                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     THOMAS F. SWEENEY,                              DOCKET NUMBER
                  Appellant,                         DC-0752-15-0060-I-1

                  v.

     DEPARTMENT OF                                   DATE: September 23, 2016
       TRANSPORTATION,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Thomas F. Sweeney, Frederick, Maryland, pro se.

           Michael Doherty, Esquire, Washington, D.C., 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 his appeal 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. Except as expressly MODIFIED by
     this Final Order to address the appellant’s due process allegations, we AFFIRM
     the initial decision.

                                      BACKGROUND
¶2         The appellant was employed as a Developmental Air Traffic Control
     Specialist (ATCS) at the agency’s Washington Air Route Traffic Control Center
     (ARTCC).     The agency’s training review board (TRB) met on December 6-7,
     2012, to evaluate the training of several employees, including the appellant.
     Initial Appeal File (IAF), Tab 18, Exhibit (Ex.) O. Although training deficiencies
     were identified for the appellant, the TRB decided to continue his training but
     with specific training recommendations to address his performance issues. Id.
     The appellant’s training was subsequently suspended on February 22, 2013,
     resulting in another TRB meeting on April 11, 2013.         Id., Ex. P.    The TRB
     determined that the appellant’s deficiencies had not been resolved by the
     additional training and that he could not achieve the necessary certification, and
     thus, it recommended that his training be discontinued.        However, the TRB
     further recommended that the appellant “be given strong consideration for
     reassignment to a lower level facility, as per agency directives.” Id.
                                                                                       3

¶3         The agency notified the appellant in a memorandum dated April 15, 2013,
     that his training was being terminated due to unsatisfactory performance in Radar
     Controller Training, Stage IV. IAF, Tab 16, Ex. D. The memorandum advised
     the appellant that, in accordance with the Employment Policy for Air Traffic
     Control Specialist in Training—EMP‑1.14—he could discuss the matter with the
     Support Manager for Training and, within 7 calendar days from receipt of
     notification, he could provide written comments regarding the proposed action.
     Id.; IAF, Tab 15, Ex. G. The appellant filed a response, and the agency issued a
     final determination on May 13, 2013, terminating his training at ARTCC. The
     appellant submitted a request for reconsideration, which the agency denied,
     noting that all TRB members had concurred with the decision to suspend his
     training. IAF, Tab 15, Exs. K, M. The agency subsequently offered the appellant
     reassignments   to   Atlantic City,   New Jersey;   Allenton,   Pennsylvania;   and
     Falmouth, Massachusetts. IAF, Tab 2 at 28. The appellant’s regional National
     Air Traffic Controllers Association was able to get a facility at Harrisburg,
     Pennsylvania, added to the appellant’s list of options and he accepted the offer to
     that location because it was closer to his home.       IAF, Tab 16, Ex. B.      In a
     memorandum dated November 29, 2013, the appellant was offered an assignment
     to the Harrisburg facility effective December 1, 2013. Id., Ex. A. The appellant
     was advised that, if he declined the agency’s offer of reassignment, his removal
     from the ATCS position and from the Federal service would be proposed. Id.
     The appellant accepted the assignment, and he was reassigned to the Harrisburg
     facility. Id.
¶4         The appellant filed a discrimination complaint with the agency, alleging
     that he was discriminated against based on his sex because his training was not
     conducted in accordance with Federal Aviation Administration (FAA) orders and
     procedures and because the agency terminated his training, transferred him to a
     lower-level facility, and reassigned him to a downgraded position. IAF, Tab 2
                                                                                     4

     at 3. The agency issued a final agency decision in which it determined that no
     discrimination had resulted. Id. at 36.
¶5        The appellant filed this appeal, alleging a reduction in grade and pay and a
     denial of a within-grade increase (WIGI). IAF, Tab 1. The appellant also alleged
     multiple deficiencies in the agency’s training program and asserted that the
     agency’s actions were the result of discrimination. In addition, he alleged that
     the agency’s decision to discontinue his training was tantamount to a constructive
     removal. IAF, Tab 7 at 5.
¶6        The administrative judge issued an order to show cause, notifying the
     parties of the elements and burdens of proof for establishing Board jurisdiction.
     IAF, Tab 4.    Because the appellant’s response raised a constructive removal
     claim, the administrative judge issued a supplemental order to show cause to
     address this claim. IAF, Tab 13. After providing the parties with the opportunity
     to respond to the orders and without holding a hearing, the administrative judge
     issued an initial decision dismissing the appeal for lack of jurisdiction.   IAF,
     Tab 21, Initial Decision (ID) at 1, 11.   Specifically, the administrative judge
     found that the appellant failed to nonfrivolously allege that he had suffered an
     appealable reduction in grade or pay or that he was denied a WIGI. ID at 6-10.
     The administrative judge also found that, absent an otherwise appealable action,
     the Board lacked jurisdiction over the appellant’s claim of sex discrimination.
     ID at 10. The appellant then filed a petition for review of the initial decision.
     Petition for Review (PFR) File, Tabs 1-2. The agency filed a response to the
     petition for review. PFR File, Tab 4.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶7        On review, the appellant argues that the Board has jurisdiction over claims
     filed by FAA employees, including performance-based actions taken under
                                                                                         5

