                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CELINA R. GUISINGER,                            DOCKET NUMBER
                    Appellant,                       DE-315H-15-0061-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: February 4, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

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

           Anne E. Hinkebein, Esquire, Fort Leavenworth, Kansas, 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 her appeal of her probationary termination 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     the law to the facts of the case; the 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.           See
     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, and based on the
     following points and authorities, 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. Except as expressly MODIFIED by
     this final order to correct a typographical error about a date noted in the initial
     decision, we AFFIRM the initial decision. 2
¶2             The agency terminated the appellant from her appointment as a Clinical
     Psychologist, GS-0180-13, on November 3, 2014, during the first year of that
     appointment. Initial Appeal File (IAF), Tab 1 at 1, 4, Tab 3 at 4. A preference
     eligible, she was appointed on March 10, 2014, to a career-conditional position in
     the competitive service subject to a 1-year probationary period. IAF, Tab 6 at 6.
     Immediately prior to this appointment, she worked at the agency as a contract
     psychologist for approximately 2½ years. IAF, Tab 4 at 4. The appellant alleged
     that, at some point after her appointment, she was involved in an incident with a
     patient that ultimately led the patient to file a complaint with the agency’s
     Inspector General (IG). IAF, Tab 1 at 6. As a result, she provided information
     about her supervisor, the Chief of Behavioral Health, to the IG. Id. She also
     alleged that beginning in or around August 2014, her supervisor significantly
     increased her patient load, tasked her with conducting “special duty evaluations,”
     and did not similarly increase her colleague’s workload. Id. She additionally
     explained that, on October 23, 2013, she disclosed to unidentified persons in her
     2
       As stated below, we modify the initial decision to change a date from October 23,
     2014 to October 23, 2013. Initial Decision at 2.
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     facility’s command structure that a coworker “was creating / writing her own GS
     position / announcement with” assistance from the current and former Chiefs of
     Behavioral Health, “to give [the coworker] an unfair advantage over [the
     appellant] as [the appellant has] veteran’s preference and [the coworker] never
     served in the military.” Id. The agency stated that it terminated the appellant for
     reasons of poor performance and misconduct. Id. at 8-9. This appeal followed.
     IAF, Tab 1. The administrative judge, after specifically notifying the appellant
     about what she needed to establish to prove that the Board had jurisdiction over
     the appeal, IAF, Tab 2, found that the Board lacked jurisdiction over her
     probationary termination and dismissed the appeal, IAF, Tab 9, Initial Decision
     (ID) at 1, 7.
¶3         On review, the appellant argues that the administrative judge erred when he
     stated in the initial decision that her October 23 disclosure took place in 2014,
     and not in 2013. Petition for Review (PFR) File, Tab 1 at 4; ID at 2. 3 She also
     asserts that, at the same time, she reported “experiencing reprisal from . . . my
     former supervisor” following her future brother-in-law’s filing with the IG and
     the licensing board complaints against her former supervisor of which she had no
     prior knowledge or involvement. 4       PFR File, Tab 1 at 4.      She avers that her


     3
        Service of the Board’s acknowledgment letter for the petition for review was
     inadvertently delayed. The letter was served on September 25, 2015. PFR File, Tab 2.
     The letter states that the agency could file a response or cross-petition for review by
     October 20, 2015, and the appellant could file a reply within 10 days after the agency’s
     response was served. Id. The agency filed a timely response on October 20, 2015.
     PFR File, Tab 3. The appellant filed a reply on October 31, 2015. PFR File, Tab 4.
     The appellant’s reply is untimely filed by 1 day.          PFR File, Tab 2; 5 C.F.R.
     § 1201.114(e). She has not shown good cause for her untimely filing, nor did she
     request an extension of time in which to file. See 5 C.F.R. § 1201.114(f). The Board
     has not considered her reply. See 5 C.F.R. § 1201.114(g). In any event, her reply only
     serves to reiterate the arguments she made in her petition for review, and her
     attachments are not material to the issues now before the Board. PFR File, Tab 2
     at 6-8.
     4
       In a statement that appears to controvert this assertion, the appellant avers that she
     first learned of her future brother-in-law’s complaint “in writing” on May 26, 2015.
                                                                                            4

