Kennington v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
TERRY L. KENNINGTON,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2010-3045
__________________________
Petition for review of the Merit Systems Protection
Board in Case no. DE315H090428-I-1.
____________________________
Decided: July 8, 2010
____________________________
TERRY L. KENNINGTON, of Layton, Utah, pro se.
MICHAEL A. CARNEY, General Attorney, Office of the
General Counsel, Merit Systems Protection Board, of
Washington, DC, for respondent. With him on the brief
were JAMES M. EISENMANN, General Counsel, and KEISHA
DAWN BELL, Deputy General Counsel.
__________________________
KENNINGTON v. MSPB 2
Before RADER, Chief Judge, LOURIE and BRYSON, Circuit
Judges.
PER CURIAM.
Kennington appeals from the decision of the Merit
Systems Protection Board (“the Board”) dismissing his
appeal of removal for lack of jurisdiction. Kennington v.
Dep’t of the Treas., MSPB Docket No. DE-315H-09-0428-I-
1 (August 25, 2009). Because the Board properly found
that it did not have jurisdiction over Kennington’s claims,
we affirm.
BACKGROUND
Kennington was appointed to the position of Supervi-
sory Data Transcriber in the Wage and Investment Unit
of the Internal Revenue Service (“IRS”) in January 2009.
His appointment was subject to the completion of a one-
year probationary period. Kennington’s employment was
terminated in June 2009 on the basis of inappropriate
behavior and disruptive comments. Specifically, in April
2009, in a meeting with his subordinates, Kennington
stated that he had visions and was able to communicate
with Jesus. In addition, in June 2009, Kennington tele-
phoned a subordinate during off-duty hours to report
having seen an unidentified flying object (UFO). In both
cases, Kennington was told by his immediate supervisor
or acting immediate supervisor that his behavior was
unacceptable, caused his subordinates distress, and was
disruptive. Kennington contends that he was further
instructed that he was “not allowed to mention Jesus.” In
the course of that conversation, Kennington noted the use
of the term “in the year of our Lord” in an e-mail from the
director and in a press release from the White House
about lesbian, gay, bisexual, and transgender pride month
3 KENNINGTON v. MSPB
(“the Press Release”). He became distraught at these
references to “the Lord” when he was not permitted to
discuss Jesus.
Kennington was terminated effective June 18, 2009.
He timely filed an appeal, alleging discrimination based
on religious beliefs and retaliation for mentioning he was
going to file a discrimination claim against the agency.
Kennington further alleged violations of Title VII of the
Civil Rights Act of 1964 and the First Amendment. In
response to a motion to dismiss for lack of jurisdiction,
Kennington argued that the agency had discriminated
against him in violation of 5 C.F.R. § 315.806 and failed to
comply with the requirements of 5 C.F.R. § 315.805.
The administrative judge (“AJ”) dismissed for lack of
jurisdiction. First, the AJ found that because Kennington
had not completed a year of current continuous service, or
had any prior federal experience, he was not an “em-
ployee” under 5 U.S.C. § 7511(a)(1)(A)(i) or (ii). The AJ
then found that Kennington failed to nonfrivolously allege
that he was terminated for pre-appointment reasons
under 5 C.F.R. § 315.806(c) or discrimination based on
marital status discrimination or partisan political reasons
under 5 C.F.R. § 315.806(b).
The Board denied Kennington’s petition for review
and the AJ’s initial decision became the final decision of
the Board. Kennington timely appealed.
DISCUSSION
The scope of our review in an appeal from a Board de-
cision is generally limited. We can only set aside the
Board’s decision if it was “(1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law,
KENNINGTON v. MSPB 4
rule, or regulation having been followed; or (3) unsup-
ported by substantial evidence.” 5 U.S.C. § 7703(c); see
Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed.
Cir. 2003). Whether the Board has jurisdiction over an
appeal is a question of law, which we review de novo.
Delalat v. Dep’t of Air Force, 557 F.3d 1342, 1343 (Fed.
Cir. 2009).
Kennington argues that although he is not an “em-
ployee” under 5 U.S.C. § 7511(a)(1)(A), defined as some-
one who has completed a year of current continuous
service, he still maintains limited appeal rights. In
addition, he argues that he should have been given a 30-
day advance notice of termination, pursuant to 5 U.S.C.
§ 7513(b)(1), which requires 30 days advance written
notice to an employee against whom an action is pro-
posed.
Kennington next argues that although he was given
written notice of the reasons for his termination, they
were unclear and do not make sense, because the “coun-
seling” he received was an instance of religious discrimi-
nation. Kennington also argues that his termination was
for pre-appointment reasons, pointing to evidence that the
IRS knew that he had previously been employed as a
psychic, and alleging that this was a cause of his termina-
tion.
Kennington then turns to partisan political reasons
and marital status discrimination, two bases on which a
terminated probationary employee may challenge his
termination. He alleges that his termination was par-
tially political because he invoked the Press Release in
protesting his instructions not to discuss Jesus at work.
He argues that the Board erred in limiting political dis-
crimination to termination that resulted from affiliation
with, or support of, a recognized political party, its candi-
5 KENNINGTON v. MSPB
dates for public office or other political campaign activity.
