articulating the “substantial or motivating factor” standard
How later courts described this case
- articulating the “substantial or motivating factor” standard
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARISSE LONDON, DOCKET NUMBER
Appellant, AT-315H-21-0601-I-1
v.
DEPARTMENT OF HOMELAND DATE: April 22, 2022
SECURITY,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Charisse London, Atlanta, Georgia, pro se.
Andrew Hass, Washington, D.C., 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,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
VACATE the initial decision, and REMAND the case to the Atlanta Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 In September 2020, the agency appointed the appellant, a preference
eligible, to a competitive-service position as a GS-9 Administrative Specialist.
Initial Appeal File (IAF), Tab 8 at 21. The agency terminated her in
August 2021, prior to the completion of her probationary period, because of
unsatisfactory performance. IAF, Tab 3 at 7-10. The termination notice advised
the appellant of her options for obtaining review of the agency’s decision,
including her option to seek corrective action from the Office of Special Counsel
(OSC) and to obtain limited review from the Board. Id. at 10-11. Nothing in the
record suggests the appellant sought corrective action from OSC , and her appeal
form does not indicate whether she filed a whistleblowing com plaint with OSC.
IAF, Tab 1 at 1-3. The Standard Form 50 documenting her appointment shows
that she had 1 year and 2 months of creditable military service from 1989-1990.
IAF, Tab 3 at 21, Tab 8 at 21.
¶3 The appellant filed this appeal, in which she appeared to allege that the
agency wrongfully terminated her in retaliation for speaking with Human
Resources staff, her second-line supervisor, and another agency official.
IAF, Tab 3 at 44. According to the appellant, the conversations concerned her
Unacceptable rating on her 2020 Performance Appraisal and lack of mentorship
and support, as well as her request for a reasonable accommodation for her
service-connected disability. Id. at 20, 39, 44, 49-52, 64, 74-75, 94.
The administrative judge notified the appellant of her burden of proof to establish
Board jurisdiction over her appeal as an “employee” under chapter 75 or pursuant
to Office of Personnel Management (OPM) regulations regarding probationary
appointees. IAF, Tab 2 at 1-2, Tab 4 at 1-5. In response, the appellant stated that
her Federal service computation date with “military [service] combined” was
3
June 20, 2019, and resubmitted her appeal form with additional documents
relating to the merits of her termination. IAF, Tab 3 at 26, Tab 8 at 21.
¶4 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction.
IAF, Tab 1 at 2, Tab 9, Initial Decision (ID) at 1, 6. The administrative judge
reasoned that the appellant failed to nonfrivolously allege any statutory or
regulatory basis for Board jurisdiction over her p robationary termination.
ID at 3-6.
¶5 The appellant has filed a petition for review of the initial decision, and the
agency responded in opposition. Petition for Review (PFR) File, Tabs 1, 3.
In her petition for review, the appellant disputes the merits of her termination by
resubmitting a copy of a narrative statement appearing in the record bel ow.
PFR File, Tab 1 at 4-33; IAF, Tab 3 at 5-6, 18-20, 26-28, 36-39, 43-44, 49-54,
57-61, 74-76, 88-89. She reiterates that she had over 2 years of Federal service
because of her military service but does not make any new statements or address
the Board’s jurisdiction on review. PFR File, Tab 1 at 9.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the Board lacks jurisdiction under
chapter 75 and OPM regulations over the appellant’s probationary termination.
¶6 Generally, in order to qualify for chapter 75 appeal rights, a probationary
employee in the competitive service must have 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); McCormick v. Department of the Air Force,
307 F.3d 1339, 1340-43 (Fed. Cir. 2002). Pursuant to 5 C.F.R. § 752.402,
“current continuous service” does not include military service. Wilder v. Merit
Systems Protection Board, 675 F.3d 1319, 1322-23 (Fed. Cir. 2012).
A probationary employee in the competitive service who does not have a statutory
right of appeal may nonetheless have a regulatory right of appe al to the Board if
she makes a nonfrivolous allegation that the agency terminated her because of
4
discrimination based on marital status or for partisan political reasons, or because
of conditions arising before appointment to the position in question. Harris v.
Department of the Navy, 99 M.S.P.R. 355, ¶ 6 (2005); 5 C.F.R. §§ 315.805-.806.
The Board may consider a probationary appointee’s claim of discrimination based
on disability only if the discrimination is raised in addition to one of these issues.
5 C.F.R. § 315.806(d).
¶7 The administrative judge correctly found that the appellant has failed to
show that she was an “employee” with a statutory right to appeal her termination
because she was serving a probationary period and had less than 1 year of current
continuous service. ID at 3-5. The appellant did not claim below, and has not
raised on review, that she had any prior Federal civilian service. IAF, Tabs 1, 3;
PFR File, Tab 1. We note that the appellant had over 1 year of prior milita ry
service. IAF, Tab 3 at 21. Such military service, however, may not be tacked
onto her current service to bring her appeal within the Board’s jurisdiction.
Wilder, 675 F.3d at 1322-23. Even if it could, the appellant’s military service
occurred 30 years before her entry into Federal civilian service and is too remote
in time to be tacked for service computation purposes. IAF, Tab 3 at 21; see
Claiborne v. Department of Veterans Affairs, 118 M.S.P.R. 491, ¶ 6 (2012)
(explaining that prior service may only be tacked onto a competitive service
probationary appointment to meet the 1-year “current continuous service”
requirement when the break between the two periods was less than a workday).
