Luis Marquez v. Department of Labor ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LUIS R. MARQUEZ, DOCKET NUMBER
Appellant, SF-315H-16-0521-I-1
v.
DEPARTMENT OF LABOR, DATE: May 27, 2022
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Jim Dougherty, Esquire, Walnut Creek, California, for the appellant.
David M. Kahn, Esquire, San Francisco, California, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the probationary termination appeal for lack of jurisdiction. For the
reasons discussed below, we GRANT the appellant’s petition for review and
REMAND his Uniformed Services Employment and Reemployment Rights Act of
1994 (USERRA) claim to the Western Regional Office for further adjudication in
accordance with this Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 Effective May 13, 2016, the agency terminated the appellant ’s employment
during his 1-year probationary period for unacceptable performance. 2 Initial
Appeal File (IAF), Tab 1 at 12. The termination letter specified the deficiencies
in his performance and advised him of his Board appeal rights. Id. at 12-13.
¶3 The appellant filed an appeal, challenging the merits of his termination and
alleging that he was terminated due to his disabilit y, race, color, national origin,
sex, and age, and for unspecified, preappointment reasons. IAF, Tab 1 at 7,
Tab 10 at 51-55, Tab 12 at 4. He claimed that he had 15 years and 3 months of
Federal service, including 6 years of prior employment with a different agency,
and that a probationary period was “not applicable” to his situation. IAF, Tab 1
at 3, 62. He also argued that the agency terminated him without providing
“notice, a right to answer, and then a final decision.” IAF, Tab 12 at 4. He
further alleged that by terminating him, the agency violated his USERRA rights
under 38 U.S.C. § 4311 and obstructed his right to compete for employment in
violation of 5 U.S.C. § 2302(b)(4). Id. at 4, 18-20.
¶4 The administrative judge notified the appellant that the Board may lack
jurisdiction over his termination, informed him of his burden of establishing that
he was an employee with statutory appeal rights under 5 U.S.C. chapter 75 or a
probationer with regulatory appeal rights under 5 C.F.R. § 315.806, and afforded
him an opportunity to respond. IAF, Tab 2 at 2-5. The administrative judge also
granted the agency’s motion to stay discovery pending a rul ing on the
jurisdictional issue. IAF, Tabs 5, 7, 11. Although the appellant agreed to the
extension, he later submitted a pleading reflecting that he wished to engage in
discovery. IAF Tab 5 at 2, Tab 9 at 5.
2
Although neither party supplied documentation reflecting the nature of the appellant’s
appointment, it appears that it was in the competitive service. Initial Appeal File, Tab 1
at 12-13; see 5 C.F.R. § 315.201(a) (discussing a career-conditional appointment, like
the appellant’s, as a type of competitive-service appointment).
3
¶5 The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction, without holding the requested hearing. IAF, Tab 1 at 4 ;
Tab 15, Initial Decision (ID) at 1, 3. He found that the appellant was a
probationary employee. ID at 1. He also found that the appellant failed to allege
a preappointment reason for his termination and, thus, was not entitled to the
procedural protections under 5 C.F.R. § 315.805. ID at 3. He further found that
the appellant did not allege any other basis for Board jurisdiction over his
termination. Id. He therefore found that the Board also lacked jurisdiction over
the appellant’s prohibited personnel practice claims. Id. The administrative
judge received the appellant’s additional jurisdictional response after the initial
decision’s issuance and therefore rejected it. IAF, Tab 17; see 5 C.F.R.
§ 1201.112(a) (explaining that after the initial decision is issued, the
administrative judge retains only limited jurisdiction over the case).
¶6 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tabs 1, 3. The agency has filed a response, to which the appellant has
replied. 3 PFR File, Tabs 4, 7.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 The appellant alleges that the administrative judge erred by rejecting his
additional jurisdictional response as untimely, denying his right to discovery, and
failing to adjudicate his discrimination claims. PFR File, Tab 1 at 4, Tab 7 at 4-9.
