The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RHONDA T. SPROLES, DOCKET NUMBER
Appellant, DC-315H-14-0289-I-1
v.
DEPARTMENT OF THE ARMY, DATE: December 10, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Neil C. Bonney, Esquire, Virginia Beach, Virginia, for the appellant.
Claudia Lynch, Esquire, Newport News, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 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 when: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the 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. See 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, and based on the following
points and authorities, 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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant was appointed to a competitive-service GS-11 Social Worker
position on January 28, 2013. Initial Appeal File (IAF), Tab 4 at 11. This
appointment was subject to a 1-year probationary period. Id. At the time of her
appointment, the appellant did not have any prior creditable federal service. Id.
On December 11, 2013, the agency terminated the appellant for inadequate
“conduct and professional manner.” Id. at 6. The appellant filed a Board appeal
contesting her termination. IAF, Tab 1 at 4.
¶3 The administrative judge issued an order, which advised the appellant on
proving jurisdiction over her appeal. IAF, Tab 3 at 2-4. After the parties
responded, the administrative judge, without holding a hearing, issued an initial
decision dismissing the appeal for lack of jurisdiction. IAF, Tab 4, Tab 6, Tab
10, Initial Decision (ID) at 1, 6-9. In pertinent part, the administrative judge
found that the appellant’s allegation that she was terminated, at least in part,
because of her off-duty employment did not constitute a nonfrivolous allegation
that she was terminated for conditions arising before her federal appointment,
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and thus 5 C.F.R. § 315.806(c) was not a source of jurisdiction. ID at 7-9; IAF,
Tab 6. The appellant has submitted a timely petition for review. Petition for
Review (PFR) File, Tab 1. The agency has responded to the petition for review.
PFR File, Tab 3.
The appellant has not made a nonfrivolous allegation that she was terminated for
a pre-appointment reason.
¶4 The administrative judge found that the Board lacks jurisdiction
under 5 C.F.R. §§ 315.805, 315.806(c) because the appellant did not raise a
nonfrivolous allegation that she was terminated for a pre-appointment reason. 2
ID at 7-9. We agree. On petition for review, the appellant’s primary
jurisdictional argument is identical to the argument she raised below: she alleges
that her termination was at least partially based on her outside contract work,
which she argues is a pre-appointment reason. 3 IAF, Tab 6 at 4; PFR File, Tab 1
at 5-7. She argues that her outside contract work was a pre-appointment
condition because it was approved by the agency before she was appointed. IAF,
Tab 6 at 4; PFR File, Tab 1 at 5.
¶5 An appellant is entitled to a jurisdictional hearing only if she makes a
nonfrivolous allegation of Board jurisdiction, i.e., an allegation of fact which, if
proven, could establish a prima facie case that the Board has jurisdiction over
the matter at issue. Baldwin v. Department of Veterans Affairs, 109 M.S.P.R.
392, ¶ 11 (2008). Because the appellant did not make a nonfrivolous allegation
of Board jurisdiction, we agree with the administrative judge’s denial of her
request for a hearing. Under 5 C.F.R. § 315.806(c), a probationary employee
2
The administrative judge also found that the appellant lacked a statutory right of
appeal under chapter 75 of Title 5 because she was a probationary employee with less
than 1 year of federal civilian service. ID at 6. The appellant does not challenge this
finding on review, and we find no reason to disturb the administrative judge’s finding.
3
The appellant has not argued that her termination was based upon either partisan
politics or marital status, and thus 5 C.F.R. § 315.806(b) is not a source of jurisdiction
here. See Blount v. Department of the Treasury, 109 M.S.P.R. 174, ¶ 5 (2008).
4
may appeal to the Board on the grounds that the agency terminated her
appointment for reasons arising pre-appointment without complying with the
procedural requirements of 5 C.F.R. § 315.805. Blount, 109 M.S.P.R. 174, ¶ 5.
¶6 Even if the appellant’s off-duty employment was a consideration in her
termination, it would not constitute a pre-appointment reason for purposes
of 5 C.F.R. §§ 315.805, 315.806. The appellant alleges that the agency informed
her that she was terminated because of her off-duty employment, and she alleges
that the agency erroneously indicated that she did not properly report her off-duty
employment. PFR File, Tab 1 at 6. Further, the appellant alleges that the agency
was unaware that she secured approval for her off-duty employment from her
interviewer prior to her appointment. Id. However, although the appellant was
involved in the contract work before she was appointed, her involvement in that
position after her appointment constituted post-appointment activity.
