The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
APRIL PINSONNEAULT, DOCKET NUMBER
Appellant, NY-315H-17-0203-I-1
v.
DEPARTMENT OF THE ARMY, DATE: May 19, 2022
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
April Pinsonneault, West Point, New York, pro se.
Matthew J. Geller, Esquire, West Point, New York, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, 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. For the
reasons discussed below, we GRANT the appellant’s petition for review ,
AFFIRM the finding that the Board lacks jurisdiction over the appellant’s
termination appeal under 5 U.S.C. chapter 75 and 5 C.F.R. part 315, VACATE the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential order s,
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
finding that the appellant failed to nonfrivolously allege jurisdiction under the
Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA), and REMAND the case to the New York Field Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
¶2 Effective September 19, 2016, the U.S. Military Academy appointed the
appellant to an Information Technology Specialist position in the competitive
service. Initial Appeal File (IAF), Tab 1 at 8, Tab 5 at 9. Although originally
subjected to a 1-year probationary period, this was corrected to a 2-year
probationary period due to the National Defense Authorization Act for Fiscal
Year 2016 (NDAA for 2016), Pub. L. No. 114-92, § 1105(a)(1), 129 Stat. 726,
1023-24 (2015) (codified at 10 U.S.C. § 1599e), which requires 2-year
probationary periods for employees hired within the Department of Defense after
November 25, 2015. IAF, Tab 1 at 7. On August 1, 2017, the agency terminated
the appellant, prior to the completion of both the original 1 -year probationary
period and the corrected 2-year probationary period. Id. at 11-15.
¶3 The appellant filed an appeal challenging her termination, alleging
“Harmful procedural Error and Violation of Uniformed Services Employment
Rights.” Id. at 5. She further asserted that she was being terminated for failure to
follow “processes that don’t exist [and] that aren’t followed by anyone ,” and that
there is no cognizable justification for her termination. Id. Finally, she stated, “I
verbally notified [the agency] on July 11th, 2017 that I’d been selected for a
mobilization tour date with start date of August 19th, 2017 and waiting for my
orders.” Id.
¶4 In an acknowledgment order, the administrative judge notified the appellant
of how to establish jurisdiction over her appeal. IAF, Tab 2 at 2 -5. In a
subsequent jurisdictional order, the administrative judge recognized that the
appellant’s initial appeal appeared to include an allegation of a USERRA
3
violation and thus notified the appellant of how to establish jurisdiction over such
USERRA claims. IAF, Tab 3.
¶5 In her response to the jurisdiction order, the appellant reiterated her claim
of a violation of “Uniformed Services Employment Rights,” and she cited
USERRA’s prohibition on discrimination under 38 U.S.C. § 4311(a). 2 IAF, Tab 9
at 7, 24. She also submitted documentation of a successful performance
evaluation, dated March 30, 2017, and a resulting 16-hour time off award given
less than 2 months before her termination. Id. at 27-29. Additionally, the
appellant cited 5 C.F.R. § 1201.56(c)(1) for the proposition that the Board has
jurisdiction over her claim that the agency committed harmful error in arriving at
its decision to terminate her. Id. at 6.
¶6 The administrative judge issued an initial decision, dismissing this appeal
for lack of jurisdiction. IAF, Tab 12, Initial Decision (ID). She found that
(1) the appellant failed to show that she was an “employee” as defined by
5 U.S.C. § 7511(a), (2) the appellant failed to nonfrivolously allege jurisdiction
under 5 C.F.R. §§ 315.805–.806, and (3) the appellant failed to nonfrivolously
allege jurisdiction under USERRA. ID at 4-8. Specifically, the administrative
judge found that the appellant failed to nonfrivolously allege that her
mobilization was a “substantial or motivating factor” in the agency’s decision to
terminate her during her probationary period. ID at 7. Moreover, the
administrative judge held that, to meet her jurisdictional burden of showing that
her military service was a motivating factor in her termination, the appellant
“must nonfrivolously allege the agency ‘relied on, took into account, considered,
or conditioned its decision’ on her military service.” Id. (quoting Erickson v.
U.S. Postal Service, 571 F.3d 1364, 1368 (Fed. Cir. 2009) (discussing the
2
In her response, the appellant incorrectly cited 5 C.F.R. § 1201.56(a)(3) for
establishing jurisdiction over a USERRA allegation, but that section specifically says it
does not apply to USERRA allegations. 5 C.F.R. § 1201.56(a)(3); IAF, Tab 9 at 7.
Presumably, she meant to cite to 5 C.F.R. § 1201.57(a)(3), which applies to USERRA
appeals.
4
appellant’s initial burden during adjudication of the merits phase of a USERRA
claim)). The administrative judge additionally found that, even after being given
an opportunity to respond to the USERRA jurisdictional order, “the appellant’s
subsequent pleadings were devoid of any additional information shedding any
additional light on her claim.” ID at 8.