He further alleges that his termination involved marital
status discrimination. In support, Kennington again
relies on his statements about the Press Release’s use of
the term “in the year of our Lord,” while Kennington was
not permitted to discuss Jesus at work. He argues that
the President, who is allowed to use the term, is married,
whereas Kennington is not permitted to marry someone of
the same sex. Lastly, in his brief to this court and his
brief in lieu of oral argument, Kennington focuses on his
friendship with an Iranian man, considered a prophet by
some. He argues that because his friendship was known
to the office, his termination was likely based partially on
his affiliation with the man, again implicating political
reasons for his termination. Regarding his grounds for
asserting jurisdiction, Kennington argues that he need
not present evidence to support his charges, but that the
allegations alone are sufficient to support jurisdiction.
The government argues that the Board properly found
that Kennington is not an “employee” under 5 U.S.C.
7511(a)(1)(A)(i) or (ii), and that as such, he does not have
the right to appeal his removal to the Board under
§ 7701(a). Rather, his appeal is limited to those situa-
tions described by the regulations.
Next, the government argues that Kennington failed
to nonfrivolously allege that the IRS violated 5 C.F.R.
§ 315.806(b), (c) or (d). The government argues that
Kennington’s allegations of marital status discrimination
were pro forma, and that Kennington fails to allege facts
suggesting that he, as an unmarried employee, was
treated differently from married employees. In addition,
according to the government, Kennington failed to allege
partisan political discrimination because his allegations of
discrimination were not based upon membership or
affiliation with a political party.
KENNINGTON v. MSPB 6
The government argues that Kennington failed to al-
lege that the IRS removed him for a pre-appointment
reason because he did not present nonfrivolous allegations
that the IRS relied on his psychic abilities or prior em-
ployment with “Planet Rainbow” in deciding to terminate
him. Lastly, the government argues that Kennington
did not present his argument as to improper procedure or
arguments relating to his Iranian friend below, thereby
waiving them.
We agree with the government that the Board prop-
erly found that it did not have jurisdiction over Kenning-
ton’s appeal. As a preliminary matter, the parties do not
dispute that Kennington is not an “employee” under 5
U.S.C. 7511(a)(1)(A)(i) or (ii). As a result, Kennington has
no statutory right of appeal. However, he is entitled to
appeal pursuant to 5 C.F.R. § 315.806(b) if his termina-
tion was based on partisan political reasons or marital
status, pursuant to subsection (c) for improper procedure,
or pursuant to subsection (d) for discrimination based on
religion “only if such discrimination is raised in addition
to one of the issues stated in paragraph (b) [partisan
political or marital status discrimination] or (c) [improper
procedure].” In addition, Kennington may appeal if he
was terminated for a pre-appointment reason, pursuant
to 5 C.F.R. § 315.805.
The Board correctly determined that Kennington did
not make a nonfrivolous allegation of partisan political
discrimination. Stokes v. Federal Aviation Admin., 761
F.2d 682, 685-86 (Fed. Cir. 1985). Kennington did not
allege, for example, that his termination was a result of
his support of, or opposition to, President Obama or
because of any affiliation with a particular party or can-
didate. Mastriano v. Federal Aviation Admin., 714 F.2d
1152, 1155-56 (Fed. Cir. 1983). Kennington further failed
to nonfrivolously allege discrimination based on marital
7 KENNINGTON v. MSPB
status. Specifically, Kennington did not assert facts
which, if proven, would demonstrate that married em-
ployees were treated differently from unmarried employ-
ees. Stokes v. Federal Aviation Admin., 761 F.2d at 685.
His allegations that his supervisor and President Obama
are able to marry while he is not able to marry someone of
the same sex are devoid of any hint of causation.
Kennigton’s reliance on 5 C.F.R. § 315.805 is equally
unavailing. That regulation provides that when a proba-
tionary employee is terminated for conditions arising in
whole or in part before his appointment, he is entitled to
advance written notice of the termination, an opportunity
to respond, and notice of the adverse decision. 5 C.F.R.
§ 315.805 Kennington did not assert facts which, if
proven, would demonstrate that he was terminated
because of the psychic abilities he developed during his
prior employment with “Planet Rainbow.” Again, Ken-
nington did not allege any causal connection between his
alleged psychic abilities and the decision to remove him.
We defer to the Board’s factual finding, based on the
termination letter, that “[Kennington’s] removal was
based on post-appointment reasons, i.e., his undisputed
statements in April and June 2009.” Kennington, MSPB
Docket No. DE-315H-09-0428-I-1 at 7. Because his ter-
mination was for post-appointment reasons, the IRS was
not required to give him the notice and opportunity to
respond set forth in section 315.805.
In addition, neither Kennington’s argument that his
termination letter did not meet procedural requirements
nor his argument relating to his Iranian friend were
presented to the Board. Therefore, these arguments were
waived and we decline to examine them here. Lastly,
because Kennington failed to make nonfrivolous allega-
tions of procedural impropriety or discrimination based on
marital status or on partisan political bases, jurisdiction
KENNINGTON v. MSPB 8
cannot rest on his assertions of religious discrimination
pursuant to 5 C.F.R. § 315.806(d).
Accordingly, we affirm the Board’s decision dismissing
the appeal for lack of jurisdiction.
AFFIRMED
COSTS
No costs.