     former supervisor and the current Chief of Behavioral Health retaliated against
     her “through [her] GS hiring process and in [a] premeditated plan of malicious
     intent . . . to terminate [her] during [her] probationary period.”   Id.
¶4         To the extent that the appellant is seeking to correct the findings of fact, we
     adjust the relevant date from October 23, 2014 to October 23, 2013, in the initial
     decision. ID at 2; IAF, Tab 1 at 6. To the extent that she may be seeking to
     introduce new evidence in the form of two email messages that accompanied her
     petition for review, we reject her claim. PFR File, Tab 1 at 6-8. Under 5 C.F.R.
     § 1201.115, the Board will not consider evidence submitted for the first time with
     the petition for review absent a showing that it was unavailable before the record
     was closed despite the party’s due diligence.             Avansino v. U.S. Postal
     Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d). The appellant sent
     these messages, and they are dated October 23, 2013. PFR File, Tab 1 at 6-8.
     She has not explained why they were unavailable before the record closed below.
     Additionally, the messages would not change the outcome of the appeal. Newly
     submitted evidence must be of sufficient weight to warrant an outcome different
     from that of the initial decision. Russo v. Veterans Administration, 3 M.S.P.R.
     345, 349 (1980). As the administrative judge explained, he did not address the
     appellant’s allegations about the agency’s reasons for terminating her because she
     failed to show that the appeal is within the Board’s jurisdiction. ID at 2 n.1, 5-7.
¶5         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).         The Board does not have
     jurisdiction over all matters involving a Federal employee that are allegedly
     unfair or incorrect. Johnson v. U.S. Postal Service, 67 M.S.P.R. 573, 576 (1995).
     The appellant bears the burden of proof to establish the Board’s jurisdiction over
     her appeal. 5 C.F.R. § 1201.56(a)(2)(i).

     PFR File, Tab 1 at 4-5. However, she supplies with her petition an email message she
     sent on October 23, 2013, which mentions the complaint. Id. at 6.
                                                                                      5

¶6        Persons who do not meet the definition of “employee” under 5 U.S.C.
     § 7511 have only limited Board appeal rights when they are terminated from
     Federal service. See Niemi v. Department of the Interior, 114 M.S.P.R. 143, ¶ 9
     (2010).   Under 5 U.S.C. § 7511, an employee in the competitive service is a
     person (i) who is not serving a probationary or trial period under an initial
     appointment; or (ii) who has completed 1 year of current continuous service under
     other than a temporary appointment limited to 1 year or less.             5 U.S.C.
     § 7511(a)(1)(A). If an appellant in a competitive service position does not meet
     one of these definitions of employee, she does not have a statutory right to appeal
     her termination.    See Niemi, 114 M.S.P.R. 143, ¶ 9; Liu v. Department of
     Agriculture, 106 M.S.P.R. 178, ¶ 6 (2007) (citing McCormick v. Department of
     the Air Force, 307 F.3d 1339, 1341-42 (Fed. Cir. 2002)).        Instead, she may
     exercise a regulatory right of appeal if any of three circumstances apply: (1) she
     was discriminated against on account of her marital status; (2) she was
     discriminated against based on partisan political affiliation; or (3) the agency
     action was based on issues that arose preappointment and the required procedures
     were not followed. Niemi, 114 M.S.P.R. 143, ¶ 9; 5 C.F.R. § 315.806.
¶7        The appellant’s appointment was subject to a year-long probationary period
     starting on March 10, 2014.     IAF, Tab 6 at 6.    She was terminated effective
     November 3, 2014. IAF, Tab 3 at 4. The probationary period was in effect at the
     time of her termination. She thus would not meet the definition of “employee”
     set forth in 5 U.S.C. § 7511(a)(1)(A)(i).
¶8        The appellant’s primary argument below pertained to the definition of
     “employee” in 5 U.S.C. § 7511(a)(1)(A)(ii).     She argued that her service as a
     contract psychologist without a break in service before her appointment should
     count for the purpose of “tacking,” allowing her to have “completed 1 year of
     current continuous service under other than a temporary appointment limited to
     1 year or less.” IAF, Tab 4; see 5 U.S.C. § 7511(a)(1)(A)(ii); see, e.g., Smart v.
     Department of Justice, 113 M.S.P.R. 393, ¶¶ 12-15 (2010).            Her previous
                                                                                       6

