Cheril C. Carrington v. Department of the Army ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHERIL C. CARRINGTON, DOCKET NUMBER
Appellant, CH-315H-15-0458-I-1
v.
DEPARTMENT OF THE ARMY, DATE: September 19, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Cheril C. Carrington, Las Vegas, Nevada, pro se.
Michael A. Suire, Fort Knox, Kentucky, 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 for lack of jurisdiction her appeal of her termination during her
probationary period. 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
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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 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, 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).
¶2 Effective October 20, 2014, the agency appointed the appellant to a GS-13
Education Services Specialist position in the competitive service subject to the
completion of a 1-year probationary period. Initial Appeal File (IAF), Tab 11 at
7. On May 5, 2015, the agency terminated her during her probationary period for
alleged poor performance and misconduct. Id. at 8-12. The appellant filed an
appeal in which she contended that she was an employee with full chapter 75 and
chapter 43 appeal rights because she had completed a probationary period and
acquired career status during prior periods of Federal employment. IAF, Tab 1 at
6. She further contended that she was not required to serve a probationary period
because she was entitled to lifetime reinstatement due to her veterans’ preference
status and her prior career status. Id. at 8.
¶3 After affording the appellant notice of the burdens and elements of proving
jurisdiction in her case, IAF, Tabs 3-4, the administrative judge issued an initial
decision on the written record in which she dismissed the appeal for lack of
jurisdiction. IAF, Tab 18, Initial Decision (ID) at 18.
¶4 Because the appellant was terminated from a competitive service position,
she must satisfy the definition of “employee” set forth at 5 U.S.C.
§ 7511(a)(1)(A) to have Board appeal rights under chapter 75. Henderson v.
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Department of the Treasury, 114 M.S.P.R. 149, ¶ 9 (2010). To qualify as an
“employee,” the appellant must show that she is not serving a probationary period
or has completed 1 year of current continuous service under other than a
temporary appointment limited to 1 year or less. 5 U.S.C. § 7511(a)(1)(A);
McCormick v. Department of the Air Force, 307 F.3d 1339, 1341-43 (Fed. Cir.
2002).
¶5 An appellant who has not served a full year under her appointment can
show that she has completed her probationary period, and so is no longer a
probationer, by tacking on prior service if: (1) the prior service was rendered
immediately preceding the probationary appointment; (2) it was performed in the
same agency; (3) it was performed in the same line of work; and (4) it was
completed with no more than one break in service of less than 30 days.
Henderson, 114 M.S.P.R. 149, ¶ 10. Alternatively, an employee can show that,
while she may be a probationer, she is an “employee” with chapter 75 appeal
rights because, immediately preceding the adverse action, she had completed at
least 1 year of current continuous service without a break in Federal civilian
service of a workday. Id.
¶6 The appellant here served about 6 months of her 1-year probationary period.
She has several periods of prior Federal civilian service, from February 18, 1984,
to September 28, 1988, with the U.S. Postal Service (USPS), IAF, Tab 1 at 9,
Tab 5 at 51; from December 30, 2002, to November 29, 2003, with the General
Services Administration as a GS-5 Supply Technician, IAF, Tab 11 at 13-14; and
from November 30, 2003, to April 30, 2004, with the Department of Homeland
Security (DHS) as a GS-5 User Fee Collection Technician, id. at 15-16. None of
this prior service was in the Department of the Army, the agency from which she
is currently being terminated, and it therefore does not count towards the
completion of her probationary period. Similarly, because her last period of
employment with the DHS ended on April 30, 2004, see id. at 16, she had a break
in service of more than a workday between the end of her employment with the
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DHS and her appointment to the position at issue here and, therefore, does not
have 1 year of current continuous service. Therefore, the appellant does not
qualify as an “employee” under either 5 U.S.C. § 7511(a)(1)(A)(i) or (A)(ii).
¶7 A probationary employee in the competitive service can only bring an
appeal of her termination if she was discriminated against because of her marital
status or partisan political affiliation, or if the agency action was based in whole
or in part on issues that arose preappointment and the required procedures were
not followed. Henderson, 114 M.S.P.R. 149, ¶ 9. The appellant here was
terminated because of her post-appointment conduct and performance. IAF,
Tab 11 at 8. Therefore, the Board only has jurisdiction over her termination if
she shows that her termination was based on marital status discrimination or
partisan political reasons. See, e.g., Smith v. Department of Defense,
106 M.S.P.R. 228, ¶ 8 (2007). The administrative judge correctly found that the
appellant failed to make an allegation that her termination was based on either
ground, ID at 5-6, and we find that she correctly dismissed the appeal for lack of
jurisdiction.