¶8 The administrative judge also correctly found that the appellant did not
have a right to appeal her probationary termination to the Board under OPM
regulations because she did not allege that her termination was based on
conditions arising before her appointment, was the result of marital status
discrimination, or was for partisan political reasons. ID at 5; 5 C.F.R.
§ 315.806(a)-(c). The parties have not disputed this finding on review , and we
discern no reason to disturb it.
5
We remand for further proceedings because the appellant did not receive explicit
notice of what is required to establish Board jurisdiction based on her allegations.
¶9 We find that the instant appeal needs to be remanded for further
proceedings under 5 U.S.C. § 7701, because it appears that the appellant may be
attempting to raise an individual right of action (IRA) appeal under the
Whistleblower Protection Enhancement Act of 2012 or a discrimination claim
under the Uniformed Services Employment and Reemployment Rights Act of
1994 (codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA). 2
¶10 An appellant must receive explicit information on what is required to
establish Board jurisdiction. Burgess v. Merit Systems Protection Board,
758 F.2d 641, 643-44 (Fed. Cir. 1985); Burwell v. Department of the Army,
78 M.S.P.R. 645, ¶¶ 8-9 (1998) (remanding an appeal due to the administrative
judge’s failure to advise the appellant what was required to establish Board
jurisdiction over an IRA appeal). The administrative judge’s orders, initial
decision, and agency’s submissions did not provide the appellant with notice on
the jurisdictional requirements of an IRA appeal. IAF, Tabs 2, 4, 8 -9; ID at 1-6;
see Harris v. U.S. Postal Service, 112 M.S.P.R. 186, ¶ 9 (2009) (stating that
an administrative judge’s failure to provide an appellant with proper Burgess
notice can be cured if the agency’s pleadings or the initial decision contain the
notice that was otherwise lacking). Although her appeal form does not indicate
whether she filed a whistleblowing complaint with OSC, the appellant alleged
that the agency retaliated against her after she spoke with Human Resources staff,
her second-line supervisor, and another agency official concerning, among other
issues, her concerns about a lack of mentoring and her Unacceptable performance
appraisal. IAF, Tab 1, Tab 3 at 44, 49-52, 64, 74-75.
2
The Board’s jurisdiction over a USERRA claim is not dependent on an appellant
invoking USERRA. Yates v. Merit Systems Protection Board, 145 F.3d 1480, 1485
(Fed. Cir. 1998). USERRA claims are broadly and liberally construed. Tindall v.
Department of the Army, 84 M.S.P.R. 230, ¶¶ 6-7 (1999).
6
¶11 The appellant needs to be advised that to establish Board jurisdiction over
an IRA appeal, she must show that she exhausted her administrative remedies
before OSC and make nonfrivolous allegations of the following: (1) she made
a protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in
protected activity as specified in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D);
and (2) the disclosure or protected activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302(a)(2)(A). 5 U.S.C. §§ 1214(a)(3), 1221(a), (e)(1); Salerno v. Department
of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). Because the appellant was not so
informed, it is necessary to remand this appeal to the regional office to provide
her with an adequate opportunity to establish jurisdiction. Burwell, 78 M.S.P.R.
645, ¶ 9.
¶12 Regarding her possible USERRA claim, the appellant stated that she is
a disabled veteran with a 30 percent service-connected disability and that the
agency discriminated against her due to her service-connected disability.
IAF, Tab 3 at 20-21, 26. If the fact that the appellant incurred the injury during
military service is incidental to her claim of disability discrimination , then it does
not, on its own, make her claim a USERRA claim. McBride v. U.S. Postal
Service, 78 M.S.P.R. 411, 415 (1998). Conversely, if the appellant is alleging the
agency’s actions, culminating in and including her termination, were motivated
by her status as a disabled veteran, the Board may have jurisdiction over her
claim. Lazard v. U.S. Postal Service, 93 M.S.P.R. 337, ¶ 8 (2003). Neither the
administrative judge nor the agency’s submissions provided the appellant with
notice on the jurisdictional requirements of a USERRA claim. IAF, Tabs 2, 4,
8-9.
¶13 Therefore, the appellant also needs to be advised that to establish Board
jurisdiction over a USERRA discrimination claim under 38 U.S.C. § 4311(a), she
must nonfrivolously allege that: (1) she performed duty or has an obligation to
perform duty in a uniformed service of the United States; (2) the agency denied
7
her initial employment, reemployment, retention, promotion, or any benefit of
employment; and (3) the performance of duty or obligation to perform duty in the
uniformed service was a substantial or motivating factor in the denial. Hau v.
Department of Homeland Security, 123 M.S.P.R. 620, ¶ 11 (2016), aff’d sub nom.
Bryant v. Merit Systems Protection Board, 878 F.3d 1320 (Fed. Cir. 2017); see
Bryant, 878 F.3d at 1325-26 (articulating the “substantial or motivating factor”
standard) (citation omitted).
ORDER
¶14 For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
The administrative judge may adopt his prior findings regarding the Board’s lack
of jurisdiction over the appellant’s termination under chapter 75 and 5 C.F.R.
§§ 315.805-.806 in his remand initial decision.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.