      employer, however, was a private corporation, Professional Performance
      Development Group, Inc., and not a Federal agency.        IAF, Tab 4 at 4, Tab 7
      at 5-6. Current continuous service involves uninterrupted employment with the
      same Federal agency.        Smart, 113 M.S.P.R. 393, ¶¶ 12, 14-15; 5 C.F.R.
      § 315.802(b)(1).
¶9         Because the appellant does not meet either of the statutory definitions, she
      would have limited appeal rights if she had nonfrivolously alleged that her
      termination was based on marital status discrimination or partisan political
      reasons. See McCormick, 307 F.3d at 1341 n.2; 5 C.F.R. § 315.806(b). However,
      she did not allege either of these circumstances during the proceeding before the
      administrative judge.    On review, the appellant argues that, because she is
      presently in a common law marriage with her fiancé, the agency discriminated
      against her based on her marital status. She did not assert this argument below.
      IAF, Tabs 4, 8. The Board will not consider an argument raised for the first time
      in a petition for review absent a showing that it is based on new and material
      evidence not previously available despite the party’s due diligence.      Banks v.
      Department    of   the   Air Force,   4 M.S.P.R.   268,   271   (1980);   5 C.F.R.
      § 1201.115(d). The appellant has not presented any new and material evidence in
      this respect, nor has she explained why she did not raise the argument during the
      proceeding before the administrative judge.     Additionally, she has alleged no
      facts that would suggest that she was treated differently because of her marital
      status or that go to the essence of her status as a married, single, or divorced
      person.   See Marynowski v. Department of the Navy, 118 M.S.P.R. 321, ¶ 9
      (2012). Accordingly, we find that her argument is unavailing.
¶10        The appellant further states that she has filed a complaint with the Office of
      Special Counsel (OSC). PFR File, Tab 1 at 5. She asserts that her case involves
      “multiple issues . . . to include whistleblower reprisal, [equal employment
      opportunity] issues, violation of veteran’s preference, retaliation for making
      protected disclosures, and prohibited personnel practices.”     Id.   She asserts,
                                                                                   7

moreover, that she is seeking to correct unspecified “misinformation contained in
my termination letter.”      Id.   To the extent that the appellant is raising
whistleblowing claims, we note that she is currently seeking to exhaust her
administrative remedies at OSC. Id. She will have an opportunity to bring such
matters before the Board at a later time. See Yunus v. Department of Veterans
Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).

                   NOTICE TO THE APPELLANT REGARDING
                      YOUR FURTHER REVIEW RIGHTS 5
     The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request review of this final decision by the U.S. Court of Appeals for the
Federal Circuit.
      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 want to request review of the Board’s decision concerning your
claims   of   prohibited   personnel   practices   under   5 U.S.C.    § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by 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 after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose

5
  The initial decision did not afford the appellant notice of appeal rights under the
Whistleblower Protection Enhancement Act of 2012. We have provided notice of such
appeal rights herein.
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to file, be very careful to file on time. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
review in one court of appeals, you may be precluded from seeking review in any
other court.
      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 U.S. 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 U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode/htm. 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, and 11. Additional information about
other courts of appeals can be found at their respective websites, which can be
accessed through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      If you are interested in securing pro bono representation for your 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 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:                               ______________________________
                                             William D. Spencer
                                             Clerk of the Board
Washington, D.C.
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