¶8 In her petition for review, the appellant reiterates her argument below that
she was eligible for lifetime reinstatement based on her veterans’ preference
which, she alleges, meant she should not have been required to serve a
probationary period. Petition for Review (PFR) File, Tab 1 at 4-5, 9, 12. It is
significant that the agency did not effect the appellant’s appointment via
reinstatement, but, even if it had, it would appear that any such reinstatement
would have been improper. Under 5 C.F.R. § 315.401(a), an agency may appoint
a former employee who previously acquired career status to the competitive
service via reinstatement. There is no time limit on the eligibility for
reinstatement for a former employee who has fully completed the service
requirements for career tenure. 5 C.F.R. § 315.401(b). A person who previously
acquired career status is reinstated with career status. 5 C.F.R. § 315.402(b).
However, “Career tenure is acquired only under a permanent appointment in the
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competitive service that provides or leads to competitive status.” 5 C.F.R.
§ 315.201(b)(2). Positions in the USPS are in the excepted service. 5 U.S.C.
§§ 2105(e), 7511(a)(1)(B); 39 U.S.C. § 1005(a)(4)(A); McBride v. U.S. Postal
Service, 78 M.S.P.R. 411, 414 (1998). Therefore, the appellant’s excepted
service with the USPS did not afford her career tenure with reinstatement rights
to the Federal civilian competitive service and is not a reason to excuse her from
successfully completing a probationary period.
¶9 The appellant also asserts on review that the agency did not inform her until
several months after she accepted the appointment and relocated to another state
at her own expense that she would be required to serve a probationary period.
PFR File, Tab 1 at 5-6, 9, 13-14. The record evidence tends to support the
appellant’s allegation. Nevertheless, where a probationary period is required by
the nature of an appointment, it cannot be waived, even if the agency failed to
inform the employee that she must serve a probationary period. Cunningham v.
Department of the Army, 119 M.S.P.R. 147, ¶ 5 (2013); Laboube v. Department of
the Treasury, 105 M.S.P.R. 337, ¶ 8 (2007). Furthermore, the Board lacks the
authority to grant the appellant’s request for damages as a remedy for her
detrimental reliance on the agency’s inaccurate information. PFR File, Tab 1
at 17.
¶10 The appellant further alleges that the failure to effect her appointment via
reinstatement and the failure to afford her prior notice that she would be required
to serve a probationary period violated a basic requirement for employment
practices and is reviewable by the Board. PFR File, Tab 1 at 10, 14, 17-19. An
applicant for employment who believes that an employment practice applied to
her by the Office of Personnel Management (OPM) violates a basic requirement
in 5 C.F.R. § 300.103 is entitled to appeal to the Board. Sauser v. Department of
Veterans Affairs, 113 M.S.P.R. 403, ¶ 6 (2010); 5 C.F.R. § 300.104(a). The
Board has jurisdiction under 5 C.F.R. § 300.104(a) when two conditions are met:
first, the appeal must concern an employment practice that OPM is involved in
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administering; and second, the appellant must make a nonfrivolous allegation that
the employment practice violated one of the “basic requirements” for employment
practices set forth in 5 C.F.R. § 300.103. Sauser, 113 M.S.P.R. 403, ¶ 6.
“Employment practices,” as defined in OPM’s regulations, “affect the
recruitment, measurement, ranking, and selection” of applicants for positions in
the competitive service. 5 C.F.R. § 300.101. First of all, the appellant’s concerns
are about the agency’s actions after it selected her, not questions about how it
arrived at its decision to select one candidate over another. Thus, she has not
identified an employment practice subject to review by the Board.
¶11 Second, the appellant has not alleged that an employment practice was
applied to her by OPM, as required by 5 C.F.R. § 300.104(a), or that a valid
employment practice administered by OPM was misapplied to her by the agency,
as required by Dowd v. United States, 713 F.2d 720, 724 (Fed. Cir. 1983). Third,
the appellant has not alleged that an employment practice applied to her violates
one of the basic requirements contained in 5 C.F.R. § 300.103. Finally, the
alleged violations concern matters related to her employment and appointment,
not to her status as an applicant for employment prior to her selection. However,
only “candidates” may bring employment practices appeals to the Board under
5 C.F.R. § 300.104(a). National Treasury Employees Union v. Office of
Personnel Management, 118 M.S.P.R. 83, ¶ 9 (2012). Therefore, the appellant
has not raised a cognizable employment practices claim within the Board’s
jurisdiction.
¶12 The appellant further alleges that the administrative judge erred by not
holding a jurisdictional hearing. PFR File, Tab 1 at 5-6. To be entitled to a
jurisdictional hearing, the appellant must make nonfrivolous allegations
supported by factual assertions that would, if not controverted, require a finding
of Board jurisdiction. Burton v. Department of the Air Force, 118 M.S.P.R. 210,
¶ 8 (2012). The appellant here has made no assertions of fact that, if proven,
would show that she meets the definition of “employee” set forth at 5 U.S.C.
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§ 7511(a)(1)(A), or that would show that her termination was based on marital
status discrimination or partisan political reasons. Therefore, we find that the
administrative judge correctly determined that she was not entitled to a
jurisdictional hearing.
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:
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 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.
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If you are interested in securing pro bono representation for an appeal to
the United States 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 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.