The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RANDALL GLENN ROSSBACH, DOCKET NUMBER
Appellant, DC-315I-14-0066-I-1
v.
DEPARTMENT OF THE INTERIOR, DATE: February 17, 2016
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Glenn L. Smith, Esquire, Grand Rapids, Michigan, for the appellant.
James Nicklas Holt, Jr., Knoxville, Tennessee, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his termination appeal for lack of jurisdiction and denied his request
for corrective action under the Veterans Employment Opportunities Act of 1998
(VEOA). For the reasons discussed below, we GRANT the appellant’s petition
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
for review, VACATE the initial decision, and REMAND the appeal to the
regional office for further adjudication in accordance with this order.
BACKGROUND
¶2 Effective August 26, 2012, the agency appointed the appellant to a
Maintenance Worker Supervisor position in the competitive service at Great
Smoky Mountains National Park in North Carolina. Initial Appeal File (IAF),
Tab 4 at 6-7, 15, 18. His appointment was subject to a 1-year probationary period
and required him to possess or obtain a North Carolina Water Operators License
(C-Well) within 1 year. 2 IAF, Tab 37 at 28.
¶3 On Thursday, August 22, 2013, the appellant emailed his supervisor
requesting leave without pay (LWOP) under Executive Order (EO) 5396 due to a
medical emergency. 3 IAF, Tab 18 at 8. On Saturday, August 24 and Sunday,
August 25, the appellant sent text messages to his supervisor stating that he
would be getting a heart catheterization on the next Monday and reiterating his
request for leave under EO 5396. See id. at 9-10. According to a declaration
made under penalty of perjury by C.S., the Deputy Chief of the appellant’s
division, the appellant’s messages did not meet the requirements for requesting
leave under EO 5396, but the agency nonetheless granted the appellant sick leave
for 2 days. IAF, Tab 37 at 25.
¶4 On Friday, August 23, 2013, C.S. issued a notice to the appellant stating
that the agency was terminating him effective that day due to his failure to obtain
a C-Well license within 1 year of his appointment. IAF, Tab 4 at 7. The notice
informed the appellant that his probationary period expired on August 25, 2013,
2
While the appointment Standard Form 50 is not included in the record, the parties
do not dispute the effective date of the appellant’s appointment. See, e.g., IAF, Tab 4
at 6-7, 18.
3
EO 5396 entitles disabled veterans in the executive branch to annual leave, sick leave,
or leave without pay to obtain necessary medical treatment, provided that the employee
gives prior notice and provides appropriate medical documentation.
3
and that, as a probationary employee, his appeal rights were limited. Id. The
agency mailed the notice by first-class mail to the appellant’s residence in
Michigan on August 23, 2013. Id. at 8. According to the appellant’s declaration
under penalty of perjury, C.S. informed him by telephone on Saturday, August 24
or Sunday, August 25, 2013, while he was still in the hospital, that he had been
terminated. IAF, Tab 39 at 15.
¶5 On September 20, 2013, the appellant submitted a claim to the Department
of Labor (DOL) alleging that the agency had violated his veterans’ preference
rights when it terminated him the day after he requested LWOP under EO 5396.
IAF, Tab 4 at 17-20. By correspondence dated September 25, 2013, DOL notified
the appellant that it would not investigate his claim but that he could file an
appeal to the Board within 15 days of receipt of the letter. Id. at 21.
¶6 On October 24, 2013, the appellant appealed his termination to the Board
and requested a hearing. 4 IAF, Tab 1. The administrative judge notified the
appellant of the law and burdens of proof applicable to establishing jurisdiction
over an appeal of a termination during an employee’s probationary period and
claims arising under VEOA. 5 IAF, Tab 2 at 2-3, Tab 20.
¶7 After affording the parties an opportunity to respond, the administrative
judge found that the appellant had established jurisdiction over his VEOA claim
but that he had failed to make a nonfrivolous allegation of jurisdiction over his
probationary termination appeal, which would be dismissed for lack of
jurisdiction. IAF, Tab 25. The administrative judge scheduled a hearing to be
4
Due to the Government shutdown from October 1-17, 2013, all Board filing deadlines
were extended by the number of days the Federal Government was shut down. Thus,
the appellant’s appeal was timely filed.
