Opinion

DaVitta Zekoll v. Department of the Army

Court: Merit Systems Protection Board
Filed: May 31, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DA VITTA N. ZEKOLL, DOCKET NUMBER

Appellant, DE-315H-19-0165-I-1

DEPARTMENT OF THE ARMY, DATE: May 31, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Janice L. Jackson , Leavenworth, Kansas, for the appellant.

Kristine H. Bell , Esquire, Fort Leavenworth, Kansas, 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 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 application of

the law to the facts of the case; the administrative judge’s rulings during either

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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).

BACKGROUND

Effective January 8, 2018, the agency appointed the appellant to the

competitive-service position of Medical Support Assistant. Initial Appeal File

(IAF), Tab 10 at 12-13. The Standard Form (SF) 50 documenting her

appointment indicated her appointment was subject to the successful completion

of a 2-year probationary period. Id. Before the end of her probationary period,

however, the agency terminated her from her position for failure to demonstrate

the conduct required for retention in the Federal service, effective March 8, 2019.

Id. at 17; IAF, Tab 1 at 7-11.

The appellant appealed her termination to the Board and requested a

hearing. IAF, Tab 1. The administrative judge notified her that the Board may

not have jurisdiction over her appeal because probationary employees appointed

on or after November 26, 2015, to permanent positions in the competitive service

in the Department of Defense (DOD) who have less than 2 years of current,

continuous service have limited rights of appeal to the Board . IAF, Tab 3 at 2-5.

He apprised her of the ways in which she could establish jurisdiction over her

appeal and ordered her to file evidence and argument on the jurisdictional issue.

Id. In response, the appellant argued that she was not a probationary employee

because she completed a probationary period when she served in a

non-appropriated fund (NAF) position with the agency from September 11, 2014,

through August 7, 2015, and that, pursuant to a DOD Interchange Agreement, she

was not required to serve another one. IAF, Tab 8 at 6-7, 9-16. She further

appeared to argue that her prior private sector employment at an agency

contractor from March 9, 2015, through August 26, 2016, should count towards

completion of her probationary period because she performed the same duties. Id.

at 7, 18-19. The agency moved to dismiss the appeal for lack of jurisdiction,

arguing that the appellant’s prior Federal and private sector employment could

not be credited towards completion of her probationary period and that she did

not meet the definition of an employee with the statutory right to appeal her

termination to the Board. IAF, Tab 10 at 4-11. Without holding the appellant’s

requested hearing, the administrative judge issued an initial decision dismissing

the appeal for lack of jurisdiction. IAF, Tab 11, Initial Decision (ID).

The appellant has filed a petition for review of the initial decision, and the

agency has responded. Petition for Review (PFR) File, Tabs 1, 3.

ANALYSIS

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). Under 5 U.S.C. chapter 75,

subchapter II, an individual who meets the definition of “employee” at 5 U.S.C.

§ 7511(a)(1) generally has the right to challenge her removal from Federal service

by filing an appeal with the Board. Maibaum v. Department of Veterans Affairs ,

116 M.S.P.R. 234, ¶ 9 (2011). At the time of the appellant’s appointment to her

position, an individual appointed to a permanent competitive-service position

after November 25, 2015, at DOD was subject to a 2-year probationary period and

only qualified as an “employee” under 5 U.S.C. § 7511(a)(1)(A)(ii) if she had

completed 2 years of current continuous service. 10 U.S.C. § 1599e(a), (b)(1)(A),

(d), note (repealed 2022); Bryant v. Department of the Army, 2022 MSPB 1, ¶ 8. 2

The appellant bears the burden of proving the Board’s jurisdiction by

preponderant evidence. 3 5 C.F.R. § 1201.56(b)(2)(i)(A).

In the initial decision, the administrative judge found that the appellant did

not satisfy the first definition of a competitive-service “employee” because she

was serving a probationary period at the time of her termination. ID at 3 -5. In so

finding, he determined that her prior service could not count towards completion

of her probationary period because she had a break in service of more than

30 days between her appointments. ID at 4-5. On review, the appellant does not

challenge the administrative judge’s finding that the break in service precludes

her prior employment from counting towards completion of her probationary

period, PFR File, Tab 1, and we discern no basis to disturb it, see 5 C.F.R.

§ 315.802(b) (providing that prior Federal civilian service counts toward

completion of a probationary period if, among other requirements, the prior

service was “followed by no more than a single break in service that does not

exceed 30 calendar days”). The appellant reiterates her argument, however, that

she was not serving a probationary period at the time of her termination because

she completed a probationary period while serving in her NAF position and was

therefore not required to serve another one pursuant to the DOD Interchange

Agreement. 4 IAF, Tab 8 at 7; PFR File, Tab 1 at 5.

On December 27, 2021, President Biden signed into law the National Defense

Authorization Act for Fiscal Year 2022 (2022 NDAA), Pub. L. No. 117-81, 135 Stat.

1541. The 2022 NDAA repealed the 2-year probationary period for DOD appointments

made on or after December 31, 2022, and replaced it with a 1 -year probationary period.

Pub. L. No. 117-81, § 1106, 135 Stat. 1541, 1950. That change does not affect the

outcome of this appeal.

