Goss v. Department of the Air Force

Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-3242
DAVID H. GOSS,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
__________________________
DECIDED: April 11, 2005
__________________________
Before SCHALL, BRYSON, and GAJARSA, Circuit Judges.
PER CURIAM.
DECISION
David H. Goss petitions for review of the final decision of the Merit Systems
Protection Board (“Board”) that dismissed for lack of jurisdiction his appeal of the action
of the Department of the Air Force (“agency”) terminating his employment as a
probationary employee. Goss v. Dep’t of the Air Force, No. AT-315H-03-0278-I-1
(M.S.P.B. Jan. 20, 2004) (“Final Decision”). We affirm.
DISCUSSION
I.
On March 25, 2002, Mr. Goss received a career-conditional appointment to the
position of Electronics Worker, WG-8, at Robins Air Force Base, Georgia. The
condition of the appointment was that Mr. Goss successfully complete a one-year
period of probation. Mr. Goss did not complete the probationary period, as a result of
the agency terminating his employment, effective November 22, 2002, based on a
charge that he made inappropriate comments to another employee.
Mr. Goss appealed the agency’s action to the Board. In his initial filing, Mr. Goss
tried to establish Board jurisdiction by alleging that, based on prior federal employment
with the agency, he completed his probationary period of employment on April 25, 2002.
Mr. Goss asserted that he had previously received a career-conditional appointment
from the agency to the position of Clerk Typist, GS-2, effective June 22, 1976, from
which he was terminated on May 6, 1977. He also asserted that the clerk-typist position
entailed duties substantially similar to those of the electronics-worker position.
Accordingly, Mr. Goss contended that, because he previously served eleven months
with the agency as a clerk typist, he completed his probationary period after working
one month as an electronics worker.
The administrative judge (“AJ”) assigned to the appeal had reservations as to Mr.
Goss’ jurisdictional argument. Accordingly, on January 15, 2003, he issued an
acknowledgment order in which he ordered Mr. Goss to show cause as to why the
Board had jurisdiction in the case. Goss v. Dep’t of the Air Force, No. AT-315H-03-
0278-I-1 (M.S.P.B. Jan. 15, 2004) (“Acknowledgement Order”). The AJ informed Mr.
04-3242 2
Goss that, as the petitioner, he bore the burden of establishing jurisdiction. In addition,
the AJ informed Mr. Goss of the limited appeal rights of probationary employees. Id.
slip op. at 2. In response, Mr. Goss alleged that the Board had jurisdiction because his
claim was based on discrimination with respect to his marital status. However, the AJ
found that Mr. Goss failed to identify the names of any married or divorced employees
that were treated differently than him. The AJ consequently issued another order giving
Mr. Goss fifteen days to provide this information. Goss v. Dep’t of the Air Force, No.
AT-315H-03-0278-I-1 (M.S.P.B. Feb. 3, 2004) (“Order”).
On March 20, 2003, the AJ dismissed Mr. Goss’ appeal after determining that he
had not met his burden of establishing Board jurisdiction. Goss v. Dep’t of the Air
Force, No. AT-315H-03-0278-I-1, slip op. at 3 (M.S.P.B. Mar. 20, 2003) (“Initial
Decision”). First, with respect to Mr. Goss’ argument based on prior federal
employment, the AJ found that, even if the clerk-typist position was substantially similar
to the electronics-worker position, that fact would not establish jurisdiction because prior
employment does not count toward an employee’s probationary period if the break in
employment exceeded thirty calendar days. Id. slip op. at 3 (citing 5 C.F.R. § 315.802).
Second, the AJ found that Mr. Goss had failed to make a non-frivolous claim of marital
status discrimination. The AJ stated that an employee must allege a difference in
treatment between married employees and single employees. Mr. Goss (who is single)
did not meet this standard, the AJ concluded, because he failed to identify even one
married employee whom the agency treated differently. Id. slip op. at 5.
The AJ’s initial decision became the final decision of the Board on January 20,
2004, after the Board denied Mr. Goss’ petition for review for failure to meet the criteria
04-3242 3
for review set forth at 5 C.F.R. § 1201.115(d). This appeal followed. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
II.
