Brenda Harper v. Department of the Army ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRENDA HARPER, DOCKET NUMBER
Appellant, CH-315H-21-0395-I-1
v.
DEPARTMENT OF THE ARMY, DATE: September 14, 2022
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Brenda Harper, Clarksville, Tennessee, pro se.
Katherine E. Griffis, Esquire, Fort Campbell, Kentucky, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of an agency action separating her from Federal service as
moot. For the reasons discussed below, we GRANT the 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 Central Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 On May 26, 2020, the appellant was appointed to the position of Medical
Support Assistant with the agency. Initial Appeal File (IAF), Tab 5 at 14. As a
preference eligible in the excepted service, see id., she was required to complete
1 year of service to meet the statutory definition of an “employee,” see 5 U.S.C.
§ 7511(a)(1)(B)(i). On July 16, 2021, the agency issued the appellant a “Notice
of Termination during Probationary Period,” asserting that it was terminating her
during her probationary period for unsatisfactory performance or conduct. IAF,
Tab 5 at 30-35. The agency also issued the appellant a Standard Form 50
(SF-50), reflecting that, effective July 16, 2021, the appellant was terminated
during her probationary period. IAF, Tab 1 at 36.
¶3 Thereafter, the appellant appealed the action to the Board. IAF, Tab 1.
During her appeal, she claimed that the agency’s July 16, 2021 action was due to
discrimination on the basis of disability and age. IAF, Tab 25. Also, while the
appeal was pending before the administrative judge, the agency rescinded the
termination action, took steps to return the appellant to a position at the same
grade and level of pay as the position she held prior to the separat ion action,
restored her leave and other benefits, and provided her with all applicable back
pay. IAF, Tab 10, Tab 23 at 16, Tab 36 at 4-5. Thereafter, the administrative
judge issued a notice of intent to dismiss the appeal as moot, providing the
appellant with an opportunity to object or to express opposition to a dismissal.
IAF, Tab 37. The appellant did not respond to the notice.
¶4 On December 1, 2021, the administrative judge issued an initial decision
dismissing the appeal as moot. IAF, Tab 38, Initial Decision (ID) at 1.
Specifically, she reiterated the steps taken by the agency to restore the a ppellant
to the status quo ante prior to the July 16, 2021 separation, ID at 2-3, reasoning
that, because the agency completely rescinded the action after the appeal was
3
filed, the appeal was rendered moot, thereby divesting the Board of jurisdiction,
ID at 2. Because she determined that the Board lacked jurisdiction over the
appeal, she concluded that the appellant’s discrimination claims would be
“returned to the agency for processing as a nonmixed discrimination complaint.”
ID at 4 n.1.
¶5 The appellant has filed a petition for review of the initial decision,
requesting that the Board hear her discrimination claims. Petition for Review
(PFR) File, Tab 1 at 4-10. The agency has not responded to the appellant’s
petition for review. 2
DISCUSSION OF ARGUMENTS ON REVIEW
The agency’s separation action against the appellant is a removal under 5 U.S.C.
§ 7701, and not a probationary termination.
¶6 As explained above, the agency issued the appellant a Notice of
Termination during Probationary Period and an SF-50 reflecting a termination
during a probationary or trial period. IAF, Tab 1 at 34, Tab 5 at 30-35. However,
the appellant’s appointment began on May 26, 2020, and under 5 U.S.C.
§ 7511(a)(1)(B)(i), she met the statutory definition of an employee after 1 year of
service. IAF, Tab 5 at 14. Thus, the agency’s separation action, effective
July 16, 2021, was taken after the appellant became an employee. IAF, Tab 1
at 34. Because, at the time of the separation action, the appellant was a
preference eligible in an excepted-service position who had completed 1 year of
current continuous service in the same or similar position in an Executive a gency,
she was an “employee” and thus had Board appeal rights. 3 See IAF, Tab 1 at 34,
2
The appellant has also filed a motion for leave to submit additional information or
documentation. PFR File, Tab 3. Because the parties will have an opportunity to
further develop the record on remand, we find it unnecessary to rule on the appellant’s
motion for leave.
3
The agency’s characterization of the appellant’s separation as a probationary
termination does not control the appellant’s legal status. See Grigsby v. Department of
Commerce, 729 F.2d 772, 774-76 (Fed. Cir. 1984) (explaining that an SF-50 does not
4
Tab 5 at 14; 5 U.S.C. § 7511(a)(1)(B)(i). Thus, we find that the Board has
jurisdiction over her removal. 5 U.S.C. §§ 7512(1), 7513(d).
The agency’s rescission of the appellant’s removal does not render the appeal
moot.
¶7 As noted above, the administrative judge concluded that, because the
agency rescinded the removal action, the appeal was rendered moot. ID at 2-3.
However, an appeal of an action over which the Board has jurisdiction , such as
the removal action at issue here, is not moot even when the agency effects a
complete rescission of the action as long as there is s ome possible, effectual relief
that could be granted to the appellant. See, e.g., Lamberson v. Department of
Veterans Affairs, 80 M.S.P.R. 648, ¶¶ 12-14, 36 (1999) (finding that, because the
Board initially had jurisdiction over the appeal of the removal action, the
agency’s post-appeal rescission of that action did not render the appeal moot and
the Board retained jurisdiction to adjudicate the appellant’s claims of
discrimination and retaliation). Specifically, in Hess v. U.S. Postal Service,
124 M.S.P.R. 40, ¶ 8 (2016), the Board recognized that an appellant’s claims of
discrimination may result in compensatory damages, and an appeal in which such
claims are raised is not rendered moot by an agency’s rescission or cancellation
of an adverse action. Thus, although the agency rescinded the removal action, the
appellant nonetheless had outstanding discrimination claims at issue in her
appeal. Accordingly, we find that the appeal is not moot and that the
administrative judge must address the appellant’s discrimination claims on
remand. See Hess, 124 M.S.P.R. 40, ¶ 8; Lamberson, 80 M.S.P.R. 648, ¶¶ 12-14,
36.
control an employee’s legal status). Rather, the statutory language of 5 U.S.C.
§ 7511(a)(1)(B)(i) controls her legal status.
5
ORDER
¶8 For the reasons discussed above, we remand this case to the Central
Regional Office for further adjudication in accordance with this Remand Order.
On remand, the administrative judge shall hold the appellant’s requested hearing
but may limit the subject matter to issues deemed relevant on remand. IAF, Tab 1
at 2.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.