Matthew Steblein v. Department of the Navy ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MATTHEW PAUL STEBLEIN, DOCKET NUMBER
Appellant, PH-315H-22-0093-I-1
v.
DEPARTMENT OF THE NAVY, DATE: March 13, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Matthew Paul Steblein , Philadelphia, Pennsylvania, pro se.
Jon D. Pavlovcak and Kimberly M. Engel , Philadelphia, Pennsylvania, for
the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. 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).
Because the appellant was serving in a 2-year probationary period and he
had completed less than 2 years of current continuous service when he was
terminated, the administrative judge properly found that the appellant failed to
make a nonfrivolous allegation that he qualifies as an “employee” with appeal
rights to the Board under 5 U.S.C. § 7511, as amended by 10 U.S.C. § 1599e.
Initial Appeal File (IAF), Tab 9, Initial Decision at 4. The appellant does not
challenge this finding on review and we discern no reason to disturb it.
For the first time on review, the appellant argues that his termination was
based on marital status discrimination. Petition for Review (PFR) File Tab 1 at 4.
The Board generally will not consider an argument raised for the first time in a
petition for review absent a showing that it is based on new and material evidence
not previously available despite the party’s due diligence. Clay v. Department of
the Army, 123 M.S.P.R. 245, ¶ 6 (2016). However, the issue of jurisdiction is
always before the Board and may be raised by either party or by the Board sua
sponte at any time during a proceeding. Ney v. Department of Commerce,
115 M.S.P.R. 204, ¶ 7 (2010). For the reasons stated below, we find that the
appellant has not made a nonfrivolous allegation of Board jurisdiction under
5 C.F.R. § 315.806.
3
To make a nonfrivolous allegation of marital status discrimination,
an appellant must allege facts which, taken as true, would show that he was
treated differently because of his marital status or facts that go to the essence of
his status as married, single, or divorced. Marynowski v. Department of the Navy,
118 M.S.P.R. 321, ¶ 9 (2012). An appellant’s allegations regarding marital status
discrimination must be “more than mere conjecture.” Ellis v. Department of the
Treasury, 81 M.S.P.R. 6, ¶ 13 (1999); see Stokes v. Federal Aviation
Administration, 761 F.2d 682, 686 (Fed. Cir. 1985) (stating that to establish
Board jurisdiction an appellant must make more than a pro forma pleading that is
merely conclusory). Here, the termination notice shows that the agency
terminated the appellant during his probationary period for getting into
an altercation with another coworker. IAF, Tab 7 at 4. The appellant alleges that
the agency also wanted to terminate him because he had “court ordered
obligations to [his] son, which conflicts with the 24/7 shift schedule” and that he
made the agency aware of his child custody situation prior to being hired.
PFR File, Tab 1 at 4. The Board has held that childcare responsibilities per se are
not dependent on an individual’s marital status and do not go to the essence of
marital status. Green–Brown v. Department of Defense, 118 M.S.P.R. 327, ¶ 7
n.2 (2012). The appellant has not alleged facts which, taken as true, would show
that he was treated differently because of his marital status or that go to the
essence of his marital status. For instance, he has not alleged that the agency
would have treated a married employee more favorably under the same or similar
circumstances, or that the agency otherwise exhibited a keen interest in his
marital status. See, e.g., Lipniarski v. Merit Systems Protection Board,
26 F. App’x 919, 922-23 (Fed. Cir. 2001) 2 (finding that a probationary employee
failed to nonfrivolously allege marital status discrimination because he did not
present any evidence that the agency treated single employees more favorably
2
The Board may rely on unpublished decisions of the U.S. Court of Appeals for the
Federal Circuit if it finds the court’s reasoning persuasive, as we do here. Mauldin v.
U.S. Postal Service, 115 M.S.P.R. 513, ¶ 12 (2011).
4
than married employees regarding extended leave for family obligations);
Marynowski, 118 M.S.P.R. 321, ¶ 9 (finding that a probationary employee
nonfrivolously alleged marital status discrimination because she alleged that the
individual who recommended her termination took a keen interest in her marital
status). Thus, we believe the appellant has not made a nonfrivolous allegation of
marital status discrimination.
Lastly, on review, the appellant argues the merits of his termination. PFR
File, Tab 1 at 5-6. Because the Board lacks jurisdiction over this appeal, it
cannot consider the appellant’s arguments regarding the merits of his termination.
Kellum v. Veterans Administration, 2 M.S.P.R. 65, 67 (1980). Therefore, we find
that the administrative judge properly determined that the appellant has not made
a nonfrivolous allegation of Board jurisdiction. 3
NOTICE OF APPEAL RIGHTS 4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
3
On review, the appellant submitted a page from the MSPB website and re-submitted
the first page of her termination notice that was already part of the record below. E.g.,
compare IAF, Tab 7 at 4, with PFR File, Tab 1 at 6-7. They are only being considered
here to the extent they impact the issues on review.
4
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
If you are interested in securing pro bono representation 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
If you are interested in securing pro bono representation 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.