¶7 The appellant’s arguments do not suggest that the agency terminated her
because of her involvement in the outside contract work before she was
appointed. Therefore, the appellant has not raised a nonfrivolous allegation that
she was terminated for a pre-appointment reason. It is necessary to distinguish
between a pre-existing condition, which in the instant case is the appellant’s
outside contract work, and the effect that condition has on her performance or
conduct during her probationary period. See Rhone v. Department of the
Treasury, 66 M.S.P.R. 257, 259 (1995). To the extent that the appellant has
alleged that her off-duty employment was a consideration for her termination, it
would be because of its effect on her post-appointment conduct and professional
manner; thus it would not constitute a pre-appointment reason. The Board has
found in similar cases that a pre-existing condition affecting post-appointment
deficiencies does not constitute a pre-appointment condition. See Walker v.
Department of the Army, 119 M.S.P.R. 391, ¶ 14 (2013) (pre-appointment reasons
do not include post-appointment performance or conduct deficiencies); cf. Rivera
v. Department of the Navy, 114 M.S.P.R. 52, ¶ 8 (2010) (even assuming that the
5
appellant’s failure to qualify for a credit card was attributable to his
pre-appointment credit history, his termination for failure to secure approval for a
government credit card nonetheless would constitute a post-appointment reason
for termination); Holloman v. Department of the Navy, 31 M.S.P.R. 107 (1986)
(attendance problem caused by pre-existing medical condition is a
post-appointment reason for termination). The appellant’s claim that the agency
erroneously did not account for her allegedly having reported and obtained
approval for her outside work prior to her appointment, PFR File, Tab 1 at 6, is
not the equivalent of an allegation that the agency terminated her based on
conditions arising pre-appointment. Therefore, the appellant has not made a
nonfrivolous allegation that the agency had to comply with the procedures set
forth in section 315.805, and 5 C.F.R. § 315.806(c) is not a source of jurisdiction.
¶8 The appellant has submitted for the first time on review character references
from her supervisors and coworkers, which were completed in December 2013.
PFR File, Tab 1 at 9-12. The Board normally will not consider evidence or legal
argument raised for the first time in a petition for review absent a showing that it
was not previously available despite the party’s due diligence. Davis v.
Department of Commerce, 120 M.S.P.R. 34, ¶ 16 (2013); Banks v. Department of
the Air Force, 4 M.S.P.R. 268, 271 (1980); 5 C.F.R. § 1201.115(d). The
appellant does not offer any explanation for submitting character references for
the first time on review, and thus we find this evidence is not a basis for
disturbing the initial decision. Further, the Board will not grant a petition for
review based on new evidence absent a showing that it is of sufficient weight to
warrant an outcome different from that of the initial decision. Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980). We find that the new evidence is
not material because it does not establish a nonfrivolous allegation that the
appellant was terminated for a pre-appointment reason.
¶9 For the first time on review, the appellant alleges that the person who
interviewed and hired her had filed an action against the agency and that the
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appellant “was seen as her ally.” PFR File, Tab 1 at 5. Further, the appellant
claims that, “[c]onsequently, the agency went after [her], manufacturing false
claims and terminating her employment during her probationary period.” Id. The
appellant also stated below that her termination “was taken in retaliation for [her]
protected activities,” but she did not further elaborate on this general assertion.
IAF, Tab 1 at 4. The appellant has been represented by experienced counsel and
has not argued that these allegations provide an independent basis for
jurisdiction, and we discern no basis for so finding. See IAF, Tab 6 at 4, Tab 8 at
5; PFR File, Tab 1 at 5-7. We note that the appellant admitted that she has not
filed a complaint with the Office of Special Counsel, IAF Tab 1 at 5, which
would be a prerequisite to Board jurisdiction over an individual right of action
appeal, 5 U.S.C. §§ 1214(a)(3), 1221(a); Yunus v. Department of Veterans
Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
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If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.