Opinion

Laura Oyedokun v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jul 18, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LAURA CLAUDETTE OYEDOKUN, DOCKET NUMBER

Appellant, PH-0752-19-0381-I-1

DEPARTMENT OF VETERANS DATE: July 18, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Laura Claudette Oyedokun , Baltimore, Maryland, pro se.

Melissa Mack , Baltimore, Maryland, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

initial decision contains erroneous findings of material fact; the initial decision is

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 clarify the proper standard for a

nonpreference-eligible individual in the excepted service, we AFFIRM the initial

decision.

BACKGROUND

On January 22, 2019, the agency appointed the appellant, a nonpreference

eligible, to the excepted service position of General Schedule-07 Dental

Assistant. Initial Appeal File (IAF), Tab 6 at 8-9. The appointment was subject

to a 1-year probationary period. Id. Effective July 26, 2019, the appellant was

terminated during her probationary period based on the charges of unacceptable

conduct and failure to follow infection control procedures. IAF, Tab 1 at 8-11.

The appellant appealed her termination to the Board. IAF, Tab 1. She did

not request a hearing. Id. at 2. The administrative judge informed the appellant

that the Board may lack jurisdiction over her termination appeal, set forth the

jurisdictional standard applicable to individuals in the competitive service, and

ordered her to file evidence or argument on the jurisdictional issue. IAF, Tab 2.

The agency moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 6.

The appellant did not respond to the jurisdictional order or the agency’s motion.

The administrative judge issued an initial decision that dismissed the

appeal for lack of jurisdiction. IAF, Tab 7, Initial Decision (ID) at 1. He noted

that the acknowledgment order provided the appellant with incorrect

jurisdictional notice. ID at 3. He explained that, to be an “employee” in the

excepted service with Board appeal rights, the individual must be a preference

eligible in the excepted service who has completed 1 year of current continuous

service in the same or similar positions; if not a preference eligible, an individual

who is not serving a probationary or trial period under an initial appointment

pending conversion to the competitive service or who 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. 2 ID at 2-3.

The administrative judge stated that, as an “excepted probationer,” the appellant

was required to prove that she had completed 1 year of current continuous service

in the same or similar position in an Executive agency under other than a

temporary appointment limited to 1 year or less, and she did not satisfy this

burden. Id. He considered whether her prior service met the requirements for

tacking and found that it did not. ID at 3-4. The administrative judge therefore

concluded that the appellant did not make a nonfrivolous allegation that she was

an “employee” under 5 U.S.C. § 7511. ID at 4.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. She asserts that she has years of Federal service in “comparable

organization(s)” such as Walter Reed Army Medical Center and Bethesda Naval

Hospital. Id. at 5. She indicates that she was employed by the Department of

Defense (DOD) on January 31, 2011, and she transitioned to the agency on

January 22, 2019. Id. at 7. She also asserts that she was “terminated as a

permanent tenured employee while on [Family and Medical Leave Act (FMLA)]

leave” after a car crash on her way home from work. Id. at 5-6. In support of her

assertions, she provides, among other things, a Standard Form (SF)-50 showing a

This is a correct statement of the law. 5 U.S.C. §§ 7511(a)(1)(B), (a)(1)(C).

general adjustment on November 7, 2018, and an FMLA Certification of Health

Care Provider for Employee’s Serious Health Condition. 3 Id. at 12, 14. The

agency has responded in opposition to her petition for review. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant has not made a nonfrivolous allegation that she is an employee

under 5 U.S.C. § 7511(a)(1)(C).

Only an “employee,” as defined under 5 U.S.C. chapter 75, can appeal an

adverse action to the Board. Winns v. U.S. Postal Service, 124 M.S.P.R. 113, ¶ 8

(2017), aff’d sub. nom. Williams v. Merit Systems Protection Board , 892 F.3d

1156 (Fed. Cir. 2018); see 5 U.S.C. §§ 7511(a)(1), 7513(d). In analyzing whether

the appellant nonfrivolously alleged that she was an “employee” under 5 U.S.C.

§ 7511(a)(1), the administrative judge correctly identified the different standards

for a preference eligible and a nonpreference eligible in the excepted service, but

he did not make a finding as to her status. ID at 2-3. However, he concluded

that, as an individual in the excepted service, the appellant was required to

establish that she had completed 1 year of current continuous service in the same

or similar positions in an Executive agency under other than a temporary

appointment limited to 1 year or less, and she did not do so. ID at 3. The

administrative judge’s analysis appears to conflate the language in 5 U.S.C.

§ 7511(a)(1)(B) for a preference-eligible individual with 5 U.S.C. § 7511(a)(1)

The appellant did not make arguments implicating the FMLA or provide such evidence

below. Generally, the Board 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. Banks v. Department of the Air

Force, 4 M.S.P.R. 268, 271 (1980). In addition, the Board will not consider evidence

submitted for the first time with the petition for review absent a showing that it was

unavailable before the record was closed despite the party’s due diligence. Avansino v.

