Bethany Sulecki v. Department of Veterans Affairs ( 2024 )


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  •                       UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    BETHANY TAYLOR SULECKI,                         DOCKET NUMBER
    Appellant,                          PH-0752-20-0108-I-1
    v.
    DEPARTMENT OF VETERANS                          DATE: June 17, 2024
    AFFAIRS,
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Chris Richmond , Beckley, West Virginia, for the appellant.
    Craig Komorowski , Esquire, Huntington, West Virginia, for the agency.
    BEFORE
    Cathy A. Harris, Chairman
    Raymond A. Limon, Vice Chairman
    Henry J. Kerner, Member
    FINAL ORDER
    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 in the following circumstances:           the
    initial decision contains erroneous findings of material fact; the initial decision is
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    based on an erroneous 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 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. Except as expressly MODIFIED to apply the nonfrivolous allegation
    standard and to clarify the correct jurisdictional standard for a nonpreference
    eligible individual in the excepted service, we AFFIRM the initial decision.
    BACKGROUND
    The agency appointed the appellant to a Licensed Practical Nurse position
    in the excepted service effective April 14, 2019. Initial Appeal File (IAF), Tab 5
    at 67. On the Standard Form 50 documenting the appellant’s appointment, the
    agency stated that the appointment was subject to the completion of a 1-year
    initial probationary period. 
    Id. at 67
    . Effective November 22, 2019, the agency
    terminated the appellant’s appointment for “failure to qualify” during the
    probationary period. 
    Id. at 9-10
    . The agency’s termination letter noted that the
    termination was “due to conduct reasons.” 
    Id. at 10
    .
    The appellant appealed the termination to the Board.        IAF, Tab 1.    In
    response to a jurisdictional order, the appellant argued that the termination was in
    violation of the agency’s policies set forth in a collective bargaining agreement
    and 
    5 C.F.R. § 315.805
    (b). IAF, Tab 4 at 4-5. Without holding the requested
    hearing, the administrative judge dismissed the appeal for lack of jurisdiction.
    IAF, Tab 6, Initial Decision (ID) at 1. The administrative judge found that the
    3
    appellant failed to nonfrivolously allege that she was an “employee” with Board
    appeal rights under 5 U.S.C. chapter 75.           ID at 3-4.     He further found that,
    because the Board lacked jurisdiction over the appeal, it also lacked jurisdiction
    to review or enforce the agency’s policies or the provisions of its collective
    bargaining agreement. 
    Id.
    The appellant has filed a petition for review, predominantly challenging the
    merits of her probationary termination, and the agency has responded. Petition
    for Review (PFR) File, Tabs 1, 3.
    DISCUSSION OF ARGUMENTS ON REVIEW
    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). The appellant bears the burden
    of proving Board jurisdiction by a preponderance of the evidence. Tolbert v.
    Small Business Administration, 
    104 M.S.P.R. 418
    , ¶ 6, aff’d, 
    245 F. App’x 964
    (Fed. Cir. 2007); 
    5 C.F.R. § 1201.56
    (b)(2)(i)(A). However, if an appellant makes
    a nonfrivolous allegation that the Board has jurisdiction, she in entitled to a
    hearing on the jurisdictional question. 1 Tolbert, 
    104 M.S.P.R. 418
    , ¶ 7.
    Only an “employee,” as defined under 5 U.S.C. chapter 75, subchapter II,
    can appeal to the Board from an adverse action such as a termination. 2
    Ramirez-Evans v. Department of Veterans Affairs, 
    113 M.S.P.R. 297
    , ¶ 9 (2010);
    see 
    5 U.S.C. §§ 7511
    (a)(1), 7512(1), 7513(d).                 A nonpreference eligible
    1
    A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
    issue. 
    5 C.F.R. § 1201.4
    (s). An allegation generally will be considered nonfrivolous
    when, under oath or penalty of perjury, an individual makes an allegation that is more
    than conclusory, is plausible on its face, and is material to the legal issues in the appeal.
    
    Id.
    2
    The agency appointed the appellant to her Licensed Practical Nurse position under the
    authority of 
    38 U.S.C. § 7401
    (3). IAF, Tab 5 at 67. The Board has held that
    individuals appointed under 
    38 U.S.C. § 7401
    (3) are entitled to the same appeal rights
    regarding disciplinary actions as individuals appointed under title 5 of the United States
    Code. Barrand v. Department of Veterans Affairs, 
    112 M.S.P.R. 210
    , ¶ 9 (2009).
    4
    individual 3 in the excepted service is an “employee” within the meaning of
    
