Opinion

Kelly Oliver-Green v. Social Security Administration

Court: Merit Systems Protection Board
Filed: Nov 5, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 32.8%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KELLY LATRICE OLIVER-GREEN, DOCKET NUMBER

Appellant, PH-315H-21-0007-I-1

SOCIAL SECURITY DATE: November 5, 2024

ADMINISTRATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Kelly Latrice Oliver-Green , Baltimore, Maryland, pro se.

Lauren Donner Chait , Esquire, Philadelphia, Pennsylvania, 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

based on an erroneous interpretation of statute or regulation or the erroneous

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. We MODIFY the initial decision to expressly find that the appellant

did not make a nonfrivolous allegation that she was an “employee” within the

meaning of 5 U.S.C. § 7511(a)(1)(A). Except as expressly modified herein, we

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

BACKGROUND

The appellant began working for the agency as a Customer Service

Representative effective March 29, 2020. Initial Appeal File (IAF), Tab 1 at 7.

Her appointment was subject to a 1-year probationary period. Id. Two days after

beginning her employment, the appellant executed a Declaration for Federal

Employment Form 306 (OF-306), stating she had not been fired from a job during

the last 5 years. IAF, Tab 1 at 7, Tab 6 at 24-25. She also completed a

Questionnaire for Public Trust Positions (SF-85P), certifying that she had not

been fired from a job in the last 7 years. IAF, Tab 1 at 7, Tab 6 at 27. On

September 28, 2020, 7 months into her employment, the agency notified the

appellant that she was being terminated for post-appointment reasons, effective

immediately, because she failed to disclose on her OF-306 and SF-85P that she

had been terminated from a position approximately 5 months before she

commenced employment with the agency. IAF, Tab 1 at 7-10.

The appellant appealed her probationary termination to the Board. IAF,

Tab 1. The administrative judge issued an acknowledgment order advising the

appellant of her jurisdictional burden. IAF, Tab 2 at 1 -5. The appellant did not

file a response. The agency requested that the appeal be dismissed for lack of

jurisdiction. IAF, Tab 6. The administrative judge subsequently issued an initial

decision dismissing the appeal for lack of jurisdiction. IAF, Tab 7, Initial

Decision (ID). In pertinent part, the administrative judge explicitly found that the

Board lacked jurisdiction over the appeal because the appellant failed to make a

nonfrivolous allegation that the termination was due to marital status

discrimination or partisan political reasons. ID at 3-5. She also found that the

termination did not involve pre-appointment conduct. ID at 4. The

administrative judge noted that, in order to qualify as an “employee” with Board

appeal rights pursuant to 5 U.S.C. chapter 75, an individual in the competitive

service must show that she either is not serving a probationary period under an

initial appointment or has completed 1 year of current continuous service under

an appointment other than a temporary one limited to 1 year or less. ID at 2-3.

The administrative judge acknowledged the appellant’s statement that she only

had 7 months of Federal service, and she appeared to implicitly find that the

appellant did not make a nonfrivolous allegation of Board jurisdiction in this

regard. ID at 2-5.

The appellant filed a petition for review, and the agency has filed a

response. Petition for Review (PFR) File, Tabs 1, 3. On petition for review, the

appellant attaches three emails. PFR File, Tab 1 at 4-6.

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). We affirm the administrative

judge’s explicit finding that the Board lacked jurisdiction over the appeal because

the appellant failed to make a nonfrivolous allegation that the termination was

due to marital status discrimination or was based on partisan political reasons or

pre-appointment conduct.

We modify the initial decision to supplement the administrative judge’s

analysis and explicitly find that the appellant did not make a nonfrivolous

allegation that she was “employee” with appeal rights under 5 U.S.C. chapter 75.

An individual in the competitive service must show that she is either not serving a

probationary period under an initial appointment or has completed 1 year of

current continuous service under an appointment other than a temporary one

limited to 1 year or less. 5 U.S.C. § 7511(a)(1)(A); Hurston v. Department of the

Army, 113 M.S.P.R. 34, ¶ 9 (2010). In her initial appeal, the appellant admits that

she only had 7 months of Federal service at the time of her termination, she

answered “yes” to the question of whether she was serving a “probationary, trial,

or initial service period” at the time of the action, and she checked the box

indicating that she was challenging a “[t]ermination during probationary or initial

service period.” IAF, Tab 1 at 1, 3. We conclude that the appellant has not made

a nonfrivolous allegation that she has satisfied either prong of 5 U.S.C. § 7511(a)

(1)(A).

On review, the appellant argues that she was “falsely terminated” and her

“initial appeal statement was not taken into consideration.” PFR File, Tab 1 at 3.

We have considered the statements in her initial appeal. 2 However, the merits of

the underlying termination are not relevant to the question of whether the Board

has jurisdiction in this matter.

Regarding the three emails, the Board generally will not consider evidence

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

Because none of the underlying facts are in dispute and the appellant has not made

nonfrivolous allegations of jurisdiction, it was not error for the administrative judge to

cite to the agency’s submissions as background in the initial decision. Cf. Ferdon v.

U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994) (noting that the administrative judge

may not weigh evidence and resolve conflicting assertions of the parties based upon the

agency’s evidence).

unavailable before the record was closed before the administrative judge despite

the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211,

213-14 (1980). The appellant has not asserted that the emails were unavailable

prior to the close of the record before the administrative judge. PFR File, Tab 1

at 3. Further, the documents are unreadable. Id. at 4-6. On June 9, 2021, the

Board issued an order instructing the appellant to resubmit the documents in a

readable format within 10 days of issuance, PFR File, Tab 4; however, the

appellant did not respond or otherwise resubmit the emails. Therefore, the Board

declines to consider the emails attached to the appellant’s petition for review.

Based on the foregoing, we deny the petition for review and affirm the

initial decision as expressly modified.

NOTICE OF APPEAL RIGHTS 3

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.

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.

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. 4 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).

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.

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