Opinion

Zoelia Leacock v. Government Publishing Office

Court: Merit Systems Protection Board
Filed: Apr 27, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 40.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ZOELIA LEMANI LEACOCK, DOCKET NUMBER

Appellant, DC-315H-24-0632-I-1

GOVERNMENT PUBLISHING OFFICE, DATE: April 27, 2026

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Zoelia LeMani Leacock , Hyattsville, Maryland, pro se.

Kerry Miller and LaTonya D. Hayes , Washington, D.C., for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed her appeal for lack of jurisdiction because she was terminated during

her probationary period. 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 application of the law to the facts of the case; 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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 and AFFIRM the initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

The appellant was employed as a PG-07 Emergency Services Dispatcher

with the agency. Petition for Review (PFR) File, Tab 4 at 10. The agency

terminated her employment on May 6, 2024, during her probationary period,

based on “continued tardiness” and excessive use of her personal phone while on

duty. Id. On June 6, 2024, the appellant filed an appeal with the Board, arguing

that the agency failed to properly investigate the reasons stated for her

termination and that her termination was in retaliation for her participation in an

interview with representatives of the Inspector General. 2 Initial Appeal File

(IAF), Tab 1 at 9.

Because the appellant was terminated during her probationary period, the

administrative judge issued a June 11, 2024 order explaining the Board’s

jurisdictional standards regarding probationary terminations and ordering the

To the extent that the appellant is asserting that her termination was in reprisal for her

cooperating with or disclosing information to the Inspector General, such a claim is not

an independent source of Board jurisdiction; the Board may have jurisdiction over such

a claim as part of an individual right of action (IRA) appeal. See Simnitt v. Department

of Veterans Affairs, 113 M.S.P.R. 313, ¶ 7 (2010). For the Board to have jurisdiction

over an IRA appeal, an appellant must show that she exhausted her remedies with the

Office of Special Counsel (OSC). Id. The appellant does not indicate that she

exhausted her remedies with OSC. IAF, Tab 1 at 3. Upon exhausting with OSC, the

appellant may file an IRA appeal with the Board consistent with law and the Board’s

regulations.

appellant to file evidence and argument that she is an “employee” under

5 U.S.C. § 7511(a)(1)(A) or that her appeal is within the Board’s jurisdiction

under 5 C.F.R. § 315.806 (2024). 3 IAF, Tab 3. The appellant’s response was due

by June 18, 2024. Id. at 4. The appellant did not timely respond to the order. As

a result, without holding the appellant’s requested hearing, the administrative

judge issued an initial decision on June 20, 2024, dismissing the appeal for lack

of jurisdiction. IAF, Tab 5, Initial Decision (ID).

The appellant has filed a petition for review, arguing that she was unable to

upload her response to the June 11, 2024 order to e-Appeal until June 20, 2024,

due to technical issues. PFR File, Tab 1 at 4-5. She further argues that she

contacted the Board’s technical support but did not receive a response addressing

the problem until June 20, 2024, the same day the initial decision was issued. Id.

at 4; ID at 1. The agency has responded to the appellant’s petition for review.

PFR File, Tab 4. The appellant has filed a reply, challenging the merits of her

termination and asserting discrimination. PFR File, Tab 5 at 7-8. She has also

included the attachments regarding the merits that she had intended to upload to

e-Appeal in response to the administrative judge’s order. Id. at 9-37.

We are troubled by the circumstances surrounding the administrative

judge’s failure to consider the appellant’s response to the jurisdictional order.