5
The administrative judge also provided the appellant with jurisdictional notice
regarding claims under the Uniformed Services Employment and Reemployment Rights
Act of 1994 (codified at 38 U.S.C. §§ 4301-4333) (USERRA). IAF, Tab 19. The
appellant subsequently clarified that he did not wish to pursue a USERRA appeal at that
time, IAF, Tab 21, and, accordingly, the administrative judge informed the parties that
she would not adjudicate a USERRA claim, IAF, Tab 25 at 3.
4
held in Arlington, Virginia. IAF, Tab 29. The appellant submitted a request to
change the hearing location to Detroit, Michigan, near where he lived, or to hold
a hearing by videoconference. IAF, Tab 30 at 4. The appellant stated that, if the
hearing could not be moved or held by videoconference, then he would have to
withdraw his request for a hearing because he lacked the financial resources to
travel. Id. The administrative judge found that the appellant had withdrawn his
request for a hearing and canceled the hearing. IAF, Tab 34.
¶8 In an initial decision based on the written record, the administrative judge
dismissed the appellant’s termination appeal for lack of jurisdiction, finding that
he was terminated during his probationary period for conduct that occurred after
his appointment and that he had not alleged that his termination was based on
partisan political reasons or marital status discrimination. IAF, Tab 40, Initial
Decision (ID) at 3-7. The administrative judge found Board jurisdiction over the
VEOA claim but determined that the appellant had failed to show by a
preponderance of the evidence that the agency violated one or more of his
statutory or regulatory veterans’ preference rights. ID at 7-12. Thus, the
administrative judge denied the appellant’s request for corrective action under
VEOA. ID at 12.
¶9 The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 3. The agency has responded in opposition to the
petition for review. PFR File, Tab 7.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant made a nonfriviolous allegation of Board jurisdiction over his
termination appeal.
¶10 To establish Board jurisdiction under 5 U.S.C. chapter 75, an individual
must, among other things, show that he satisfies one of the definitions of
“employee” in 5 U.S.C. § 7511(a)(1). 5 U.S.C. § 7513(d); Sosa v. Department of
Defense, 102 M.S.P.R. 252, ¶ 6 (2006). For an individual, like the appellant, who
was appointed to a position in the competitive service, this means that he must
5
either: (1) not be serving a probationary or trial period under an initial
appointment; or (2) have completed 1 year of current continuous service under
other than a temporary appointment limited to 1 year or less. 6 5 U.S.C.
§ 7511(a)(1)(A). The appellant has the burden of proof on the issue of
jurisdiction, 5 C.F.R. § 1201.56(b)(2)(i)(A), and, when an appellant makes a
nonfrivolous allegation that the Board has jurisdiction over an appeal, he is
entitled to a hearing on the jurisdictional question, assuming he requested a
hearing and did not subsequently waive his right to a hearing. See Liu v.
Department of Agriculture, 106 M.S.P.R. 178, ¶ 8 (2007). Nonfrivolous
allegations of Board jurisdiction are allegations of fact that, if proven, could
establish a prima facie case that the Board has jurisdiction over the matter at
issue. Id.
¶11 A probationary period ends at the completion of the last day of the
employee’s tour of duty before his anniversary date. Herring v. Department of
Veterans Affairs, 72 M.S.P.R. 96, 100 (1996); 5 C.F.R. § 315.804(b). A “tour of
duty” is an employee’s regularly scheduled hours and days of duty. Hardy v.
Merit Systems Protection Board, 13 F.3d 1571, 1573 (Fed. Cir. 1994). Here, the
appellant was appointed on August 26, 2012, and his 1-year anniversary date was
August 26, 2013; thus, he completed his probationary period when he finished his
last tour of duty on or before Sunday, August 25, 2013.
¶12 In the initial decision, the administrative judge found that the appellant
completed his probationary period on Friday, August 23, 2013. ID at 5. The
administrative judge does not cite anything to support this finding, and there is no
evidence in the record to suggest that the appellant, a Maintenance Worker
Supervisor, was not regularly scheduled to work weekends. In fact, the vacancy
6
An individual in the competitive service who does not satisfy either definition may
nevertheless have a regulatory right to appeal a termination to the Board if the agency
terminated him for reasons arising before his appointment but failed follow the
procedures of 5 C.F.R. § 315.805 in effecting the termination. 5 C.F.R. § 315.806.