U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). However, the appellant’s arguments

and evidence may relate to the issue of jurisdiction, and the issue of the Board’s

jurisdiction is always before the Board and may be raised at any time. Ney v.

Department of Commerce, 115 M.S.P.R. 204, ¶ 7 (2010). Thus, we considered the

appellant’s submissions on review. Because the agency did not have an opportunity to

respond to such arguments and evidence below, we also considered the agency’s

response and documentation submitted on review.

allege, nor does the record show, that she is a preference eligible, it was incorrect

for the administrative judge to rely in any way on the standard in 5 U.S.C.

§ 7511(a)(1)(B). Nonetheless, because the administrative judge accurately

identified in the initial decision how the appellant can meet her jurisdictional

burden under 5 U.S.C. § 7511(a)(1)(C), he has essentially cured his error.

Easterling v. U.S. Postal Service, 110 M.S.P.R. 41, ¶ 11 (2008); Panter v.

Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).

As a nonpreference eligible in the excepted service, the appellant

may appeal her termination to the Board if she qualifies as an “employee”

under 5 U.S.C. § 7511(a)(1)(C). Martinez v. Department of Homeland

Security, 118 M.S.P.R. 154, ¶ 5 (2012). An “employee” under 5 U.S.C. § 7511(a)

(1)(C)(i)-(ii) is defined as an individual in the excepted service (other than a

preference eligible) “who is not serving a probationary or trial period under an

initial appointment pending conversion to the competitive service” or “who 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.” Martinez, 118 M.S.P.R. 154, ¶ 5. The Board has jurisdiction if

either section 7511(a)(1)(C)(i) or (ii) is satisfied. Id.

The appellant does not allege, 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 and 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). Therefore, the only question is whether 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. Current

continuous service or employment means a period of employment or service that

immediately precedes the action at issue without a break in service of a workday.

Maibaum v. Department of Veterans Affairs , 116 M.S.P.R. 234, ¶ 14 (2011);

Beets v. Department of Homeland Security, 98 M.S.P.R. 451, ¶ 7 (2005);

5 C.F.R. § 752.402(b).

The administrative judge considered whether the appellant’s prior service

met the requirements for tacking under subsection 7511(a)(1)(C)(ii). ID at 4. He

noted that he provided the appellant with an opportunity to submit evidence on

this issue, which she failed to do. Id. The appellant asserts on review that she

entered Federal service with DOD on January 31, 2011, and transitioned to the

agency on January 22, 2019. PFR File, Tab 1 at 7. With its response, the agency

includes SF-50s showing that the appellant was employed as a DOD Dental

Assistant from January 31, 2011, to March 2, 2018, when she resigned from her

position, and that she was employed as an agency Dental Assistant from

January 22, 2019, to July 26, 2019, when she was terminated from her position. 4

PFR File, Tab 3 at 9, 11-13, 18-20. Because the appellant does not allege, nor

does the record show, that she completed 2 years of service in an agency position,

she can establish jurisdiction under subsection 7511(a)(1)(C)(ii) only if her DOD

prior service can be counted toward the current continuous service requirement.

The appellant’s appointment as an agency Dental Assistant was preceded by a

break in service of more than a workday. PFR File, Tab 3 at 18-19. Therefore,

the appellant has not made a nonfrivolous allegation that she satisfied the

requirements of 5 U.S.C. § 7511(a)(1)(C)(ii).

For the reasons stated above, we find that the appellant has not made a

nonfrivolous allegation that she was an “employee” under 5 U.S.C. § 7511(a)(1)

(C)(i) or (ii).

The appellant’s remaining arguments are immaterial to the jurisdictional issue.

The appellant asserts that the agency violated 29 C.F.R. § 825.220, which

prohibits interference with an employee’s rights under the FMLA. PFR File,

We have considered this evidence because it is largely consistent with the appellant’s

allegations.

Tab 1 at 5. The Board will adjudicate an FMLA claim only in connection with an

otherwise appealable action that is related to leave. Lua v. U.S. Postal Service,

87 M.S.P.R. 647, ¶ 12 (2001). Such circumstances are not present here. We find

that the appellant’s receipt of FMLA leave has no bearing on whether she has

made a nonfrivolous allegation of jurisdiction over this matter.

The appellant also raises arguments that pertain to the merits of the

termination decision rather than the Board’s jurisdiction over the appeal.

PFR File, Tab 1. Any such arguments provide no basis to disturb the

initial decision. See Yakupzack v. Department of Agriculture, 10 M.S.P.R. 180,

182 (1982) (stating that the Board’s review of probationary terminations

does not include a review of the merits of the termination action);

Kellum v. Veterans Administration, 2 M.S.P.R. 65, 67 (1980) (finding that the

sufficiency and propriety of the agency’s misconduct allegations concern

substantive issues that are immaterial to the appeal, unless the Board has

jurisdiction over the probationary termination).

Thus, we affirm the initial decision as modified herein.

NOTICE OF APPEAL RIGHTS 5

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

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.

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).

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

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

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. 6 The court of appeals must receive your petition for

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.

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