Brenda G. Watson v. Department of Veterans Affairs ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRENDA G. WATSON, DOCKET NUMBER
Appellant, AT-315H-16-0649-I-1
v.
DEPARTMENT OF VETERANS DATE: November 21, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Brenda G. Watson, Powder Springs, Georgia, pro se.
Amee Patel, Decatur, Georgia, 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with re quired 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 clos ed. 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, 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 The appellant, a preference-eligible veteran, was appointed pursuant to a
Veterans Recruitment Appointment (VRA) to the excepted-service position of
GS-5 Medical Support Assistant on November 15, 2015. Initial Appeal File
(IAF), Tab 6 at 24. The appellant was subject to a 1-year trial period. Id. She
was terminated effective June 23, 2016, for displaying inappropriate conduct and
failing to maintain regular attendance. Id. at 13. The appellant filed the instant
appeal, alleging, among other things, that she was terminated maliciously under
false allegations, given assignments that were not consistent with her position,
subjected to a hostile work environment, and retaliated against for filing
discrimination complaints with the Equal Employment Opportunity Commission
(EEOC). IAF, Tab 1 at 3, 10-13.
¶3 The administrative judge issued a jurisdictional notice that set forth the
appellant’s jurisdictional burden under 5 U.S.C. § 7511(a)(1)(A), and ordered the
appellant to file evidence or argument to establish why the appeal should not be
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dismissed for lack of jurisdiction. 2 IAF, Tab 3. The appellant did not respond to
the administrative judge’s order. The agency responded that the appellant was
serving a trial period with no statutory right of appeal to the Board, and requested
that the Board dismiss the appeal for lack of jurisdiction. IAF, Tab 6 at 6-7.
¶4 In her initial decision, the administrative judge dismissed the appeal for
lack of jurisdiction, finding that it was undisputed that the appellant had less than
1 year of service at the time of her termination and, therefore, she did not meet
the statutory definition of an employee under 5 U.S.C. § 7511(a)(1)(B). IAF,
Tab 8, Initial Decision (ID) at 2. The administrative judge also found that the
appellant did not allege that her termination was based on partisan political
reasons, marital status, or preappointment reasons. ID at 3.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. She reargues the merits of her termination, but does not make any
arguments relating to Board jurisdiction. Id. The agency has responded to the
appellant’s petition, arguing that the appellant has not alleged any errors in the
initial decision and that the petition merely restates the allegations presented in
the initial appeal. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Under 5 U.S.C. chapter 75,
subchapter II, an individual who meets the definition of “employee” at 5 U.S.C.
2
In the jurisdictional order, the administrative judge described the appellant as a
probationary employee in the competitive service. IAF, Tab 3. As noted, the appella nt
was appointed to an excepted-service position under the VRA. Although in the
excepted service, individuals appointed under the VRA are entitled to the same appeal
rights during the first year of their trial periods as competitive -service employees.
Maibaum v. Department of Veterans Affairs, 116 M.S.P.R. 234, ¶ 18 (2011); 5 C.F.R.
§ 307.105. Thus, although imprecise in her choice of language, the administrative
judge correctly set forth the appellant’s jurisdiction al burden and her imprecision did
not prejudice the appellant.
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§ 7511(a)(1) generally has the right to challenge her removal from the Federal
service by filing an appeal with the Board. Maibaum v. Department of Veterans
Affairs, 116 M.S.P.R. 234, ¶ 9 (2011). To be considered an “employee” for the
purposes of Board jurisdiction, a preference-eligible individual in the excepted
service must have completed 1 year of current continuous service in the same or
similar positions in an Executive agency, or the Postal Service or Postal
Regulatory Commission. 5 U.S.C. § 7511(a)(1)(B); see Maibaum, 116 M.S.P.R.
234, ¶ 9.
¶7 Here, the appellant was appointed to her position on November 15, 2015,
and the appointment was subject to a 1-year trial period. IAF, Tab 6 at 24. She
was terminated effective June 23, 2016, approximately 6 months into the trial
period. Id. at 13-14. Thus, as the administrative judge observed, it is undisputed
that the appellant was terminated during the trial period. ID at 2; IAF, Tab 1
at 2-3; IAF, Tab 6 at 6, 24. Furthermore, the appellant did not allege any other
service that could be “tacked” to her service with the agency to meet the
requirement for 1 year of “current continuous service.” Amend v. Department of
Justice, 102 M.S.P.R. 614, ¶¶ 5-6 (2006). Accordingly, we agree with the
administrative judge that the appellant was not an “e mployee” with a statutory
right to appeal her termination to the Board.
¶8 As noted, although in the excepted service, individuals appointed under the
VRA are entitled to the same appeal rights during the first year of the ir trial
periods as competitive-service employees and, therefore, by regulation, the
appellant could appeal her termination on the ground that it was based on partisan
political reasons, marital status, or preappointment reasons . Maibaum,
116 M.S.P.R. 234, ¶ 18; 5 C.F.R. § 307.105. As correctly found by the
administrative judge, the appellant did not claim that her termination was based
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on any of these reasons. ID at 3. She does not claim error in this regard on
review. PFR File, Tab 1. Thus, we discern no basis for a finding of jurisdiction. 3
¶9 The appellant has provided several documents to support her petition for
review, including character witness statements, reports of contact, and emails. Id.These documents provide no basis to disturb the initial decision because they are
neither new nor material. Cf. 5 C.F.R. § 1201.115(d) (the Board may grant a
petition for review if it contains new and material evidence). This evidence is not
new because it all predates the initial decision, and it was either contained in the
record below or lacks an explanation of why it previously was unavailable despite
the appellant’s due diligence. See Meier v. Department of the Interior,
3 M.S.P.R. 247, 256 (1980) (explaining that evidence that is already a part of the
record is not new); Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980)
(holding that the Board will not consider evidence submitted for the first time
with the petition for review absent a showing that it was unavailable before the
record was closed despite the party’s due diligence). This evidence is also not
material because the appellant has not explained why she believes that it warrants
an outcome different from that of the initial decision. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
U.S. Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
3
Because the Board has no jurisdiction over this termination app eal, the Board has no
independent jurisdiction to adjudicate the appellant’s discrimination claims. See
Hurston v. Department of the Army, 113 M.S.P.R. 34, ¶ 11 (2010); Wren v. Department
of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
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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 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 i s 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 representa tion for an appeal to
the U.S. Court of Appeals for the Federal Circuit, 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
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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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.