6
announcement used to fill the appellant’s position specifies that the position
required the incumbent to work weekends. IAF, Tab 37 at 28. In addition, C.S.’s
affidavit stated that the agency granted the appellant sick leave for Friday,
August 23 and Saturday, August 24, 2013, which further suggests that the
appellant was scheduled to work on the Saturday in question. 7 IAF, Tab 37 at 25.
While this evidence suggests that the appellant’s probationary period did not end
until Saturday, August 24 or Sunday, August 25, 2013, we find it insufficient to
establish the fact with adequate certainty.
¶13 To terminate a probationary employee in the competitive service for
conduct occurring after his appointment, the agency must notify him “in writing
as to why he is being separated and the effective date of the action.” 5 C.F.R.
§ 315.804(a). 8 The Board has held that “the plain meaning of the regulatory
language indicates that the employee is not terminated until he receives such
notice since it is only ‘by notifying him in writing’ that termination of the
employee’s services is accomplished.” Lavelle v. Department of
Transportation, 17 M.S.P.R. 8, 15 (1983) (quoting 5 C.F.R. § 315.804), modified
on other grounds by Stephen v. Department of the Air Force, 47 M.S.P.R. 672
7
Although the agency has maintained throughout this appeal that the appellant’s
termination was effective on August 23, 2013, C.S.’s statement that the appellant was
granted sick leave for August 24, 2013, suggests that the appellant remained in a pay
status as an agency employee through at least Saturday, August 24, 2013. IAF, Tab 37
at 25. However, the parties have not provided the appellant’s time and attendance
records, and we are unable to verify the accuracy of C.S.’s statement.
8
By contrast, removal of a tenured employee, i.e., an individual who satisfies the
definition of “employee” at 5 U.S.C. § 7511(a)(1), may be taken only for such cause as
will promote the efficiency of the service. 5 U.S.C. § 7513(a). Tenured employees
against whom an adverse action, such as a removal, is proposed, are entitled to the
procedures set forth at 5 U.S.C. § 7513(b), including advance written notice, an
opportunity to answer, and a written decision setting forth the specific reasons for
the action.
7
(1991). 9 An employee need not receive actual delivery of the agency’s notice
before the effective date of the termination so long as the agency’s attempts to
notify him were diligent and reasonable under the circumstances. Id. If the
agency made diligent and reasonable attempts to effect service of the notice prior
to the effective date of the action, then the Board will find that the employee
received constructive delivery of the notice. See id. If an employee does not
receive actual or constructive delivery of written notice of his termination until
after the effective date of the action, the action is not effective until actual receipt
of the notice by the employee. See id. at 16.
¶14 In this appeal, the administrative judge found that the appellant received the
termination notice on August 23, 2013. ID at 6. On review, the appellant argues
that this finding was in error and that, while he does not recall the exact date he
received the written termination notice, he knows that he did not receive it until
after he left the hospital on Monday, August 26, 2013. PFR File, Tab 3 at 10-12.
As noted above, the agency mailed the termination notice by first-class mail to
the appellant’s residence in Michigan on August 23, 2013. IAF, Tab 4 at 7-8.
We take administrative notice of the fact that first-class mail is not usually
delivered on the same day that it is deposited in the mail, particularly when the
delivery location is hundreds of miles from the point of mailing. See 5 C.F.R.
§ 1201.64 (stating that administrative notice may be taken of matters of common
knowledge). Thus, we agree with the appellant that the administrative judge
erred in finding that the appellant received the termination notice on August 23,
2013. Further, it does not appear that the agency took reasonable or diligent steps
under the circumstances to afford the appellant prior notice; the Board has found
that mailing a termination notice to an employee by certified mail on the effective
9
Although Lavelle quotes a previous version of 5 C.F.R. § 315.804, the current version
of the regulation contains the identical language regarding providing employees written
notice of their termination.
8
date of the action was “completely inadequate to ensure prior service.” Lavelle,
17 M.S.P.R. at 15.
¶15 In sum, the date the appellant completed his probationary period and the
date he received notice of the termination are not clear from the evidence of
record. Further, it does not appear that the appellant received notice of the
termination notice prior to the effective date of the action. As such, the appellant
has made allegations of fact that, if true, would establish Board jurisdiction over
his adverse action appeal. See Liu, 106 M.S.P.R. 178, ¶ 8. Thus, he is entitled to
a hearing on the jurisdictional question, assuming he requested a hearing and
did not subsequently waive it. See id. Accordingly, we now address whether the
appellant is entitled to a hearing.
