repeat her
argument below regarding the agency’s failure to produce all requested discovery,
see IAF, Tab 7 at 2, but instead argues that there was new and material evidence
on her agency computer that would help to establish jurisdiction, PFR File, Tab 1
at 4. However, the appellant has failed to show that any additional discovery
would have affected the jurisdictional issue in her appeal, or that she has been
3
The term ination notice informed the appellant of these lim ited appeal rights during her
probationary period. IAF, Tab 6 at 34.
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prejudiced by the administrative judge having decided the jurisdictional issue
without this purported evidence. To the extent that the appellant’s general
reference to a previous Board decision concerning an employee’s removal for
unacceptable performance under 5 U.S.C. chapter 43 constituted an argument to
appeal her termination under such provisions, see IAF, Tab 7 at 1, 6-7, she has
not contested that she was a probationary employee and thus, she was not entitled
to have her termination effected under chapter 43 procedures. Consequently,
even assuming any alleged errors by the administrative judge, such actions would
have no effect on the outcome of this case and provide no basis for disturbing the
initial decision. See 5 C.F.R. § 1201.115(c); see also Karapinka v. Department of
Energy, 6 M.S.P.R. 124, 127 (1981). Finally, regarding the appellant’s assertion
on review that the administrative judge ignored her allegations of discrimination,
see PFR File, Tab 1 at 2, we note that the Board cannot review her discrimination
claims absent an otherwise appealable action. See Garcia v. Department of
Homeland Security, 437 F.3d 1322, 1342-43 (Fed. Cir. 2006).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States 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
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and that filings that do not comply with the deadline must be dismissed. See
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 your court
appeal, 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 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.