¶7 The appellant has filed a petition for review disputing the facts underlying
her termination. Petition for Review (PFR) File, Tab 1 at 4-5. She further states
that she was mobilized for military service “within 3 weeks of [the agency]
unfairly terminating me in the midst of a mobilization process.” Id. at 4. The
remainder of the appellant’s petition focuses on her dissatisfaction with the
appeal process and lack of rights afforded to probationary employees. Id. at 4-5.
The agency has responded to her petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board lacks jurisdiction over the appellant’s probationary term ination claim
under 5 U.S.C. chapter 75 and 5 C.F.R. part 315.
¶8 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. LeMaster v. Department of
Veterans Affairs, 123 M.S.P.R. 453, ¶ 7 (2016). Generally, to qualify as an
“employee” with adverse action appeal rights to the Board, an individual in the
competitive service must show that she is not serving a probationary period under
an initial appointment or has completed 1 year of current continuous service
under an appointment other than a temporary one limited to 1 year or less. 3
5 U.S.C. § 7511(a)(1)(A); Henderson v. Department of the Treasury,
3
As the administrative judge observed, the agency corrected the appellant’s Standard
Form 50 to reflect a 2-year probationary period. ID at 2; IAF, Tab 5 at 10. It made this
change to comply with the NDAA for 2016. 10 U.S.C. § 1599e. In the initial decision,
the administrative judge incorrectly cited section 1599a for this proposition, but was in
fact referencing 1599e. ID at 2. Because the appellant was terminated within 1 year,
the Board need not determine whether a 1- or 2-year probationary period is applicable
here.
5
114 M.S.P.R. 149, ¶ 9 (2010). Additionally, the Board has jurisdiction over the
termination of a probationary employee if her termination was based on marital
status or partisan political reasons. 5 C.F.R. § 315.806(b); see Green-Brown v.
Department of Defense, 118 M.S.P.R. 327, ¶ 5 (2012) (discussing the two-step
process for establishing Board jurisdiction over such claims) . Furthermore, under
5 C.F.R. § 315.806(c), a probationer whose termination was based on
preappointment reasons may appeal on the ground that her termination was not
effected in accordance with the procedural requirements of section 315.805. West
v. Department of Health & Human Services, 122 M.S.P.R. 434, ¶ 7 (2015).
¶9 The appellant began working for the agency on September 19, 2016 , and
was terminated effective August 1, 2017. IAF, Tab 1 at 8, 11. She has not
claimed any prior Federal civilian employment and her prior active-duty military
service does not count towards the 1 year of current continuous service
requirement. Cunningham v. Department of the Army, 119 M.S.P.R. 147, ¶ 6
(2013). As such, we agree with the administrative judge that the appellant is not
an “employee” for purposes of chapter 75 and thus the Board does not have
jurisdiction over her termination appeal.
¶10 Moreover, the appellant has not alleged that her termination was based on
marital status, partisan political reasons, or preappointment reasons. As such, we
further agree with the administrative judge that the appellant has failed to make a
nonfrivolous allegation that she has a regulatory appeal right under 5 C.F.R.
§ 315.806.
¶11 The administrative judge did not address the appellant’s claims of harmful
error. IAF, Tab 1 at 5, Tab 9 at 6. Nevertheless, we find this oversight harmless.
See Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981) (finding the
administrative judge’s procedural error is of no legal consequence unless it is
shown to have adversely affected a party’s substantive rights). Because the
Board has no jurisdiction over the appellant’s termination as an otherwise
appealable action, the Board has no independent jurisdiction to adjudicate her
6
harmful error claims. Hurston v. Department of the Army, 113 M.S.P.R. 34, ¶ 11
(2010). The regulation cited by the appellant as supporting Board jurisdiction
over her harmful error claim does not change that result. Section 1201.56(c)(1)
requires reversing an otherwise appealable action if the appellant shows harmful
error. Because the appellant has not established jurisdiction over an otherwise
appealable action, this regulation’s discussion of harmful error is inap plicable
here.
The appellant has established jurisdiction over her USERRA discri mination claim
under 38 U.S.C. § 4311(a).
¶12 Under USERRA, the Board has jurisdiction over a “person” alleging
discrimination in Federal employment on account of prior military service or
military obligations. 38 U.S.C. §§ 4311(a), 4324(b); Henderson v. U.S. Postal
Service, 95 M.S.P.R. 454, ¶ 5 (2004). Regardless of the appellant’s status as an
“employee” outlined above, individuals who have not completed 1 year of current
continuous service nonetheless qualify as “person[s]” under USERRA, and thus
are not excluded from filing appeals under the provisions of that statute.
Henderson, 95 M.S.P.R. 454, ¶ 6.
¶13 USERRA provides in relevant part that “[a] person who is a member of . . .
or has an obligation to perform service in a uniformed service shall not be
denied . . . retention in employment . . . on the basis of that membership . . . or
obligation. 38 U.S.C. § 4311(a). To establish Board jurisdiction over a USERRA
discrimination appeal, the appellant must nonfrivolously allege (1) she performed
duty or has an obligation to perform duty in a uniformed service of the
United States; (2) the agency denied her initial employment, reemployment,
retention, promotion, or any benefit of employment; and (3) the denial was due to
the performance of duty or obligation to perform duty in the uniformed service. 4
4
An allegation generally will be considered nonfrivolous when, under oath or penalty
of perjury, an individual makes an allegation that is more than conclusory, is plausible
on its face, and is material to the legal issues in the appeal. 5 C.F.R. § 1201.4(s).
