                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     ROBIN R. MCFARLAND,                             DOCKET NUMBER
                   Appellant,                        PH-315H-14-0578-B-1

                  v.

     DEPARTMENT OF HEALTH AND                        DATE: February 13, 2015
       HUMAN SERVICES,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Robin R. McFarland, Harrisburg, Pennsylvania, pro se.

           Roger L. Gumbs, Jr., Baltimore, Maryland, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of the remand initial decision,
     which dismissed her termination appeal for lack of jurisdiction and denied her
     request for corrective action under the Uniformed Services Employment and
     Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333)

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     (USERRA). 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 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 and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

                                       BACKGROUND
¶2        The appellant filed a Board appeal challenging her termination and
     requesting corrective action under USERRA. Initial Appeal File (IAF), Tab 1.
     The administrative judge dismissed the appeal for failure to prosecute. IAF, Tab
     13, Initial Decision. The appellant filed a petition for review of that decision.
     The Board vacated the decision and remanded the case for further adjudication
     because there had been an issue with mailed service of Board orders (and possibly
     the agency file) due to an incorrect address for the appellant in Board records.
     Petition for Review File, Tab 4, Remand Order. On remand, the appellant waived
     any right she had to a hearing. Remand Appeal File (RAF), Tab 20 at 4. Thus,
     the administrative judge based the remand initial decision solely on the written
     record.   RAF, Tab 23, Remand Initial Decision (RID).            He dismissed the
     appellant’s termination appeal for lack of jurisdiction and denied corrective
     action under USERRA.       RID.    The appellant has filed a petition for review
                                                                                            3

     challenging the remand initial decision.       Remand Petition for Review (RPFR)
     File, Tab 1. The agency has not filed a response.

                      DISCUSSION OF ARGUMENTS ON REVIEW
     The administrative judge properly dismissed the appellant’s termination appeal
     for lack of jurisdiction.
¶3         The Board’s jurisdiction is not plenary; it 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 appellant bears
     the burden of proving, by preponderant evidence, that the Board has jurisdiction
     over her appeal. 2       5 C.F.R. § 1201.56(a)(2)(i).    In order to establish Board
     jurisdiction under 5 U.S.C. chapter 75, an individual must, among other things,
     show that she satisfies one of the definitions of “employee” in 5 U.S.C.
     § 7511(a)(1).        5    U.S.C.   §   7513(d);   Walker    v.   Department     of   the
     Army, 119 M.S.P.R. 391, ¶ 5 (2013). For an individual in the competitive service,
     this means that she must either: (1) not be serving a probationary or trial period
     under an initial appointment; or (2) have completed 1 year of current continuous
     service under other than a temporary appointment limited to 1 year or less. 3 5
     U.S.C. § 7511(a)(1)(A); Walker, 119 M.S.P.R. 391, ¶ 5. The administrative judge
     properly found that the Board lacks jurisdiction over the appeal because the
     appellant was serving a probationary period and she had not completed at least 1
     year of federal service. RID at 6-7.