Those circumstances include the brief period provided to the appellant to respond,

that the appellant’s efforts to timely respond to the order were frustrated by

difficulties with the e-Appeal system, and that the administrative judge issued the

initial decision on the first business day after the deadline to respond to the order

and on the same day the appellant received the requested technical assistance

from the Board. Furthermore, having received the requested assistance, the

appellant filed her response later that day. While the Board does not usually

Effective June 24, 2025—after the appellant’s termination—the Office of Personnel

Management rescinded subpart H of part 315 of Title 5 of the Code of Federal

Regulations pursuant to Executive Order No. 14284. Strengthening Probationary

Periods in the Federal Service, 90 Fed. Reg. 26727-01 (June 24, 2025).

consider evidence and argument raised after the issuance of the initial decision

unless the party shows that it is based on new and material evidence not

previously available despite the party’s due diligence, Clay v. Department of the

Army, 123 M.S.P.R. 245, ¶ 6 (2016), under the circumstances of this case and in

the interest of fairness, we will consider the appellant’s June 20, 2024 submission

in addition to the parties’ pleadings on review. 4

The appellant is not an “employee” under 5 U.S.C. § 7511(a)(1)(A).

To qualify as an “employee” with statutory Board appeal rights, the

appellant must show that she was not serving a probationary or trial period under

an initial appointment, or that she had completed 1 year of current continuous

service under other than a temporary appointment limited to 1 year or less.

5 U.S.C. § 7511(a)(1)(A); see McCormick v. Department of the Air Force,

307 F.3d 1339, 1341 (Fed. Cir. 2002). Here, the appellant indicated that she was

serving a probationary period when she was terminated. IAF, Tab 1 at 1, 8. She

has not presented any evidence of prior Federal service, and she indicated that her

total Federal service was less than 1 year. Id. at 8. Therefore, she does not meet

the definition of an “employee” under chapter 75 with Board appeal rights.

The appellant has not made a nonfrivolous allegation of jurisdiction under

5 C.F.R. § 315.806 (2024).

To show that she has a regulatory right of appeal with the Board as a

probationary employee, the appellant must make a nonfrivolous allegation that

Because, with consideration of the appellant’s June 20, 2024 submission, the record on

jurisdiction is fully developed, the Board may adjudicate the question of jurisdiction

and remand is not necessary. Social Security Administration v. Long, 113 M.S.P.R.

190, ¶ 25 (2010) (stating that, when the record is sufficiently developed and the Board

does not rely upon witness demeanor, the Board may adjudicate the case on the record

and need not remand it to the administrative judge), aff’d, 635 F.3d 526 (Fed. Cir.

2011), and overruled on other grounds by Department of Health and Human Services v.

Jarboe, 2023 MSPB 22, ¶ 9; see Rassenfoss v. Department of the Treasury,

121 M.S.P.R. 512, ¶ 11 (2014) (stating that, when an administrative judge fails to

adjudicate a claim that was properly raised below and the record is not sufficiently

developed, remand may be required).

she was serving in a competitive service position at the time of her termination

and (1) that the agency’s action was based on partisan political reasons or marital

status discrimination; or (2) and that she was terminated for preappointment

reasons and the agency did not follow required procedures set forth in 5 C.F.R.

§ 315.805 (2024). Blount v. Department of the Treasury, 109 M.S.P.R. 174, ¶ 5

(2008); see 5 C.F.R. §§ 315.805-.806 (2024). Here, the appellant has not argued

that she was terminated due to partisan political reasons, marital status

discrimination, or that her termination was due to preappointment reasons.

Rather, she argues that the agency’s determinations of various instances of

tardiness and excessive use of her personal phone while on duty were unfair

and/or inaccurate. PFR File, Tab 5 at 7. Thus, she has failed to make a

nonfrivolous allegation of jurisdiction as a probationary employee.

The appellant’s discrimination claims do not provide an independent basis for

Board jurisdiction.

The appellant argues that other employees removed essential workplace

supplies, which amounted to discrimination and a hostile work environment. Id.

at 7-8. It is well settled that claims of discrimination do not confer Board

jurisdiction absent an otherwise appealable action. Hurston v. Department of the

Army, 113 M.S.P.R. 34, ¶ 11 (2010); Wren v. Department of the Army, 2 M.S.P.R.

1, 2 (1980), aff’d, 681 F.2d 867 (D.C. Cir. 1982).

NOTICE OF APPEAL RIGHTS 5

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

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.

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.

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

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.

petition for 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 following