The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KOURTNEY HOLLINGSWORTH, DOCKET NUMBER
Appellant, DC-315H-21-0101-I-1
v.
DEPARTMENT OF HOUSING AND DATE: November 26, 2024
URBAN DEVELOPMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Amos Jones , Esquire, Washington, D.C., for the appellant.
Sean Kellem , Esquire, and Sonya M. Kaloyanides , Esquire,
Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her probationary termination appeal for lack of jurisdiction without
holding a hearing. For the reasons discussed below, we GRANT the appellant’s
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
petition for review, VACATE the initial decision, and REMAND the case to the
regional office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 Effective June 22, 2020, the agency appointed the appellant to the
competitive service position of GS-13 Equal Opportunity Specialist, subject to a
1-year probationary period. Initial Appeal File (IAF), Tab 7 at 32. On
October 22, 2020, while the appellant was still serving in her probationary period,
the agency notified her that she would be terminated from her position, effective
close of business, October 23, 2020, based on her failure to demonstrate the
qualifications necessary for her position. IAF, Tab 1 at 8, Tab 7 at 45-47, 49.
The appellant timely appealed this termination to the Board. IAF, Tab 1. On her
appeal form, she acknowledged that she was serving a probationary period at the
time of her termination. Id. at 1. She further alleged that the agency terminated
her for partisan political reasons, failed to comply with the requirements of
5 C.F.R. § 315.805, and retaliated against her for equal employment opportunity
(EEO) and whistleblowing activity. Id. at 6.
¶3 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction on finding
that she failed to nonfrivolously allege Board jurisdiction. IAF, Tab 1 at 2,
Tab 8, Initial Decision (ID) at 1, 9-10. Specifically, he found that she was not an
employee with appeal rights under 5 U.S.C. chapter 75 and she failed to make a
nonfrivolous allegation that the termination was based on marital status
discrimination, partisan political reasons, or conditions arising before her
appointment. ID at 5-9. Without an otherwise appealable action, the
administrative judge found that the Board also lacked jurisdiction over the
appellant’s other claims. ID at 9-10.
¶4 The appellant has filed a timely petition for review, to which the agency has
responded. Petition for Review (PFR) File, Tabs 3, 5.
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ANALYSIS
¶5 An individual in the competitive service who, like the appellant, has not
completed her probationary period has no statutory right of appeal to the Board.
Starkey v. Department of Housing and Urban Development , 2024 MSPB 6, ¶ 16;
Marynowski v. Department of the Navy, 118 M.S.P.R. 321, ¶ 4 (2012); see
5 U.S.C. § 7511(a)(1)(A). However, under certain limited circumstances, there
may be a regulatory right of appeal. As relevant here, an individual serving in his
probationary period “may appeal . . . a termination not required by statute which
he or she alleges was based on partisan political reasons or marital status.”
5 C.F.R. § 315.806. To be entitled to a hearing in such an appeal, an appellant
must make a nonfrivolous allegation of jurisdiction, that is an allegation of fact
that, if proven, would establish that his termination was based on partisan
political reasons. Starkey, 2024 MSPB 6, ¶ 16 n.4; Green-Brown v. Department
of Defense, 118 M.S.P.R. 327, ¶ 5 (2012). The appellant’s allegations must be
more than mere conjecture, and the appellant must provide supporting facts to
show that the allegation is not merely a pro forma pleading. Smirne v.
Department of the Army, 115 M.S.P.R. 51, ¶ 8 (2010). In determining whether
the appellant has made a nonfrivolous allegation of jurisdiction, the Board may
consider the agency’s documentary submissions; however, to the extent that the
agency’s evidence constitutes mere factual contradiction of the appellant’s
otherwise adequate prima facie showing of jurisdiction, the administrative judge
may not weigh the evidence and resolve conflicting assertions of the parties, and
the agency’s evidence may not be dispositive. Id.; Ferdon v. U.S. Postal Service,
60 M.S.P.R. 325, 329 (1994).
¶6 Discrimination based on “partisan political reasons” under 5 C.F.R.
§ 315.806(b) means discrimination based on affiliation with any political party or
candidate. Mastriano v. Federal Aviation Administration, 714 F.2d 1152,
1155-56 (Fed. Cir. 1983); Marynowski, 118 M.S.P.R. 321, ¶ 7. In adjudicating
appeals under 5 C.F.R. § 315.806, the Board and the U.S. Court of Appeals for
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the Federal Circuit have adapted the analytical framework from Title VII Federal
sector discrimination law, with the caveat that proof of Title VII discrimination
requires motivating-factor causation while discrimination under section 315.806
requires but-for causation. Starkey, ¶¶ 17-18. Thus, one of the ways an appellant
can prove discrimination under section 315.806 is by using the burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04
(1973). The first step of that framework is for the appellant to establish a prima
facie case by showing that: (1) she is a member of a protected class; (2) she
suffered an adverse employment action; and (3) the unfavorable action gives rise
to an inference of discrimination. Wilson v. Small Business Administration,
2024 MSPB 3, ¶ 16. If the appellant makes out a prima facie case, then the
burden shifts to the agency to provide a nondiscriminatory explanation for the
action. Id., ¶ 17. If the agency fails to give a nondiscriminatory explanation or
the appellant proves that the agency’s explanation was pretext, then the appellant
has proven that discrimination was a but-for cause of the action.
¶7 We find that the appellant has made nonfrivolous allegations that could
support a finding that her termination was based on partisan political reasons
under a pretext theory. Specifically, the appellant’s allegation that, shortly before
her termination, a supervisor stated that her failure to support a particular
candidate in the presidential election would harm her professionally could give
rise to an inference that her termination was based on partisan political reasons.
Although the agency has provided a nondiscriminatory reason for her termination,
the appellant challenges the agency’s assertion that the appellant’s performance
was poor; specifically, she claims that the agency never informed her of
performance deficiencies prior to her termination. If true, the appellant’s claims
could support a finding that the agency’s stated reason for the termination was
pretext.
¶8 In sum, the appellant has made allegations that partisan political
discrimination played a role in her termination, and those allegations, if proven,
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would establish Board jurisdiction. Accordingly, we remand this matter to the
administrative judge. The administrative judge shall develop the record, conduct
a hearing, and issue a new initial decision that identifies all material issues of fact
and law, summarizes the evidence, resolves issues of credibility, and includes the
administrative judge’s conclusions of law and his legal reasoning, as well as the
authorities on which that reasoning rests. 2 See Spithaler v. Office of Personnel
Management, 1 M.S.P.R. 587, 589 (1980).
ORDER
¶9 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
2
The administrative judge shall afford the parties the opportunity to engage in
discovery regarding the issues relevant to this appeal. 5 C.F.R. §§ 1201.71-1201.75.