Cynthia White v. Department of Housing and Urban Development ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CYNTHIA V. WHITE, DOCKET NUMBER
Appellant, DC-315I-16-0852-I-1
v.
DEPARTMENT OF HOUSING AND DATE: May 19, 2022
URBAN DEVELOPMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Susan L. Kruger, Esquire, Washington, D.C., for the appellant.
Elan Cameron, Washington, D.C., for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 agency appointed the appellant to a GS-15 Supervisory Budget Analyst
position effective October 4, 2015, and, based on her subsequent performance,
terminated her supervisory position and demoted her to a nonsupervisory GS-14
Budget Analyst position, effective July 26, 2016. Initial Appeal File (IAF), Tab 8
at 19, 33, 34-35. In her timely appeal of the agency’s action, the appellant argued
that, because she was not serving in an initial probationary period and the agency
did not inform her of the requirement to serve a supervisory probationary period,
the agency improperly failed to provide her with the procedures required by
5 U.S.C., chapters 43 and 75. IAF, Tab 1 at 6.
¶3 The administrative judge advised the appellant of the elements and burdens
of establishing jurisdiction over her appeal, i.e., that she was not serving in a
supervisory probationary period or that she was entitled to the limited right of
appeal set forth in 5 C.F.R. § 315.908(b). IAF, Tab 2. In response, the appellant
asserted that: (1) nothing required the agency to advise her of a requirement for
her to serve a supervisory probationary period, but she interpreted the comments
on her Standard Form 50 (SF-50) to be a determination that her prior supervisory
3
service satisfied any such requirement; (2) the regulations allowed tacking of her
prior supervisory service to satisfy the requirement; and (3) without discovery,
she was unable to answer whether the agency had any policy regarding the use of
prior experience to except an employee from the requirement of a supervisory
probationary period. IAF, Tab 16, at 4-6. She also argued that the agency did not
contend that she was serving a probationary period until after it became
dissatisfied with her performance. Id. at 7.
¶4 Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 1 at 2,
Tab 18, Initial Decision (ID). She first found that the appellant was required to
serve a supervisory probationary period and that the agency’s alleged failure to
advise her of the requirement to do so did not waive the requirement. ID at 4-7.
The administrative judge then found that the appellant failed to make a
nonfrivolous allegation that she had completed her supervisory probationary
period prior to transferring to the position at issue here, finding her prior
experience in several positions insufficient to be counted toward completing the
required supervisory probationary period. ID at 7-8. Thus, based on her findings
that the appellant failed to nonfrivolously allege that she had completed a
supervisory probationary period, and that the appellant failed to allege that the
agency demoted her based on marital status discrimination or partisan political
reasons, the administrative judge dismissed the appeal for lack of jurisdiction.
ID at 9.
¶5 In her petition for review, the appellant reiterates the arguments she made
below, contending that she was not required to serve a supervisory probationary
period because of her prior supervisory experience. Petition for Review (PFR)
File, Tab 1 at 4; IAF, Tab 16 at 4-6. She also argues that there is an agency
policy permitting the use of prior experience to satisfy the requirement of a
supervisory probationary period and that she should have been permitted
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discovery on the issue. PFR File, Tab 1 at 4-5, 8. The agency responds in
opposition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 To be entitled to a jurisdictional hearing, an appellant need only raise
nonfrivolous allegations that the Board has jurisdiction over her appeal. Garcia
v. Department of Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006). A
nonfrivolous allegation is an assertion that, if proven, could establish the matter
at issue. 5 C.F.R. § 1201.4(s). Under 5 U.S.C. § 3321, an individual serving in
an initial appointment as a supervisor or manager in the competitive service is
required to serve a probationary period. Burton v. Department of the Air Force,
118 M.S.P.R. 210, ¶ 7 (2012). An individual in the competitive service who has
been promoted to a supervisory position and who does not satisfactorily complete
the probationary period, “shall be returned to a position of no lower grade and
pay than the position from which the individual was . . . promoted.” 5 U.S.C.
§ 3321(b); see 5 C.F.R. § 315.907(a). Employees reassigned under these
provisions have no appeal right to the Board unless they allege that the agency’s
action is based on partisan political affiliation or marital status. See Burton,
118 M.S.P.R. 210, ¶ 7.
The appellant failed to present a nonfrivolous allegation that she was not subject
to a supervisory probationary period, that she had completed such a probationary
period, or that her reassignment resulted from partisan political affiliation or
marital status.