     2
      A preponderance of the evidence is the degree of relevant evidence that a reasonable
     person, considering the record as a whole, wou ld accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
     3
       Individuals in the competitive service who do not satisfy the definition of “employee”
     under 5 U.S.C. § 7511(a)(1)(A) may nevertheless have the right to appeal a term ination
     to the Board under 5 C.F.R. § 315.806 based upon assertions that: (1) the employee was
     discriminated against based on her marital status; (2) the agency action was based on
     partisan political reasons; or (3) the agency action was based (in whole or part) on pre-
     appointment reasons and the agency did not follow the procedures of 5 C.F.R.
     § 315.805. Walker, 119 M.S.P.R. 391, ¶ 5. However, the appellant makes no such
     assertions and we therefore need not address this regulatory right to appeal.
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¶4        On review, the appellant contends, as she did below, that she was not a
     probationary employee because: (1) her Standard Form (SF) 50 previously
     showed that she was a permanent employee, but was illegally changed; (2) she
     was told by an agency employee that she would not have to serve a probationary
     period; and (3) the job announcement for her position did not necessarily require
     a probationary period. RPFR File, Tab 1 at 3-4; see RAF, Tab 20 at 3-4. The
     appellant also argues that the probationary period should be waived because she
     has prior state government service. RPFR File, Tab 1 at 3.
¶5        First, regarding the appellant’s argument concerning her SF-50, an
     employee’s SF–50, although the customary document used to memorialize a
     personnel action, is not controlling as to the nature of the employee’s
     appointment. Scott v. Department of the Air Force, 113 M.S.P.R. 434, ¶ 8 (2010).
     Rather, the Board looks to the totality of the circumstances in determining the
     nature of the appointment. Id. The appellant argues that one of the copies of her
     SF-50 stated that her tenure group was “permanent.” RPFR File, Tab 1 at 3. The
     SF-50’s submitted by the agency, including the appointment SF-50, RAF, Tab 6
     at 10, and the corrected general adjustment SF-50, id. at 11, reflect that the
     appellant’s tenure group was “conditional.” The appointment SF-50 also reflects
     that the appellant had no prior federal civilian service. Id. at 10. Accordingly,
     based upon the totality of the circumstances, and regardless of any apparent
     mistaken SF-50, we find that the appellant was a probationer.
¶6        Next, the appellant again argues that she should not be required to serve a
     probationary period both because the job announcement for her position stated
     that the position “may” require a probationary period and because an agency
     employee told her that her position did not require a probationary period. We
     agree with the administrative judge that these arguments are not persuasive. RID
     at 6-7; see, e.g., RPFR File, Tab 1 at 3-4.     Where a probationary period is
     required, it cannot be waived by the parties. Cunningham v. Department of the
     Army, 119 M.S.P.R. 147, ¶ 5 (2013). Therefore, regardless of the appellant’s
                                                                                        5

     interpretation of the job announcement or the alleged statement of an agency
     employee,   the appellant     was required     to    serve   a   probationary period.
     See 5 C.F.R. § 315.801(e).
¶7        Lastly, the appellant asserts that the probationary period should be waived
     because of her prior state government service. RPFR File, Tab 1 at 3. However,
     there is nothing in the law that allows for waiver of the probationary period based
     upon nonfederal service.      The Board therefore lacks jurisdiction over the
     appellant’s termination appeal.

     The administrative judge properly denied corrective action under USERRA.
¶8        In order to prevail on the merits in a USERRA claim, there must be an
     initial showing by the employee, by preponderant evidence, that the employee’s
     military status was at least a motivating or substantial factor in the agency action.
     Strausbaugh v. Government Printing Office, 117 M.S.P.R. 566, ¶ 11, aff’d, 493 F.
     App’x 61 (Fed. Cir. 2012). Here, the appellant asserts that a coworker stated that
     management officials believed they were forced to hire combat veterans, planned
     on getting rid of these individuals as quickly as possible, and believed that
     combat veterans were “damaged goods.” RPFR File, Tab 1 at 5; see RAF, Tab 5
     at 3, Tab 12 at 3-4, Tab 20 at 4. We agree with the administrative judge that
     these allegations alone do not meet the appellant’s burden of proof concerning her
     USERRA claim, and we therefore find that the administrative judge properly
     denied corrective action under USERRA.              Strausbaugh, 117 M.S.P.R. 566,
     ¶¶ 12-13 (finding that the appellant presented no evidence that his military
     service was a motivating factor in his termination).

                     NOTICE TO THE APPELLANT REGARDING
                        YOUR FURTHER REVIEW RIGHTS
          You have the right to request review of this final decision by the United
     States Court of Appeals for the Federal Circuit. You must submit your request to
     the court at the following address:
                                                                                  6

                          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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
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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.
