Pablo Ramos-Torres v. Department of Veterans Affairs ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PABLO ENRIQUE RAMOS-TORRES, DOCKET NUMBER
Appellant, NY-315H-17-0040-I-1
v.
DEPARTMENT OF VETERANS DATE: June 29, 2022
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Pablo Enrique Ramos-Torres, Vega Baja, Puerto Rico, pro se.
Ana M. Margarida, San Juan, Puerto Rico, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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
¶2 The appellant appealed the agency’s action terminating him from his GS -07
Legal Administrative Specialist position for unacceptable conduct during his
probationary period. Initial Appeal File (IAF), Tab 1 at 1, 3, 6-9. He did not
request a hearing. Id. at 2. He contended that the agency committed harmful
error in deciding to terminate him, that the decision was based on a prohibited
personnel practice, and that it was not in accordance with law. Id. at 3. The
administrative judge gave the appellant notice of the elements and burdens he
must meet to establish jurisdiction over his probationary termination appeal. IAF,
Tab 2. In his response, the appellant argued that the agency committed harmful
error because it removed him in less than 2 hours and failed to give him the
procedural protections set forth in 5 C.F.R. § 315.805. IAF, Tab 3 at 5-7. He
argued that a collective bargaining agreement required the agency to give him
those procedural protections as well as counseling regarding his allegedly
unsatisfactory performance. Id. The agency responded in opposition to the
appellant’s appeal. IAF, Tab 5.
3
¶3 The administrative judge issued an initial decision, dismissing the appeal
for lack of jurisdiction and finding that the appellant did not meet the statutory
definition of an “employee” under 5 U.S.C. § 7511(a)(1)(A)(i) with appeal rights
to the Board. IAF, Tab 8, Initial Decision (ID) at 4. He also found that the
appellant failed to show, or even allege, that he had comp leted the 1 year of
current, continuous service under other than a temporary appointment required for
the Board to have jurisdiction over the appeal under 5 U.S.C.
§ 7511(a)(1)(A)(ii). 2 ID at 4-5. The administrative judge further found that the
Board lacked jurisdiction over the appeal under 5 C.F.R. § 315.806(b) because the
appellant failed to make a nonfrivolous allegation that his termination was based
on partisan political reasons or marital status discrimination, or that his
termination was based in whole or in part on a preappointment reason such that he
was entitled to, but failed to receive, the procedural protections set forth in
5 C.F.R. § 315.805. ID at 5-6. The administrative judge also rejected the
appellant’s claims that the agency committed harmful error or engaged in a
prohibited personnel practice, finding that neither claim was an independent
source of Board jurisdiction. ID at 6-7.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 In his petition for review, the appellant argues that the agency terminated
him for preappointment reasons and failed to afford him the procedural
2
Before the appellant’s September 2016 appointment to the position at issue, IAF,
Tab 3 at 21, 26, Congress enacted the National Defense Authorization Act for Fiscal
Year 2016 (2016 NDAA) on November 25, 2015, Pub. L. No. 114-92, 129 Stat. 726.
The 2016 NDAA amended the definition of an “employee” under 5 U.S.C.
§ 7511(a)(1)(A)(ii). Pub. L. No. 114-93, §1105, 129 Stat. at 1023-24. This amendment
affects individuals appointed to permanent positions in the competitive service at the
Department of Defense; section 7511(a)(1)(A)(ii) is unchanged as it pertains to the
appellant. See id. Thus, the administrative judge’s citing to the previous version of the
provision is harmless error. IAF, Tab 2 at 3 n.3; ID at 2; see Panter v. Department of
the Air Force, 22 M.S.P.R. 281, 282 (1984) (explaining that an adjudicatory error that
is not prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision).
4
protections set forth in 5 C.F.R. § 315.805, which he claims violated his right to
due process. Petition for Review (PFR) File, Tab 1 at 4-5. We disagree. The
record reflects that the agency terminated the appellant during his probationary
period for postappointment reasons. IAF, Tab 1 at 7-9. It is undisputed that the
agency appointed the appellant to his position on September 4, 2016, subject to a
1-year probationary period. Id. at 7. Subsequently, on November 3, 2016, before
the end of his probationary period, the agency terminated him for unacceptable
conduct that took place during an altercation on October 24, 2016 . Id.; IAF,
Tab 3 at 29.
¶5 To the extent that the appellant continues to argue that he was terminated
for preappointment reasons due to his status as a law school graduate, we agree
with the administrative judge that the appellant failed to nonfrivolously allege
that he was terminated because of a condition arising before his appointment. ID
at 5-6. As the administrative judge properly explained, the Board distinguishes
between a preexisting condition and the effect th at condition has on an
employee’s performance during his probationary period. ID at 6; see, e.g.,
Von Deneen v. Department of Transportation, 33 M.S.P.R. 420, 423, aff’d,
837 F.2d 1098 (Fed. Cir. 1987). Thus, even if the appellant’s status as a law
school graduate indirectly caused or contributed to the October 24, 2016
altercation, the agency ultimately terminated him for his conduct during the
altercation and not his law school degree. See Rivera v. Department of the Navy,
114 M.S.P.R. 52, ¶ 8 (2010) (finding that the appellant’s failure to secure
approval for a Government credit card, even if attributable to preappointment
credit problems, constituted a postappointment reason for termination).
¶6 Concerning the appellant’s argument regarding the agency’s alleged
violation of the collective bargaining agreement, we agree with the administrative
judge that the Board lacks jurisdiction over this matter absent an otherwise
appealable action. ID at 6-7; see Hurston v. Department of the Army,
113 M.S.P.R. 34, ¶ 11 (2010) (finding that, because the Board has no jurisdiction
5
over the probationary termination appeal, the Board also has no independent
jurisdiction to adjudicate the appellant’s discrimination and harmful error
claims).
¶7 Finally, the appellant notes several errors in the initial decision, such as
typographical errors (e.g., citing 5 U.S.C. § 7313(b) rather than 5 U.S.C.
§ 7513(b)) and the occasional use of the wrong gender when referring to the
appellant. PFR File, Tab 1 at 5-6. However, none of these errors provide a basis
for disturbing the administrative judge’s decision to dismiss the appeal for lack of
jurisdiction. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282
(1984). Similarly, the appellant’s contentions concerning the statements of a
colleague regarding the appellant’s law degree do not establish that the agency
terminated him for preappointment reasons or cast doubt on the administrative
judge’s analysis of the appeal. ID at 5. Accordingly, we deny the appellant’s
petition for review.
NOTICE OF APPEAL RIGHTS 3
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
3
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 matte r.
6
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).
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.
7
(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. ____ , 137 S. Ct. 1975 (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:
8
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 appea ls of
competent jurisdiction. 4 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).
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
9
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
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 Feder al
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.