UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CASSANDRA DENISE SMITH, DOCKET NUMBER
Appellant, CH-315H-16-0421-I-1
v.
DEPARTMENT OF LABOR, DATE: January 6, 2017
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Cassandra Denise Smith, Mount Sterling, Kentucky, pro se.
Dorothy J. Stephens, Esquire, Chicago, Illinois, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only when: 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 contra st, 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
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).
¶2 On May 31, 2015, the appellant received a career conditional appointment
to the competitive service position of a GS-0991-09 Workers’ Compensation
Claims Examiner, subject to the satisfactory completion of a 1 -year probationary
period. Initial Appeal File (IAF), Tab 1 at 1, Tab 3 at 1, 6. In May 2016, 2 prior
to the completion of her probationary period, she was terminated for performance
deficiencies. IAF, Tab 1 at 4, Tab 3 at 1-3, 6. The appellant filed the instant
appeal defending her performance and alleging that she was separated from the
agency for not meeting unrealistic expectations. IAF, Tab 1 at 6.
¶3 After informing the appellant of her jurisdictional burden and providing her
an opportunity to respond, the administrative judge issued an initial decision that
dismissed the appeal for lack of jurisdiction, finding that the appellant did not
meet the statutory definition of an “employee” under 5 U.S.C. § 7511(a)(1)(A).
IAF, Tab 2 at 2-4, Tab 9, Initial Decision (ID) at 3. The appellant has filed a
petition for review. Petition for Review (PFR) File, Tab 1. She argues that the
administrative judge ignored her substantive arguments, but does not make any
2
There appears to be a discrepancy regarding the effective date of termination. The
appellant’s Standard Form 50 indicates that the effective termination date was May 27,
2016, IAF, Tab 3 at 6, while the Notice of Termination states that the effective date of
termination was May 23, 2016, id. at 1. Both dates are within the 1-year probationary
period and would result in the same analysis and outcome.
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arguments relating to Board jurisdiction. Id. at 3-4. The agency has responded to
the appellant’s petition, arguing that she has not submitted any evidence or
argument that would support a reversal of the initial decision and reasserting that
she was terminated before the completion of her probationary period. PFR File,
Tab 3 at 2‑4.
¶4 There is no dispute that the appellant was appointed to her position on
May 31, 2015, subject to a 1-year probationary period. ID at 2; IAF, Tab 3 at 1.
She was terminated approximately 1 week before the expiration of the
probationary period. ID at 2; IAF, Tab 3 at 6. Thus, it is undisputed that the
appellant was terminated while still serving her probationary period. Moreover,
the appellant does not allege that she had any prior Federal service that would
amount to 1 year of current continuous service, pursuant to 5 U.S.C.
§ 7511(a)(1)(A)(ii). Additionally, the administrative judge found, and we agree,
that the appellant did not allege that her termination was based on preappointment
reasons, partisan political reasons, or marital status, thus foreclosing a possible
regulatory right to an appeal. ID at 3; see 5 C.F.R. § 315.806. Because the
appellant failed to make a nonfrivolous allegation that she was not serving a
probationary period at the time of her removal or that she had any prior Federal
service amounting to 1 year of current continuous service, we agree with the
administrative judge’s finding that the appellant is not an “employee” within the
meaning of 5 U.S.C. § 7511(a)(1)(A). As such, the appellant has no appeal rights
before the Board. Accordingly, we find no basis to disturb the initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
U.S. Court of Appeals for the Federal Circuit. You must submit your reques t to
the court at the following address:
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United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, 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
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Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.