The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TERRIA A. MCKNIGHT, DOCKET NUMBER
Appellant, SF-315H-23-0133-I-1
v.
DEPARTMENT OF VETERANS DATE: May 16, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Terria A. Mcknight , Washington, D.C., pro se.
Camille D. Stroughter , Esquire, Oakland, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
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,
VACATE the initial decision, and REMAND the case to the Western Regional
Office for further adjudication in accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 The following facts are undisputed. The agency terminated the appellant
from her competitive-service position as a Contract Specialist, GS–07, during her
probationary period based, at least in part, on preappointment reasons (alleged
false certification on Optional Form 306, Declaration for Federal Employment).
Initial Appeal File (IAF), Tab 8 at 20, 24-25, 32, 36-37. Before her termination,
she received a notice of proposed termination on December 9, 2022. Id. at 32-33.
The proposal invited her to submit a reply to the Executive Director, Human
Resources Operations Office (HR Director), who stated that, upon giving it her
full and impartial consideration, she would issue a written decision. Id. at 32.
On the same day, the appellant emailed her response to the HR Director. Id.
at 27-28. On December 28, 2022, the agency issued a decision, signed by the HR
Director, terminating her effective January 5, 2023. Id. at 24-25.
¶3 The appellant filed an appeal with the Board mainly arguing the merits of
the action and asserting that the Board had jurisdiction over her appeal under
5 C.F.R. §§ 315.805-.806. IAF, Tab 1 at 5, Tab 5 at 4-8. She requested a
hearing. IAF, Tab 1 at 2. Among other things, she questioned why the notice of
termination did not include the reason for termination or indicate whether her
reply had been considered or evaluated. IAF, Tab 1 at 5, Tab 5 at 4.
¶4 The administrative judge dismissed the appeal for lack of jurisdiction
without holding the requested hearing. IAF, Tab 10, Initial Decision (ID) at 1.
While acknowledging that the termination decision letter did not specifically
indicate that the agency considered or evaluated the appellant’s reply, he
concluded that her claims that her reply had not been considered were “pro forma,
conclusory allegations short of the nonfrivolous allegation threshold.”
ID at 14-15. He ultimately determined that the appellant received all the
procedural protections set forth under 5 C.F.R. § 315.805, including that her reply
had been provided to the decision maker and given bona fide consideration. Id.
The appellant has filed a petition for review, mostly asserting the same arguments
3
she did before the administrative judge. Petition for Review (PFR) File, Tab 1.
The agency has responded, and the appellant has replied. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
Remand is appropriate because the appellant has nonfrivolously alleged that the
agency did not consider her reply to the notice of proposed termination.
¶5 A probationary employee with less than 1 year of current continuous service
has no statutory right to appeal her termination. See 5 U.S.C. § 7511(a); Rivera
v. Department of the Navy, 114 M.S.P.R. 52, ¶ 4 (2010). However, as relevant
here, 5 C.F.R. § 315.806(c) creates a regulatory right of appeal to the Board when
a probationary employee alleges that an agency terminated her for reasons, in
whole or in part, arising before appointment without complying with the
procedural requirements of 5 C.F.R. § 315.805. Rivera, 114 M.S.P.R. 52, ¶ 4. 2
Pursuant to 5 C.F.R. § 315.805, a probationary employee is entitled to the
following: (a) advance written notice of the reasons for the proposed action; (b) a
reasonable time to file a written answer and supporting affidavits, which the
agency must consider in reaching its decision; and (c) written notification of the
agency’s final decision at the earliest practicable date, but no later than at the
time the action will become effective, informing the employee of the reasons for
the action and appeal rights. The Board has held that, to be entitled to a
jurisdictional hearing in an appeal by a probationary employee who has been
terminated for alleged preappointment reasons, the appellant must make a
nonfrivolous allegation that the agency’s procedures were not in accordance with
5 C.F.R. § 315.805. Graham v. Department of Justice, 50 M.S.P.R. 285, 288
(1991); see also Walker v. Department of the Army, 119 M.S.P.R. 391, ¶ 6 (2013)
(holding that, if an appellant makes a nonfrivolous allegation of jurisdiction, but a
determination cannot be made based on the documentary evidence, the Board
2
We agree with the administrative judge that the appellant has not alleged that her
termination was based on partisan political reasons or marital status. ID at 14; see
5 C.F.R. § 315.806(b).
4
should hold an evidentiary hearing to resolve the jurisdictional question). It is
undisputed that the agency terminated the appellant, at least in part, based on
preappointment conditions. ID at 14; IAF, Tab 8 at 32. For the following
reasons, we find that the appellant has nonfrivolously alleged facts entitling her
to a jurisdictional hearing over her probationary termination pursuant to 5 C.F.R.
§ 315.806.
¶6 In her petition for review, the appellant reasserts her concern that the final
termination letter does not indicate that the agency considered her reply. PFR
File, Tab 1 at 4, 7-8; IAF, Tab 1 at 5, Tab 5 at 4-6. Indeed, the termination letter
neither mentions the appellant’s reply nor indicates that the agency considered it.