7
Wilson v. Department of the Army, 111 M.S.P.R. 54, ¶ 8 (2009); 5 C.F.R.
§ 1201.57(b).
¶14 It is undisputed that the appellant both previously performed duty and had
an obligation to perform duty in a uniformed service of the United States. IAF,
Tab 1 at 1, Tab 9 at 555-56. Additionally, the appellant’s termination during her
probationary period constitutes a denial of “retention in employment.” Pruitt v.
Department of Veterans Affairs, 97 M.S.P.R. 495, ¶ 5 (2004) (finding that
termination during probation is denying “retention in employment” within the
meaning of 38 U.S.C. § 4311(a)). The only remaining question is whether the
appellant has nonfrivolously alleged that the agency’s denial was “due to” the
performance or obligation to perform her duty in a uniformed service. We find
that she has.
¶15 Contrary to the administrative judge’s analysis, the appellant’s requirement
to prove that her military obligation was a “substantial or motivating factor” in
the agency’s action does not arise at the jurisdictional stage and is not analyzed
under the nonfrivolous standard. See Lazard v. U.S. Postal Service, 93 M.S.P.R.
337, ¶ 9 (2003) (distinguishing between the sufficiency of allegations at the
jurisdictional stage and the merits stage of a USERRA appeal). Likewise, the
administrative judge incorrectly held that, to prove her military obligation was a
motivating factor in her termination, the appellant must nonfrivolously allege the
agency relied on, took into account, considered, or conditioned its decision on her
military obligation. ID at 7. This finding incorrectly conflates the appellant’s
burden at the jurisdictional and merits determination stages. The Erickson
decision, on which the administrative judge relied, applies that standard to a
merits determination, not to a jurisdictional finding. Erickson, 571 F.3d at 1368.
¶16 It is well established that a claim of discrimination under USERRA should
be broadly and liberally construed in determining whether it is nonfrivolous for
jurisdictional purposes, particularly when, as here, the appellant is pro se.
Wilson, 111 M.S.P.R. 54, ¶ 9. The weakness of the assertions in support of a
8
claim is not a basis to dismiss a USERRA appeal for lack of jurisdiction; rather,
if the appellant fails to develop her contentions, her USERRA claim should be
denied on the merits. Id. An appellant’s allegation in general terms that the
agency denied her retention in employment due to her uniformed service is
sufficient to establish USERRA jurisdiction. See Searcy v. Department of
Agriculture, 115 M.S.P.R. 260, ¶ 8 (2010) (finding vague and unspecific
allegations that the agency denied employment in a position because of prior
uniformed service was sufficient to establish USERRA jurisdiction); Swidecki v.
Department of Commerce, 113 M.S.P.R. 168, ¶ 9 (2010) (finding that the
appellant established USERRA jurisdiction when he asserted that he performed
duty in a uniformed service of the United States, the agency was aware of his
prior uniformed service, and it denied him employment in a temporary positio n in
part because of his prior uniformed service).
¶17 We recognize that the appellant did not submit any concrete evidence to
substantiate her claims that the agency terminated her during her probationary
period because of her prior duty and obligation to perform duty in a uniformed
service. However, the appellant has alleged that she was terminated within
1 month of notifying the agency of her mobilization, and that her termination
violated her rights as a member of the uniformed services. She also has alleged
that the agency’s proffered reasons for termination were disprovable, and
suggested that other employees engaging in similar conduct are not terminated.
This, coupled with the fact that her termination was less than 2 months after she
received a time off award, is sufficient to establish a nonfrivolous allegation that
her termination was due to her obligation to perform duty in the uniformed
services of the United States. See Sheehan v. Department of the Navy, 240 F.3d
1009, 1014 (Fed. Cir. 2001) (explaining that discriminatory motivation under
USERRA may be reasonably inferred from factors such as the proximity in time
between the military activity and the adverse action, inconsistencies between the
9
agency’s proffered reasons and other actions of the employer, and disparate
treatment of the appellant compared to similarly situated employees) .
¶18 Having found that the Board has jurisdiction over the appellant’s USERRA
claim, we find that the appellant is entitled to a remand for further development
of the record and adjudication on the merits of her USERRA claim . The appellant
elected not to request a hearing in her appeal when she originally filed. IAF,
Tab 1 at 2. In light of this remand, the administrative judge should provide the
appellant with another opportunity to request a hearing if she so chooses. See
Swidecki, 113 M.S.P.R. 168, ¶ 6 (finding an appellant who raises a USERRA
claim has an unconditional right to a hearing).
ORDER
¶19 For the reasons discussed above, we remand this case to the New York Field
Office for further adjudication in accordance with this Remand Order. 5
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
5
The remand initial decision will incorporate the findings from this order and include a
notice of appeal rights for all claims raised by the appellant.