He also claims that the administrative judge erroneously found that he was
3
We deny the appellant’s motion for leave to file additional pleadings on the timeliness
of his July 12, 2016 jurisdictional response. PFR File, Tab 10. As discussed below, we
find his response to be timely filed, and we consider it on review. The appellant also
filed a motion for leave to submit a list of six Board decisions he argues are “relevant”
to his timeliness claim. PFR File, Tab 12. To the extent these decisions would
constitute new and material evidence, an adjudicatory body is presumed to be “aware of
relevant precedent in [its jurisdiction].” Boyer v. United States, 84 Fed. Cl. 751, 756
(2008). Therefore, the appellant’s motion for leave is denied.
4
terminated for postappointment reasons and was not entitl ed to the processes
afforded by 5 U.S.C. § 7513(b) or 5 C.F.R. § 315.805. PFR File, Tab 7 at 9-11.
The appellant failed to nonfrivolously allege Board jurisdiction over his
probationary termination.
¶8 During a June 28, 2016 telephonic conference with the parties, the appellant
requested an extension of time to file his jurisdictional response, which the
administrative judge granted. PFR File, Tab 4 at 9, Tab 7 at 6. He ordered the
appellant to file his response on or before July 12, 2016. 4 Id. The appellant
submitted a copy of the tracking information and the envelope showing that his
response was mailed on July 12, 2016. PFR File, Tab 3, Subtab 4 at 3, Subtab 15.
The date of filing by mail is determined by the postmark date. 5 C.F.R.
§ 1201.4(l). Accordingly, we find that his July 12, 2016 response was tim ely
filed, even though the administrative judge did not receive it until July 13, 2016.
Thus, we consider his response on review. PFR File, Tab 3. Nonetheless, we
find that these additional arguments do not provide a basis for altering the
administrative judge’s finding that the Board lacks jurisdiction over the
appellant’s probationary termination.
¶9 The appellant bears the burden of proving jurisdiction by preponderant
evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A). To have Board appeal rights under
5 U.S.C. chapter 75, an appellant must, among other things, show that he satisfied
one of the definitions of “employee” in 5 U.S.C. § 7511(a)(1). 5 U.S.C.
§ 7513(d). If he fails to satisfy the definition of “employee,” he nevertheless may
have the right to appeal his termination to the Board under 5 C.F.R. § 315.806. In
relevant part, under 5 C.F.R. § 315.806(c), a probationary employee whose
termination was based in whole or in part on conditions arising before his
4
The administrative judge apparently did not issue a written order on the appellant’s
request for an extension of time to file. While the parties disagree as to whether the
appellant’s jurisdictional response was timely filed, both acknowledge that the
administrative judge ordered the appellant “to file” his jurisdictional res ponse on or
before July 12, 2016. PFR File, Tab 4 at 7, Tab 7 at 6.
5
appointment may appeal his termination on the ground that it was not effected in
accordance with the procedures set forth in 5 C.F.R. § 315.805. 5
¶10 Although the appellant claims entitlement to appeal rights under 5 U.S.C.
chapter 75, he does not challenge the administrative judge’s finding that he was a
probationary employee at the time of his termination. ID at 3. Moreover,
according to the appellant’s additional evidence, he has no prior Federal civilian
service. PFR File, Tab 3, Subtab 27 at 46-48, 57. Apparently, his 15 years of
prior Federal service was military service, and his other prior Government service
was with the State of California. Id. Thus, the appellant failed to nonfrivolously
allege that he was an employee with Board appeal rights under 5 U.S.C.
chapter 75. See Baggan v. Department of State, 109 M.S.P.R. 572, ¶ 5 (2008)
(finding that a competitive-service appointee can tack certain prior service in the
same agency onto his current appointment to complete his probationary period).
¶11 The appellant also argues in his additional jurisdictional response that the
agency terminated him due to his preexisting disability, race, and national origin.
PFR File, Tab 3, Subtab 2 at 1-4. The procedural safeguards of 5 C.F.R.
§ 315.805 do not apply to physical conditions predating emplo yment that affect
an employee’s performance. Holloman v. Department of the Navy, 31 M.S.P.R.