¶7 An “initial appointment as a supervisor” does not “become[ ] final” until
the appointee completes a supervisory probationary period. 5 U.S.C. § 3321(a);
Levy v. Department of Labor, 118 M.S.P.R. 619, ¶ 11 (2012). The regulations
implementing 5 U.S.C. § 3321(a) provide that an employee “is required to serve a
probationary period prescribed by the agency upon initial a ppointment to a
supervisory . . . position.” 5 C.F.R. § 315.904(a); see Levy, 118 M.S.P.R. 619,
¶ 11. An employee who was promoted to a supervisory position and does not
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satisfactorily complete the supervisory probationary period “shall be returned to a
position of no lower grade and pay than the position from which the individual
was . . . promoted.” 5 U.S.C. § 3321(b); Levy, 118 M.S.P.R. 619, ¶ 11. A return
to a lower-graded position under such circumstances is not appealable to the
Board as an adverse action under 5 U.S.C. §§ 7512(3) and 7513(d). Levy,
118 M.S.P.R. 619, ¶ 11. When, as here, the facts suggest that the appellant would
have been a probationary supervisor at the time of the alleged reduction in grade,
the appellant must show that she was not required to serve a supervisory
probationary period or that she completed such a probationary period before the
reduction in grade to establish jurisdiction. Id.¶8 We agree with the administrative judge that the appellant was required to
serve a supervisory probationary period. ID at 4, 6; see 5 U.S.C. § 3321; 5 C.F.R.
§§ 315.901, .904(a). Moreover, the record reflects that the agency gave the
appellant notice of this requirement in the September 25, 2015 welcome l etter it
sent to her before she reported for duty and in a corrected SF -50 it processed
contemporaneously with the other SF-50 the appellant submitted with her initial
appeal. IAF, Tab 8 at 19, 33, Tab 1 at 8. We also agree that the appellant failed
to make a nonfrivolous allegation that she completed her supervisory
probationary period, either in the Supervisory Budget Analyst position or prior to
transferring into it. ID at 7. The administrative judge found that only one of the
appellant’s former positions, a Senior Financial Analyst position at the
Department of Transportation (DOT), required a supervisory probationary period,
but the appellant served for less than a year in the position. ID at 2-3, 7. We
agree with the administrative judge that the appellant’s service at DOT does not
count toward the supervisory probationary period here because she did not
transfer to the Supervisory Budget Analyst position directly from her supervisory
position at DOT. ID at 7; IAF, Tab 6 at 38, Tab 8 at 19, 33; see 5 C.F.R.
§ 315.906(a).
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¶9 The administrative judge also found that the appellant failed to
nonfrivolously allege that her service was creditable under agency policy as
provided in 5 C.F.R. § 315.906(d). ID at 7-8. In her petition for review, the
appellant argues that the agency presented contradictory information regarding
such a policy and that the administrative judge should have permitted discovery
to address the issue. PFR File, Tab 1 at 8. Nevertheless, the record reflects that
the administrative judge gave the parties notice of the Board’s discovery
procedures in her acknowledgment order, and it does not reflect that the
appellant, who was represented by counsel in this proceeding, filed a motion to
compel discovery before the record closed on the jurisdictional issue. IAF, Tab 2
at 4-5, Tab 11 at 5. Because the appellant did not file a motion to compel
discovery, she has failed to preserve the issue for the Board’s review. See Szejner
v. Office of Personnel Management, 99 M.S.P.R. 275, ¶ 5 (2005), aff’d, 167 F.
App’x 217 (Fed. Cir. 2006).
¶10 Moreover, the declarations the appellant cites in her petition for review do
not conflict but instead address two different issues. In one declaration, the
declarant states that the agency has no policy of its own regarding the use of prior
service in this context and instead relies on the provisions set forth in the Code of
Federal Regulations. IAF, Tab 17 at 45-46 (declaration of L.H.). The other
declarant specifically asserts that, under guidance from the Office of Personnel
Management, he determined that the appellant’s individual experience as a code 7
team leader at the Consumer Products Safety Commission was insufficient to
waive the supervisory probationary requirement. IAF, Tab 9 at 10-11
(declaration of B.G.), 13, 24, Tab 6 at 40. Neither declarant indicates or
identifies that the agency has a policy regarding whether service is creditable in
situations when an employee has failed to complete a probationary period.
5 C.F.R. § 315.906(d). Thus, we agree with the administrative judge that the
agency did not have a policy to make the service in the appellant’s prior
incomplete supervisory probationary period creditable for tacking that service to
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her most recent service for the purpose of complet ing her supervisory
probationary period. ID at 7-8.
¶11 Accordingly, we find that the administrative judge correctly dismissed the
appeal based on the written record without holding a hearing. See Garcia,
437 F.3d at 1344.
NOTICE OF APPEAL RIGHTS 2
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 th e 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
2
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 matter.
8
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 partic ular
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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
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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 th eir 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
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(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. 3 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
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.
3
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.
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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.