The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICIA A. KALAITZIS, DOCKET NUMBER
Appellant, AT-315H-14-0877-I-1
v.
DEPARTMENT OF THE NAVY, DATE: February 20, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Patricia A. Kalaitzis, Jacksonville, Florida, pro se.
Catherine A. D’Andrea, Esquire, Jacksonville, Florida, 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
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
erroneous 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 agency appointed the appellant to the position of Library Technician on
January 13, 2014. Initial Appeal File (IAF), Tab 5 at 8. This position was in the
competitive service and subject to a 1-year probationary period. Id. The
appellant was terminated during her probationary period, effective July 26, 2014,
for inattention to duty in the performance of work. Id. at 23, 27. The appellant
filed an appeal alleging that her termination was motivated by race
discrimination. See IAF, Tab 1 at 3, 5, 9-10.
¶3 The administrative judge issued a jurisdictional order to the parties, which
advised the appellant of her burden of proof regarding jurisdiction over a
probationary termination, and instructed her to respond. IAF, Tab 3 at 2-4. The
agency responded to the order, IAF, Tab 5, but the appellant did not. After the
record closed, the administrative judge issued an initial decision dismissing the
3
appeal for lack of jurisdiction without holding the requested hearing. 2 IAF,
Tab 6, Initial Decision (ID) at 1, 3. The appellant has submitted a timely petition
for review. Petition for Review (PFR) File, Tabs 1-2. The agency has responded
to the petition for review. PFR File, Tab 4.
The administrative judge correctly dismissed the appeal for lack of jurisdiction.
¶4 On petition for review, the appellant alleges, as she did below, that she was
harassed and discriminated against based on her race. PFR File, Tab 2 at 3-4;
IAF, Tab 1 at 5, 9-10. She also challenges the merits of her termination and
alleges poor management practices. See PFR File, Tab 1 at 1, 3-4. She indicates
that she was told by the agency that she was terminated because she was “not a
[f]it.” Id. at 1. The appellant argues that “the reasons given in [her] termination
letter were not accurate and were not sufficient for grounds for termination.”
PFR File, Tab 2 at 1. The administrative judge found that the Board lacks
jurisdiction over the appellant’s probationary termination appeal. ID at 1, 3.
The administrative judge also found that, even if the appellant’s termination was
based on race discrimination, “without jurisdiction, the Board does not have the
authority to review the merits of the appellant’s discrimination claim.” ID at 3.
We agree.
¶5 Probationary employees in the competitive service have a limited right to
appeal a termination to the Board under 5 C.F.R. § 315.806. Walker v.
Department of the Army, 119 M.S.P.R. 391, ¶ 5 (2013), aff’d sub nom. Walker v.
Merit Systems Protection Board, No. 2014-3155, 2014 WL 6890662 (Fed. Cir.
Dec. 9, 2014). 5 C.F.R. § 315.806(d) provides for jurisdiction over complaints
of discrimination based upon race, color, religion, sex, national origin, age, and
2
An appellant is entitled to a jurisdictional hearing only if she makes a nonfrivolous
allegation of Board jurisdiction. Burgess v. Merit Systems Protection Board, 758 F.2d
641, 642-43 (Fed. Cir. 1985). The administrative judge did not hold a hearing because
she found that the appellant did not make a nonfrivolous allegation of Board
jurisdiction. See ID at 1.
4
disability, in connection with a probationary termination, but only if “such
discrimination is raised in addition to one of the issues stated in paragraph (b) or
(c).” Jafri v. Department of the Treasury, 68 M.S.P.R. 216, 220 (1995)
(quoting 5 C.F.R. § 315.806(d)), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (Table).
The Board’s jurisdiction over probationary termination appeals under paragraphs
(b) and (c) is limited to situations in which: (1) the employee was discriminated
against based on her marital status; (2) the agency action was based on partisan
political reasons; or (3) the agency action was based (in whole or part) on
pre-appointment reasons, and the agency did not follow the procedures
of 5 C.F.R. § 315.805. 3 Walker, 119 M.S.P.R. 391, ¶ 5.
¶6 The appellant acknowledged that she was a probationary employee at the
time of her termination. IAF, Tab 1 at 1, 3. In addition, she did not allege below
that her termination was related to marital status discrimination, partisan
political reasons, or pre-appointment reasons. See id. at 5, 9-10. Therefore, the
Board lacks jurisdiction over her termination. See Walker, 119 M.S.P.R. 391,
¶ 5.
¶7 On petition for review, the appellant alleges that she was advised of her
termination on the same day it took place, which was July 25, 2014. 4 PFR File,
3
The appellant also raises for the first time on review an allegation of age
discrimination by the agency. PFR File, Tab 1 at 2. However, prohib ited personnel
practices under 5 U.S.C. § 2302(b) are not an independent source of Board jurisdiction.
See Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867
(D.C. Cir. 1982).
4
The administrative judge noted that the appellant was term inated by letter dated July
14, 2014. ID at 2. The appellant argues on review that the administrative judge
identified the incorrect letter, and thus erred by stating that she was advised of her
termination on July 14, 2014. PFR File, Tab 1 at 1. The appellant is correct that the
agency’s termination letter was dated July 24, 2014. IAF, Tab 5 at 23. However, we
find that this minor error does not warrant reversal of the initial decision. See Panter v.
Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is
not prejudicial to a party’s substantive rights provides no basis for reversal of an initial
decision).
5
Tab 2 at 1-2. She argues that she was entitled to notice of the proposed
termination and an opportunity to respond pursuant to 5 C.F.R. §§ 315.805 and
315.806. Id. at 1. However, the Board cannot review whether the agency failed
to follow the procedural requirements of 5 C.F.R. § 315.805 because the
appellant did not allege that she was terminated for pre-appointment reasons in
violation of 5 C.F.R. § 315.806(c). See PFR File, Tabs 1-2.
¶8 The appellant raises a claim under the Veterans Employment Opportunities
Act of 1998 (VEOA) for the first time on review. PFR File, Tab 1 at 4. Citing
to VEOA, she alleges that she was discriminated against based on her
service-connected medical condition. Id. To establish jurisdiction over a
veterans’ preference appeal under VEOA, the appellant must: (1) show that she
exhausted her remedy with the Department of Labor; and (2) make nonfrivolous
allegations that she: (a) is a preference eligible within the meaning of the
VEOA, (b) the action at issue took place on or after October 30, 1998, and (c)
the agency violated a statute or regulation relating to veterans’
preference. 5 U.S.C. § 3330a; Elliott v. Department of the Air Force, 102
M.S.P.R. 364, ¶ 6 (2006). In the instant case, based on the limited evidence
presented on this issue, we find that the appellant has not met her burden of
establishing jurisdiction over her appeal under VEOA. 5
¶9 The appellant also presents for the first time on review documentation of
counseling she received prior to her termination, dated June 17, 2014. PFR File,
Tab 1 at 6. 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). In the instant case, the documentation submitted by the
appellant is not of sufficient weight to warrant an outcome different from that of
the initial decision because it does not show that her termination was related to
5
If the appellant believes that the Board has jurisdiction over her termination under
VEOA, she may file a new appeal with the regional office.
6
marital status discrimination, partisan political reasons, or pre-appointment
reasons. See Rogers v. Internal Revenue Service, 15 M.S.P.R. 350, 352-53
(1983) (finding that the appellant submitted new evidence but it was not material
to the issue of discrimination on partisan political grounds, and thus it presented
no grounds for granting the petition for review).
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).
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.
7
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.