     chapter 43. 2 PFR File, Tab 1 at 4-5, 7. Specifically, the appellant appears to be
     arguing that the termination of his training was such a performance-based action.
     However, contrary to the appellant’s assertions, the agency did not take a
     performance-based action under 5 U.S.C. § 4303 when it terminated his training.
     Thus, those procedures are not applicable here.
¶8        The appellant also asserts that he provided evidence and argument below
     showing that his reassignment, from the ATCS-2152-LG position at the ARTCC
     to the ATCS-2152-GG position in Harrisburg, was a reduction in grade and that
     the administrative judge erred in finding otherwise. PFR File, Tab 1 at 8-10.
     The appellant argues that, because he was reduced in grade and pay, the
     administrative judge erred by dismissing this appeal for lack of Board
     jurisdiction. Id. However, as the administrative judge correctly found, there is
     no evidence that the appellant was reduced in grade and pay.          Moreover, the
     administrative judge correctly found that, even if the appellant was subjected to a
     reduction in grade and pay, the record reflects that the appellant voluntarily
     accepted the reassignment in lieu of removal after he failed to complete the
     agency’s training requirements. IAF, Tab 16.
¶9        To the extent the appellant reiterates his claim that his reassignment was
     involuntary because agency policy did not provide him any option of remaining in
     his current duty station after his training was terminated, PFR File, Tab 1 at 8-11,
     we disagree. A choice between unpleasant alternatives does not render a decision
     to accept the agency’s proposal involuntary.       Soler-Minardo v. Department of
     Defense, 92 M.S.P.R. 100, ¶ 9 (2002) (finding that the fact that the appellant was
     faced with either a demotion or a possible removal did not render his acceptance
     of the agency’s proposal involuntary). Here, the appellant does not submit any
     evidence or argument suggesting that his acceptance of the reassignment to the

     2
      The appellant on review does not challenge the administrative judge’s finding that he
     was not denied a WIGI, and we therefore need not disturb this finding.
                                                                                               6

      ATCS‑2152-GG       position     was   based      on   misinformation.      Cf.    Wright v.
      Department of Transportation, 99 M.S.P.R. 112, ¶ 10 (2005) (observing that the
      appellant’s assertion that he accepted a position based on agency misinformation
      regarding the nature of the reassignment and its effect on his base pay constituted
      a nonfrivolous allegation that the appellant’s reduction in pay was involuntary).
      Thus, as the administrative judge correctly found, the appellant failed to
      nonfrivolously allege that he suffered an appealable reduction in grade and pay.
¶10        The    appellant    also   asserts   that    the   agency   engaged     in    ex parte
      communications 3 in connection with the decision to terminate his training, and
      thus violated his right to due process. The appellant asserts that he raised this
      claim below and that the administrative judge failed to address it in the initial
      decision. PFR File, Tab 1.
¶11        Pursuant to 5 U.S.C. § 7701(c)(2), an agency’s adverse action “may not be
      sustained . . . if the employee or applicant for employment shows harmful error in
      the application of the agency’s procedures in arriving at such decision[.]”
      Reversal of an agency’s action is therefore required where an appellant
      establishes that the agency committed a procedural error that likely had a harmful
      effect on the outcome of the case before the agency. Goeke v. Department of
      Justice, 122 M.S.P.R. 69, ¶ 7 (2015). Here, the record reflects that the appellant
      attempted to file a new Board appeal concerning this same action by submitting a
      pleading in which he raised due process arguments. IAF, Tab 19. Rather than
      docketing this pleading as a new appeal, the administrative judge noted that the
      appellant was alleging that the agency’s actions in this case resulted in due
      process violations, and she entered the pleading into the record in the instant
      appeal.   IAF, Tab 20.    However, while the administrative judge submitted the