The administrative judge erred in finding that the appellant withdrew his request
for a hearing.
¶16 As noted above, the administrative judge scheduled the hearing to be held in
Arlington, Virginia, IAF, Tab 29, and the appellant requested that the hearing be
either moved to Detroit, Michigan, near where he lived, or held by
videoconference, IAF, Tab 30 at 4. In his motion, the appellant stated that, if the
hearing remained scheduled in Arlington, he would “have to withdraw his request
for a hearing and submit the case on the record due to the lack of financial
resources.” Id. On the basis of the appellant’s motion to change the hearing
location, the administrative judge found that the appellant had withdrawn his
request for a hearing, canceled the hearing, and ordered the parties to submit
initial briefs. IAF, Tab 34.
¶17 An appellant who has requested a hearing may withdraw his request and
have the administrative judge adjudicate his appeal on the record. Shingles v.
U.S. Postal Service, 90 M.S.P.R. 245, ¶ 10 (2001). However, an appellant may
only waive his right to a hearing by clear, unequivocal, or decisive action. Id.
Further, the waiver must be an informed one. Id. An appellant’s waiver of the
9
right to a hearing is informed when he has been fully apprised of the relevant
adjudicatory requirements and options in his case. Id.
¶18 Here, the appellant did not clearly, unequivocally, or decisively waive his
right to a hearing; rather, he asked for a new hearing location or a hearing by
videoconference because he lacked the financial resources to travel. IAF, Tab 30
at 4. The appellant’s statement that “he will have to withdraw his request for a
hearing” was conditioned upon the administrative judge’s denial of his request to
move the hearing location to Detroit or hold a hearing by videoconference. See
id. Moreover, the appellant’s waiver of a hearing was not an informed one
because the administrative judge did not inform him of his right to a hearing by
telephone, by videoconference, or at a location other than Arlington, Virginia,
and did not inform him of his right to request a postponement or continuance of
the hearing and a dismissal of the appeal without prejudice. See Siman v.
Department of Air Force, 80 M.S.P.R. 306, ¶ 6 (1998); Conant v. Office of
Personnel Management, 79 M.S.P.R. 148, 150-51 (1998). Although the appellant
has not specifically challenged the administrative judge’s finding that he waived
his right to a hearing on review, a right to a hearing is so fundamental a right that
we have considered the issue sua sponte and find that the appellant did not waive
his right to a hearing. See Siman, 80 M.S.P.R. 306, ¶ 6 (raising issues related to
withdrawal of a request hearing sua sponte).
¶19 As discussed above, the appellant has made a nonfrivolous allegation of
jurisdiction and thus is entitled to the hearing that he requested and did not waive.
Accordingly, we remand this appeal to the administrative judge. On remand, the
administrative judge shall afford the appellant the option of a hearing in person or
by videoconference and shall issue a new initial decision consistent with
this order. 10
10
In considering the locations for a possible in-person hearing, the administrative judge
should consider the location of the parties and witnesses in addition to the convenience
of the Board. See 5 C.F.R. § 1201.51(d).
10
The administrative judge erred in deciding the appellant’s VEOA claim without
holding his requested hearing.
¶20 The administrative judge found jurisdiction over the appellant’s VEOA
claim and, because she determined that he had waived his right to a hearing,
denied corrective action on the basis of the written record. ID at 7-12. Although
the Board’s regulations permit adjudicating a VEOA claim on the merits without
a hearing, an administrative judge may only do so where there is no genuine
dispute of material fact and one party must prevail as a matter of law. 5 C.F.R.
§ 1208.23(b); see Williamson v. U.S. Postal Service, 106 M.S.P.R. 502, ¶ 8
(2007). As discussed above, however, the administrative judge erred in finding
that the appellant had waived his right to a hearing. As such, on remand the
administrative judge shall afford the appellant a hearing on the merits or make a
determination that there was no genuine issue of material fact in dispute.
¶21 Lastly, we acknowledge that the appellant previously expressly stated his
objection to bringing a USERRA claim “at this time” and we find no error in the
administrative judge’s decision not to adjudicate a USERRA claim. However, on
remand, the administrative judge should allow the appellant the opportunity to
amend his appeal to assert a USERRA claim. 11
ORDER
¶22 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
11
We make no finding about the preclusive effect this appeal may have on the
appellant’s ability to bring a USERRA claim at a later time.
11