107, 110 (1986). Rather, they are required if the separation of the employee was
proposed for reasons other than performance deficiencies. Id. Thus, his medical
condition, race, and accent, although preexisting, are not preappointment
conditions within the meaning of 5 C.F.R. § 315.805. Id. We therefore find that
he was not entitled to the process afforded by that provision and failed to allege a
basis for jurisdiction under 5 C.F.R. § 315.806.
5
The appellant has not challenged, and we discern no error with, the administrative
judge’s finding that the appellant made no claims that his termination was based on
partisan political reasons or marital status discrimination under 5 C.F.R. § 315.806(b).
ID at 3.
6
¶12 In the absence of an otherwise appealable action, the Board may not
adjudicate the appellant’s nonUSERRA-related discrimination, due process, and
prohibited personnel practice claims. See Garcia v. Department of Homeland
Security, 437 F.3d 1322, 1342-43 (2006) (reaffirming that the Board may not
decide issues within its pendent or ancillary jurisdiction in the absence of an
otherwise appealable action), superseded by regulation on other grounds, as
stated in Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 10 (2016).
The appellant’s remaining challenges to the administrative judge’s finding that
the Board lacks jurisdiction over his probationary terminat ion do not state a basis
for review.
¶13 The appellant contends that the administrative judge erroneously denied
him his right to discovery. PFR File, Tab 7 at 8; IAF, Tab 14. An appellant is
entitled to request discovery of relevant materials to assist him in meeting his
burden of establishing Board jurisdiction. See Russo v. Department of the Navy,
85 M.S.P.R. 12, ¶ 8 (1999). However, here, the appellant admitted that the
purpose of his discovery requests was to obtain information on the merits of his
termination and his pendant discrimination claims, which do not affect Board
jurisdiction in this matter. IAF, Tab 8 at 14-15. He therefore has not shown that
the administrative judge’s order to stay discovery prejudiced his ability to meet
his jurisdictional burden. See Karapinka v. Department of Energy, 6 M.S.P.R.
124, 127 (1981) (finding that an administrative judge’s procedural error is of no
legal consequence unless it is shown to have adversely affected a party’s
substantive rights).
¶14 We also find no merit to the appellant’s claim that the administrative judge
exhibited bias warranting recusal by issuing the initial decision without
considering his July 12, 2016 jurisdictional response and by denying his request
for discovery. PFR File, Tab 7 at 6, 8. It is well settled that an administrative
judge’s case-related rulings, even if erroneous, are insufficient to establish bias
7
and that claims of perceived adjudicatory errors simply do not provide a basis for
recusal. Hay v. U.S. Postal Service, 106 M.S.P.R. 151, ¶ 18 (2007).
The administrative judge did not notify the appellant of his jurisdictional burden
concerning his USERRA claim.
¶15 The appellant, whose veteran status is undisputed, reasserts on review his
claim that the agency violated 38 U.S.C. § 4311 by terminating him. PFR File,
Tab 3, Subtab 27, Exhibit 600 at 1, 17. The administrative judge, however, did
not notify him of how to establish jurisdiction over his USERRA claims, and the
agency’s responses below did not cure this error. Thus, we must remand the
appeal to ensure that the appellant receives notice of the jurisdictional burd en
regarding his USERRA claim. 6 See Burgess v. Merit Systems Protection Board,
758 F.2d 641, 643-44 (Fed. Cir. 1985) (finding that an appellant must receive
explicit information on what is required to establish an appealable jurisdictional
issue).
ORDER
For the reasons discussed above, we remand the USERRA claims to the
Western Regional Office for further adjudication in accordance with this Remand
Order. The administrative judge should provide the appellant with the following
as to his USERRA jurisdictional burden: specific notice, an
6
The appellant’s USERRA claims do not provide a basis for conferring Board
jurisdiction over his due process, nonUSERRA discrimination, or prohibited personnel
practice claims. See Metzenbaum v. Department of Justice, 89 M.S.P.R. 285, ¶ 15
(2001) (reaffirming that the Board’s authority to review USERRA claims does not
provide a basis for reviewing other claims of prohibited discrimination).
8
opportunity to conduct discovery, and an opportunity to present evidence and
argument.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.