Opinion

Nia Gholston v. Department of the Treasury

Court: Merit Systems Protection Board
Filed: Mar 22, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

NIA L. GHOLSTON, DOCKET NUMBER

Appellant, DC-315H-18-0608-I-1

DEPARTMENT OF THE TREASURY, DATE: March 22, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Nia L. Gholston , District Heights, Maryland, pro se.

Deborah Charette and Alysa Lease-Williams , Washington, D.C., for the

agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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 in the following circumstances: the

initial decision contains erroneous findings of material fact; the initial decision is

based on an erroneous interpretation of statute or regulation or the erroneous

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

application of the law to the facts of the case; the administrative 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. 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, 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).

On review, the appellant filed a motion for leave to file additional

evidence. Petition for Review (PFR) File, Tab 4 at 2. The Board generally will

not consider evidence submitted for the first time on review absent a showing that

it was unavailable prior to the close of the record despite the party’s due

diligence. 5 C.F.R. § 1201.115(d); see Avansino v. U.S. Postal Service,

3 M.S.P.R. 211, 214 (1980). Here, the appellant provides no explanation as to

why she could not file this evidence with the administrative judge. Moreover, her

motion states that some of the evidence she now seeks leave to file “was

mentioned . . . in [her] termination letter from the agency,” which suggests she

was aware of its existence prior to the close of the record. PFR File, Tab 4 at 2;

see 5 C.F.R. § 1201.115(d) (“To constitute new evidence, the information

contained in the documents, not just the documents themselves, must have been

unavailable despite due diligence when the record closed.”). Thus, we deny the

motion.

The Board’s jurisdiction is limited to those matters over which it has been

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). A probationary employee in

the competitive service who has not completed 1 year of continuous service lacks

the right to appeal an adverse action to the Board pursuant to 5 U.S.C. chapter 75.

5 U.S.C. §§ 7511(a)(1)(A), 7513(d); see Harris v. Department of the Navy,

99 M.S.P.R. 355, ¶ 6 (2005). However, a probationary employee in the

competitive service has a regulatory right to appeal her termination in three

limited circumstances: (1) the employee was discriminated against on account of

her marital status; (2) the employee was discriminated against based on partisan

political reasons; or (3) the agency action was based (in whole or part) on

issues that arose preappointment and the agency did not follow required

procedures. Blount v. Department of the Treasury, 109 M.S.P.R. 174, ¶ 5 (2008);

5 C.F.R. §§ 315.805-315.806.

On review, the appellant alleges that she was improperly designated as a

probationary employee. PFR File, Tab 1 at 3. To this end, she avers that she has

prior Federal service, had no performance issues during her tenure with the

agency, and completed her training early. Id. at 3-7. However, the undisputed

record reflects that the agency appointed her to a position in the

competitive service subject to a 1-year probationary period and terminated her

less than 1 year later; thus, the appellant lacks 1 year of continuous service. See

5 U.S.C. §§ 7511(a)(1)(A), 7513(d); Initial Appeal File (IAF), Tab 5 at 11, 13.

Her allegations of prior Federal service do not constitute nonfrivolous allegations

of Board jurisdiction because the record indicates that such service occurred years

prior to her appointment. IAF, Tab 5 at 24-27; see 5 C.F.R. § 752.402 (“Current

continuous employment means a period of employment or service immediately

preceding an adverse action without a break in Federal civilian employment of a

workday.”); see also Ellefson v. Department of the Army, 98 M.S.P.R. 191,

¶¶ 13-14 (2005). The appellant’s assertions that she completed her training early

and had no performance issues are similarly immaterial to Board jurisdiction. See

5 C.F.R. §§ 315.801-315.802. Accordingly, the appellant has failed to render

nonfrivolous allegations sufficient to warrant a hearing on jurisdiction. See

Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994); 5 C.F.R. § 1201.4(s)

(“A nonfrivolous allegation is an assertion that, if proven, could establish the

matter at issue.”).

On review, the appellant alleges that her coworker sexually harassed her

and asserts for the first time that she is a “ single Black female.” PFR File, Tab 1

at 4-6, 8 (emphasis added). To the extent the appellant makes this statement to

suggest that the agency discriminated against her on the basis of her marital

status, we find that she fails to render nonfrivolous allegations sufficient to

warrant a hearing on jurisdiction. See Flores v. Farmers Home Administration,

12 M.S.P.R. 286, 287 (1982). The appellant has not alleged any correlation

between her statement that she is single and her allegations of sexual harassment,

i.e., that her coworker’s inappropriate behavior was related to, or motivated by,

her marital status. Cf. Ellis v. Department of the Treasury, 81 M.S.P.R. 6, ¶ 11

(1999) (finding the appellant entitled to a jurisdictional hearing when he raised

allegations containing intertwined elements of both sexual harassment and marital

status discrimination).

On review, the appellant alleges for the first time that she is “invoking the

privileges of the Whistleblower Act of 1989.” PFR File, Tab 7 at 1. To this end,

she states that the agency terminated her to cover up unspecified violations

relating to both “ethics” and “scientific integrity.” Id. Because the appellant did

not raise these allegations prior to the issuance of the initial decision, the

administrative judge did not inform her of the applicable burden of proof with

respect to establishing Board jurisdiction for individual right of action appeals

pursuant to 5 U.S.C. § 1221. See Burgess v. Merit Systems Protection Board ,

758 F.2d 641, 643-44 (Fed. Cir. 1985). The Board has jurisdiction over

such appeals only if, among other things, the appellant has exhausted

her administrative remedies before the Office of Special Counsel (OSC).

Mason v. Department of Homeland Security, 116 M.S.P.R. 135, ¶ 9 (2011). Here,

there is nothing in the record to suggest that the appellant has exhausted her OSC

administrative remedies. See Simnitt v. Department of Veterans Affairs,

113 M.S.P.R. 313, ¶ 8 (2010) (explaining the specific requirements of

exhaustion). Accordingly, we discern no basis for Board jurisdiction at this time.

Should the appellant exhaust her administrative remedies with OSC, she may file

a separate appeal in this regard. See 5 U.S.C. §§ 1221, 1214; 5 C.F.R. part 1209.

NOTICE OF APPEAL RIGHTS 2

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 3 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the