IAF, Tab 8 at 24-25. The December 9, 2022 notice of proposed termination
instructed the appellant to submit her reply, if any, directly to the HR Director,
who, as the designated deciding official, would give it her full and impartial
consideration before making a written decision. Id. at 32. On the same day, the
appellant emailed her reply to the HR Director. Id. at 27-28. It appears that the
HR Director forwarded the appellant’s email on December 20, 2022, at 11:32
a.m., to “Debra D.” Id. at 27. Shortly afterwards, at 12:06 p.m., Debra D.,
Acting Executive Assistant to the HR Director, sent an email to a few agency
personnel, including the HR Director, another person, and a “Deborah I.,” stating
that “Debbie has reviewed this on [the HR Director’s] behalf. Please proceed
with the termination next week.” Id. On December 28, 2022, the agency issued a
decision terminating the appellant. Id. at 24-25. The email thread indicates that
the HR Director did not review the appellant’s reply but that “Debbie” reviewed
it on her behalf. However, it is not clear whether “Debbie” means Debra D.,
Deborah I., or some other individual, or what role that person had at the agency.
Nor is it established whether the reply was properly considered by an agency
official with authority to render a decision on the appellant’s termination. We
find it necessary to remand this appeal for the administrative judge to determine
these issues. See Walker, 119 M.S.P.R. 391, ¶ 12 (remanding to determine
5
whether the deciding official with proper authority to effect the termination
without subsequent ratification did so before the appellant completed 1 year of
current continuous service); Vandewall v. Department of Transportation,
52 M.S.P.R. 150, 155 (1991) (remanding to determine whether the appellant had
been terminated during her probationary period, to include finding whether the
deciding official had the authority to terminate the appellant); Ward v.
Department of the Navy, 44 M.S.P.R. 493, 499 (1990) (agreeing that 5 C.F.R.
§ 315.805(b) ordinarily requires that the agency give bona fide consideration to a
probationary employee’s response to a notice of proposed discharge). The agency
asserts that it fulfilled the requirements of 5 C.F.R. § 315.805. PFR File, Tab 3
at 4-5. Yet, the evidence in the record is not sufficiently detailed or corroborative
of the agency’s bare assertions, and, in any event, we will not weigh evidence or
resolve conflicting assertions at this stage. See Milanak v. Department of
Transportation, 90 M.S.P.R. 219, ¶ 10 (2001).
¶7 Therefore, we find that the appellant is entitled to a jurisdictional hearing
on remand for the administrative judge to determine if the agency failed to follow
the procedure outlined in section 315.805(b). If he does so find, the Board’s
jurisdiction would be established under section 315.806(c). See Keller v.
Department of the Navy, 69 M.S.P.R. 183, 188 (1996) (holding that the agency’s
failure to follow the procedures set forth at 5 C.F.R. § 315.805 in effecting the
appellant’s termination constitutes grounds for Board review). In an appeal under
section 315.806(c), the merits of the agency’s decision to terminate the
probationer are not before the Board. 3 Hope v. Department of the Army,
108 M.S.P.R. 6, ¶ 7 (2008). Rather, the administrative judge must then
adjudicate whether the appellant can demonstrate by a preponderance of the
evidence that the agency’s failure to follow the procedural requirements of
3
As regards the merits of the appellant’s termination, including her claim of
defamation, the administrative judge correctly determined that the merits of the
termination are not before the Board. ID at 13; PFR File, Tab 1 at 6-7.
6
section 315.805 was harmful error. Id., ¶¶ 7-8; Keller, 69 M.S.P.R. at 188-89.
Harmful error cannot be presumed. Hope, 108 M.S.P.R. 6, ¶ 8. If there was
harmful error, then the agency’s action must be set aside. Id., ¶ 7. An agency
commits harmful error only when the record shows that the error was likely to
have caused the agency to reach a conclusion different from the one it would have
reached in the absence or cure of the error. Id., ¶ 8. The burden remains with the
appellant to demonstrate harmful error by preponderant evidence. Id.
The appellant’s remaining arguments are unavailing.
¶8 The appellant asserts that the final termination notice did not give reasons
for the termination as required by 5 C.F.R. § 315.805(c). PFR File, Tab 1 at 8;
IAF, Tab 5 at 4. Though the final termination notice did not spell out the reasons
for the termination, it did state that the decision to terminate had been made in
connection with the December 9, 2022 letter, which had given her advance notice
of the proposed termination due to conditions arising before her appointment.
IAF, Tab 8 at 24. The December 9, 2022 letter explained the reasons for the
proposed termination in detail. Id. at 32. We find that the agency sufficiently
informed the appellant of the reasons for termination as required by 5 C.F.R.
§ 315.805(c).
¶9 To the extent the appellant is arguing that she is constitutionally entitled to
more due process, PFR File, Tab 1 at 7-9; IAF, Tab 5 at 7, Tab 6 at 18, Tab 9
at 5, her argument is unsuccessful because she is a probationary employee, see
Pope v. Department of the Navy, 62 M.S.P.R. 476, 479 (1994) (holding that the
appellant, as a probationer, was not a public employee who could only be
removed for cause, and thus, her right to pretermination process was not based on
the Constitution; rather, her pretermination procedural rights were based entirely
on 5 C.F.R. § 315.805). Unlike the appellant, who is a probationer with less than
1 year of service, a Federal Government employee who has completed her
probationary period is afforded a number of protections, including, under many
circumstances, the right to appeal adverse actions to the Board. See 5 U.S.C.
7
§§ 7511, 7513. Probationary employees, such as the appellant, do not, however,
have the same procedural rights and may appeal to the Board only under very
limited circumstances. See Rivera, 114 M.S.P.R. 52, ¶ 4; 5 C.F.R. § 315.806.
ORDER
¶10 For the reasons discussed above, we remand this case to the Western
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.