      3
         An ex parte communication is a communication between one party and the
      decision-maker where the other party is not present and not given the opportunity to
      present his or her side of the argument.        Stone v. Federal Deposit Insurance
      Corporation, 179 F.3d 1368, 1372‑73 (Fed. Cir. 1999).
                                                                                            7

      pleading into the record, she neglected to address the appellant’s due process
      arguments in the initial decision.        Nonetheless, because we now address the
      appellant’s due process arguments, the administrative judge’s failure to do so
      was not prejudicial to the appellant’s substantive rights, and it provides no basis
      for   reversal   of   the   initial   decision.   Panter   v.   Department    of   the
      Air Force, 22 M.S.P.R. 281, 282 (1984).
¶12         The appellant asserted below and on review that the agency’s proposal
      notice informing him that the TRB had recommended termination of his training
      is a de facto decision notice, rather than a proposal notice, “because it was
      obvious” from the notice that the decision already had been made to terminate his
      training. PFR File, Tab 2; IAF, Tab 7 at 15. Specifically, the appellant argues
      that the agency failed to provide him the opportunity to respond to the proposed
      adverse action prior to receiving the de facto decision notice and prior to his
      being placed in a duty assignment with the Plans & Programs Office. PFR File,
      Tab 1 at 5‑6.    Thus, the appellant contends that this resulted in the agency
      violating both agency procedures and his due process right to a 30‑day advance
      written notice of the agency’s action against him. Id.
¶13         It appears that the appellant’s argument is based on his belief that the
      agency’s decision to terminate his training constitutes an appealable adverse
      action. However, 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).          In this case, the
      Board does not have jurisdiction over an agency’s decision to terminate an
      employee’s training. Nor does it have jurisdiction over the agency’s rules and
      procedures for required training and the process and the implementation of those
      procedures. Thus, any error by the administrative judge in failing to address this
      argument is harmless, as it provides no basis for reversal of the initial decision.
                                                                                        8

¶14        In any event, even if we were to find that the Board has jurisdiction over
      this appeal, we would find no merit to the appellant’s claim that the agency
      violated his right to due process of law. Due process is a fundamental principle
      of law that ensures that legal proceedings will be fair and that citizens will be
      given notice of the proceedings and an opportunity to be heard before the
      Government deprives them of life, liberty, or property. The U.S. Constitution
      guarantees due process and applies to the property interest of public employment
      in which the Government has demonstrated that there is cause to remove or
      suspend an employee.      See Gilbert v. Homar, 520 U.S. 924, 935-36 (1997)
      (suspension); Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541
      (1985) (removal). The appellant seems to argue that, under the U.S. Court of
      Appeals   for   the   Federal   Circuit’s   decisions   in   Ward v.   U.S.   Postal
      Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011), and Stone v. Federal Deposit
      Insurance Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir. 1999), his right to due
      process was violated by ex parte communications between the TRB and the
      instructors and supervisors who were interviewed by the TRB. PFR File, Tab 1
      at 5-6. Ward and Stone stand for the proposition that a deciding official violates
      an employee’s due process rights when he relies upon new and material ex parte
      information as a basis for his decision on the merits of a proposed charge or the
      penalty to be imposed. See Mathis v. Department of State, 122 M.S.P.R. 507, ¶ 6
      (2015). In this case, the appellant received a copy of the TRB report, along with
      the April 15, 2013 memorandum from the Air Traffic Manager notifying him of
      his training status being terminated due to unsatisfactory performance.         The
      memorandum advised the appellant that he could submit a reply within 7 days.
      IAF, Tab 16, Ex. D. The appellant supplied a written response on April 23, 2013.
      IAF, Tab 15, Ex. H. In his May 13, 2013 memorandum finalizing the decision to
      terminate the appellant’s training, the Air Traffic Manager specifically mentioned
      that he considered the appellant’s written reply. Id., Ex. I. In addition, the TRB
      merely convened to consider and ultimately recommend terminating the
                                                                                     9

      appellant’s training. IAF, Tab 18, Subtabs O, P. The TRB did not propose or
      recommend discipline. Indeed, there was no proposed action or discipline in this
      case. Rather, the appellant accepted a reassignment in lieu of a removal action.
      Thus, the appellant was not deprived of any property interest. Therefore, whether
      the agency committed harmful error or violated the appellant’s due process rights
      by implementing its training requirements and TRB process is of no consequence
      in this appeal.
¶15         Based on the foregoing, we discern no basis for disturbing the
      administrative judge’s finding that the appellant failed to make a nonfrivolous
      allegation of an involuntary reduction in grade or pay.        See Henderson v.
      Department of the Treasury, 61 M.S.P.R. 61, 65 (1994).         Accordingly, the
      administrative judge properly dismissed the appeal for lack of jurisdiction
      without holding a hearing. See id. The initial decision, as supplemented by this
      Final Order, constitutes the Board’s final decision in this matter.     5 C.F.R.
      § 1201.113.

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the U.S.
      Court of Appeals for the Federal Circuit. You must submit your request to the
      court at the following address:
                                   U.S. 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
                                                                                 10

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 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 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 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 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:                               ______________________________
                                             Jennifer Everling
                                             Acting Clerk of the Board
Washington, D.C.