Preponderant evidence is that degree of relevant evidence that a reasonable person,

considering the record as a whole, would accept as sufficient to find that a contested

fact is more likely true than untrue. 5 C.F.R. § 1201.4(q).

The administrative judge did not explicitly address this argument in the initial

decision. Even if such omission was error, however, it was harmless because it did not

affect the outcome of the appeal. See Panter v. Department of the Air Force,

22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory error that is not prejudicial to

The DOD Interchange Agreement permits Federal agencies to

noncompetitively appoint NAF employees to career or career -conditional

competitive service appointments and provides, among other things, that

employees appointed under the agreement who have previously completed a

probationary period are not required to serve a new one. See Department of

Defense Instruction (DODI) 1400.25, Volume 1403, DOD Civilian Personnel

Management System: [NAF] Employment, Enclosure 3, paragraph 8(a) &

Appendix (Mar. 20, 2015). 5 The appellant, however, has not provided any

evidence reflecting that she was appointed pursuant to the DOD Interchange

Agreement. 6 Moreover, she would not have been eligible for an appointment

under the agreement in January 2018 because she was not currently holding a

competitive service or NAF position, nor had she been “involuntarily separated

from such appointment without personal cause within the preceding year.” Id.

Accordingly, we discern no basis to disturb the administrative judge’s

determination that the appellant was a probationary employee at the time of her

termination and thus was not an employee with appeal rights under

section 7511(a)(1)(A)(i).

The appellant did not argue below that she met the second definition of

employee set forth in section 7511(a)(1)(A), and the administrative judge did not

address it. For the first time on review, however, she appears to argue that she

a party’s substantive rights provides no basis for reversal of an initial decision).

Although the parties did not submit a copy of DOD Interchange Agreement into the

record, they both referenced it in their pleadings. IAF, Tab 8 at 7, Tab 10 at 10.

Accordingly, we take official notice of the DOD Interchange Agreement, which is

publicly available in the Appendix to Enclosure 3 of DODI 1400.25 at

https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/140025/140025_vol1403.

pdf (last visited May 30, 2024). See Willingham v. Department of the Navy,

118 M.S.P.R. 21, ¶ 18 (2012) (taking official notice of a publicly available Department

of Defense Instruction).

The SF-52 requesting the appellant’s appointment and the SF-50 documenting her

appointment reflect that she was appointed pursuant to the authority of 5 C.F.R.

§ 315.612, which provides for the noncompetitive appointment of certain military

spouses. IAF, Tab 8 at 22, Tab 10 at 13.

qualifies as an employee under this section because she had 1 year of current

continuous service at the time of her termination. 7 PFR File, Tab 1 at 5. She

contends that section 1599e of title 10, which increased the current continuous

service requirement in section 7511(a)(1)(A)(ii) from 1 year to 2 years, did not

apply to her because she was appointed to her NAF position before November 25,

2015. Id. We find no merit to this argument. Section 1599e applied to any

individual who, like the appellant, was appointed to a permanent position within

the competitive service at DOD after November 25, 2015. 8 10 U.S.C. § 1599e(b)

(1)(A), (d), note (repealed 2022); IAF, Tab 10 at 12. The fact that the appellant

was appointed to, and resigned from, a non-competitive service position at DOD

before November 25, 2015, does not remove her January 8, 2018

competitive-service appointment from coverage by section 1599e. IAF, Tab 8

at 10-16; Tab 10 at 12. Accordingly, to qualify as an employee with Board

appeal rights under section 7511(a)(1)(A)(ii), the appellant must show that she

completed at least 2 years of current continuous service in the competitive service

without a break in Federal civilian employment of a workday. See 10 U.S.C.

§ 1599e(d) (repealed 2022); Hurston v. Department of the Army, 113 M.S.P.R.

34, ¶ 9 (2010). Because she served only 14 months in the competitive service

preceding her termination, she does not meet the definition of employee set forth

in section 7511(a)(1)(A)(ii).

Even when a probationary employee in the competitive service does not

have a statutory right of appeal, she may nonetheless have a regulatory right of

appeal if she nonfrivolously alleges that her termination was based on partisan

political reasons or marital status or if her termination for preappointment reasons

was not effected in accordance with the appropriate procedures. Harris v.

Department of the Navy, 99 M.S.P.R. 355, ¶ 6 (2005); 5 C.F.R. §§ 315.805-.806.

Although the appellant did not raise this argument below, we will address it because

the issue of jurisdiction is always before the Board. See Ney v. Department of

Commerce, 115 M.S.P.R. 204, ¶ 7 (2010)

The agency is a component of DOD. 10 U.S.C. § 111(b)(6).

In the initial decision, the administrative judge found that the appellant did not

raise such argument, despite being apprised of her right to do so, and thus

concluded that the Board did not have jurisdiction pursuant to 5 C.F.R.

§§ 315.805-.806. ID at 5-6; IAF, Tab 3 at 3. The appellant has not challenged

this finding on review, PFR File, Tab 1, and we discern no basis to disturb it.

In light of the foregoing, we find that the administrative judge properly

dismissed this appeal for lack of jurisdiction.

NOTICE OF APPEAL RIGHTS 9

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.

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

the notice of review rights included in final decisions to provide a comprehensive

summary of all available review options. As indicated in the notice, the Board cannot

advise which option is most appropriate in any matter.

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).

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

¶1 (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. 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