    5 U.S.C. § 7511
     only if one of the following is true: (1) she is not serving a
    probationary or trial period under an initial appointment pending conversion to
    the competitive service; or (2) she has completed 2 years of current continuous
    service in the same or similar positions in an Executive agency under other than a
    temporary appointment limited to 2 years or less.               
    5 U.S.C. § 7511
    (a)(1)(C)
    (i)-(ii); Ramirez-Evans, 
    113 M.S.P.R. 297
    , ¶ 9.
    The administrative judge did not address the first method of demonstrating
    whether a nonpreference eligible individual in the excepted service is an
    “employee” for purposes of chapter 75, and the appellant has not raised the issue
    on review. Nonetheless, we modify the initial decision to find that the appellant
    has failed to nonfrivolously allege she is an “employee” under the first method. 4
    Specifically, the appellant has not alleged, and there is nothing in the record to
    suggest, that hers was an initial appointment pending conversion to the
    competitive service. Therefore, subsection 7511(a)(1)(C)(i) does not apply. See
    Van Wersch v. Department of Health & Human Services , 
    197 F.3d 1144
    , 1150 n.6
    (Fed. Cir. 1999); Forest v. Merit Systems Protection Board, 
    47 F.3d 409
    , 411-12
    (Fed. Cir. 1995).
    Turning to the second method, the administrative judge identified the
    standard set forth in 
    5 U.S.C. § 7511
    (a)(1)(C)(ii) in the initial decision.
    ID at 2-3. Under this section, a nonpreference eligible individual in the excepted
    service is an employee if she has completed 2 years of current continuous service
    in the same or similar positions in an Executive agency under other than a
    temporary appointment limited to 2 years or less. Ramirez-Evans, 
    113 M.S.P.R. 3
       The appellant has not alleged that she is a preference eligible. IAF, Tab 1 at 1.
    4
    The administrative judge here seems to have found that the appellant did not prove
    jurisdiction. ID at 3. However, to be entitled to a jurisdictional hearing, an appellant
    need only nonfrivolously allege jurisdiction. Tolbert, 
    104 M.S.P.R. 418
    , ¶ 7. We
    therefore further modify the initial decision to apply the nonfrivolous allegation
    standard.
    5
    297, ¶ 9. The administrative judge determined, however, that the appellant was
    required to prove that she had completed 1 year of current continuous service in
    the same or similar position, and she did not do so. ID at 3. The administrative
    judge’s analysis appeared to apply section 7511(a)(1)(A), which relates to
    individuals in the competitive service, even though the appellant is in the
    excepted service.    Nevertheless, any adjudicatory error by the administrative
    judge did not prejudice the appellant’s substantive rights because her lack of 1
    year of current continuous service for purposes of 
    5 U.S.C. § 7511
    (a)(1)(A)
    necessarily means that she lacked 2 years of current continuous service for
    purposes of 
    5 U.S.C. § 7511
    (a)(1)(C)(ii). See Panter v. Department of the Air
    Force, 
    22 M.S.P.R. 281
    , 282 (1984) (finding that an adjudicatory error which is
    not prejudicial to a party’s substantive rights provides no basis for reversing the
    initial decision). We thus further modify the initial decision to apply the correct
    standard for nonpreference eligible individuals in the excepted service.
    In particular, it is undisputed that the appellant had fewer than 2 years of
    Federal service to her credit. IAF, Tab 1 at 1. Thus, she does not satisfy section
    7511(a)(1)(C)(ii). Accordingly, the appellant has failed to nonfrivolously allege
    that she is an “employee” who may appeal her termination to the Board under
    5 U.S.C. chapter 75. 5
    The remainder of the appellant’s arguments on review involve the merits of
    the agency’s termination, including whether the termination violated any agency
    policies or a collective bargaining agreement. PFR File, Tab 1 at 4-6. Because
    we find that she has failed to nonfrivolously allege Board jurisdiction, we do not
    reach these arguments. See Santos v. Department of Energy, 
    102 M.S.P.R. 370
    , ¶
    5
    The appellant below further argued that her termination was in violation of 
    5 C.F.R. § 315.805
    . IAF, Tab 4 at 5. However, this regulation applies to competitive service
    probationers terminated for preappointment reasons—not to excepted service
    probationers terminated for postappointment reasons. See Mancha v. Department of
    Homeland Security, 
    112 M.S.P.R. 216
    , ¶¶ 3, 9-10 (2009).
    6
    6 (2006) (finding the Board must first address the matter of jurisdiction before
    proceeding to the merits of the appeal).
    NOTICE OF APPEAL RIGHTS 6
    The initial decision, as supplemented by this Final Order, constitutes the
    Board’s final decision in this matter.      
    5 C.F.R. § 1201.113
    .      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 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).
    6
    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.
    7
    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.
    (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
    8
    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:
    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
    9
    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. 7   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).
    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
    7
    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.
    10
    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.
    

Document Info

Docket Number: PH-0752-20-0108-I-1

Filed Date: 6/17/2024

Precedential Status: Non-Precedential

Modified Date: 6/18/2024