Our scope of review of an appeal from a decision of the Board is limited to
whether the Board’s decision is arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; obtained without procedures required by law, rule,
or regulation having been followed; or unsupported by substantial evidence. 5 U.S.C.
§ 7703(c) (2000); Carson v. Dep’t of Energy, 398 F.3d 1369, 1374 (Fed. Cir. 2005).
Whether the Board has jurisdiction over an appeal is a question of law, which we review
de novo. Hayes v. United States Postal Serv., 390 F.3d 1373, 1376 (Fed. Cir. 2004).
The Board’s jurisdiction to review adverse personnel actions taken against
probationary government employees is extremely narrow. In fact, there is no statutory
basis for jurisdiction. Mastriano v. Fed. Aviation Admin., 714 F.2d 1152, 1155 (Fed. Cir.
1983). The Office of Personnel Management has, however, provided limited appeal
rights for probationary employees who allege they were terminated based on (1)
partisan political considerations or marital status discrimination, or (2) improper
procedures, where the employee was terminated based on conditions arising before his
appointment. 5 C.F.R. § 315.806; see also Mastriano, 714 F.2d at 1155. “The
probationary employee bears the burden throughout of establishing jurisdiction.” Stokes
v. Fed. Aviation Admin., 761 F.2d 682, 685 (Fed. Cir. 1985).
III.
For the reasons set forth below, we do not think Mr. Goss has shown that the
Board erred in dismissing his case for lack of jurisdiction. We reiterate that, in order to
04-3242 4
establish jurisdiction, Mr. Goss, as a probationary employee,1 had to make a non-
frivolous allegation that he was terminated based on partisan political considerations,
marital status discrimination, or conditions arising before his appointment. Accordingly,
Mr. Goss’ arguments relating to his allegedly inappropriate statements are of no
relevance to the issue of jurisdiction.
Mr. Goss alleges discrimination based upon marital status. We held in Stokes
that a probationary employee “must include in his appeal [to the Board] an allegation of
marital discrimination supported by factual assertions indicating that the allegation is not
a pro-forma pleading. A merely conclusory pleading is insufficient.” 761 F.2d at 686.
Mr. Goss contends that he met this standard because, although not by name, he
identified “my co-workers” as those who received favorable treatment. In addition, Mr.
Goss contends that he was not required to specifically identify the co-workers as
“single” or “married.” We are not persuaded by this argument. Assuming that Mr. Goss
was not required to “one-by-one” identify each of his co-workers by name and marital
status, the fact remains that Mr. Goss did not identify even one married co-worker who
received favorable treatment. In order to assert a non-frivolous claim an employee must
at a minimum make factual allegations that support the elements of the claim. See
Hayes, 390 F.3d at 1376 (“The [MSPB] can have jurisdiction if and only if the petitioner
makes non-frivolous allegations that satisfy the elements of the claim.”). Therefore, in a
case of alleged discrimination based on marital status, the employee must present
1
Mr. Goss does not challenge the Board’s determination that he could not
count his prior federal employment toward his probationary period, and that he thus was
a probationary employee.
04-3242 5
factual allegations to the effect that other employees were treated differently based on
their marital status. Mr. Goss has not done that in this case.2
In addition to asserting marital status discrimination, Mr. Goss, for the first time,
alleges that his termination was wrong because the agency temporarily moved him from
his position as an electronics worker to a clerk typist. Mr. Goss contends this action
deprived him of a fair evaluation as an electronics worker. This allegation is also not
sufficient to establish jurisdiction because Mr. Goss does not allege that the termination
was the result of conditions arising before his appointment, as required by 5 C.F.R.
§ 315.806. Finally, Mr. Goss alleges that several other personnel actions—such as
management’s failure to ask him about his allegedly inappropriate statements and
newly discovered memoranda written by agency personnel—were discriminatory in
nature. However, Mr. Goss has not alleged how these actions amounted to
discrimination against him on the basis of marital status or were motivated by partisan
political considerations.
In sum, because Mr. Goss failed to make a non-frivolous claim of termination
based on marital status discrimination, partisan political considerations, or conditions
arising before his appointment, we affirm.
Each party shall bear its own costs.
2
Mr. Goss also contends that Stokes is not applicable to this case. We do
not agree. Stokes squarely addresses the standard for establishing Board jurisdiction
over a claim based on marital status discrimination.
04-3242 6