                       NOTE: This disposition is nonprecedential.

  United States Court of Appeals for the Federal Circuit
                                        2009-3179


                                     VIVIAN ARNOLD,

                                                                Petitioner,

                                             v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                                 Respondent.


      Vivian Arnold, of Fayetteville, North Carolina, pro se.

      Sara B. Rearden, Attorney, Office of the General Counsel, Merit Systems Protection
Board, of Washington, DC, for respondent. With her on the brief were B. Chad Bungard,
General Counsel, and Keisha Dawn Bell, Deputy General Counsel.

Appealed from: Merit Systems Protection Board
                       NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                       2009-3179


                                   VIVIAN ARNOLD,


                                                              Petitioner,

                                            v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                              Respondent.

             Petition for review of the Merit Systems Protection Board in
             DC315H080788-I-1.

                           ____________________________

                              DECIDED: January 8, 2010
                           ____________________________


Before LOURIE, SCHALL and BRYSON, Circuit Judges.

PER CURIAM.

                                       DECISION

      Vivian Arnold appeals the final decision of the Merit Systems Protection Board

(“the Board”) affirming the initial decision of the administrative judge (“AJ”) dismissing

her appeal for lack of jurisdiction. Arnold v. Dep’t of the Army, MSPB Docket No. DC-

315H-08-0788-I-1 (Dec. 9, 2008) (“Initial Decision”), Arnold v. Dep’t of the Army, MSPB

Docket No. DC-315H-08-0788-I-1 (April 7, 2009) (“Final Decision”).          Because the

Board’s finding was in accordance with law and was based on findings supported by

substantial evidence, we affirm.
                                      BACKGROUND

       The Department of the Army (“the Army”) appointed Arnold to the position of

Medical Support Assistant at a Health Clinic in Fort Bragg, North Carolina in 2007,

where she had worked as a contract employee for eight years. Her employment by the

Army was subject to a one-year probationary period. Approximately two weeks before

the probationary period had run, Arnold received a discharge notice, citing “failure to

follow leave procedures, failure to follow instructions regarding duty hours, and general

attitude.”

       Arnold appealed her discharge to the Board, alleging racial discrimination.

Following two show cause orders from the AJ, which explained that the appeal rights of

probationary employees are limited to “non-frivolous claim[s] that [] termination was

based on partisan political reasons or marital status,” Arnold included an allegation of

discrimination based on her marital status. Specifically, Arnold alleged that married

employees did not have to follow the leave procedures that she was required to follow,

and that her termination was therefore the result of discrimination based on her status

as a single parent. Arnold alleged that she was denied time off to attend to childcare

responsibilities that was allowed married parents.          Arnold also argued that her

termination violated the procedures set forth in 5 C.F.R. § 315.805.

       The AJ issued an initial decision dismissing Arnold’s appeal for lack of

jurisdiction.   The initial decision found that Arnold had not presented specific, non-

frivolous allegations that married persons were treated less harshly for similar

misconduct. In so finding, the AJ noted that there were three bases for termination:

failure to follow leave policies, failure to follow duty hours, and general attitude, and that

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                                         -2-
Arnold’s allegations only addressed her alleged failure to follow leave policies. Arnold

had not alleged that married employees who failed to follow duty hours or had a similar

attitude as she did had been disciplined differently. The AJ also found that there was

insufficient evidence that the failure to follow leave policies that led to Arnold’s

termination was related to her childcare duties. Although Arnold alleged that married

employees were allowed to leave work to pick up children, or to make up time without

following leave procedures, the only evidence on file regarding Arnold’s failure to

properly request leave did not relate to childcare; rather, the evidence showed that

Arnold had requested her annual leave by phone rather than requesting it in advance.

       The AJ also found that Arnold made no allegations supporting her claim that the

Army failed to follow 5 C.F.R. § 315.805. That regulation requires certain procedural

actions by the agency when an employee is removed based on conditions arising

before their appointment.    However, because Arnold had made no allegation that the

Army was removing her for pre-appointment reasons, the AJ found that her claim of a

violation of 5 C.F.R. § 315.850 could not support jurisdiction either.

       Lastly, the AJ found that the Board could not reach the evidence presented by

Arnold to support her allegation that she had been removed for race-based reasons.

The AJ stated that “because the Board lacks jurisdiction over [Arnold’s] removal during

her probationary period, the Board also lacks jurisdiction over her claim of race

discrimination.” Initial Decision at 6 (citing Awa v. Dep’t of Navy, 41 M.S.P.R. 318, 322

(M.S.P.B. 1989).




2009-3179

                                         -3-
       Arnold appealed to the full Board. The Board found that there was no new

evidence presented and the AJ made no error interpreting laws or regulations, and

therefore affirmed the initial decision. Final Decision at 2.

       Arnold timely appealed to this court. Our jurisdiction in appeals from the Merit

Systems Protection Board rests on 28 U.S.C. § 1295(a)(9) (2006).

                                       DISCUSSION

       The scope of our review in an appeal from a Board decision is limited. We can

set aside the Board’s decision if it was “(1) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law; (2) obtained without procedures required by

law, rule, or regulation having been followed; or (3) unsupported by substantial

evidence.” 5 U.S.C. § 7703(c) (2006); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d

1307, 1311 (Fed. Cir. 2003).

       The Board's jurisdiction to hear appeals from probationary employees terminated

for post-appointment reasons is defined in 5 C.F.R. § 315.806. Arnold has the burden

of proving by a preponderance of evidence that the Board has jurisdiction over the

action being appealed. See 5 C.F.R. § 1201.56(a)(2).

       Arnold contests the determination of the Board, arguing that the Board should

have considered evidence submitted after the initial complaint when reviewing the

administrative judge’s dismissal for lack of jurisdiction. Arnold specifically points to a

formal complaint of racial discrimination filed with the Equal Employment Opportunity

Commission (“EEOC”) regarding Arnold’s supervisor at Clark.

       The government responds that the Board considered all the documentary

evidence in the record, and that Arnold has not met her burden of producing evidence

2009-3179

                                         -4-
that the Board has jurisdiction over her appeal. The government argues that Arnold did

not allege that married employees were treated differently for failing to follow leave

procedures or similar misconduct. See Chase-Baker v. U.S. Dep’t of Justice, 198 F.3d

843, 845 (Fed. Cir. 1999) (a non-frivolous allegation of marital status discrimination

requires factual assertions of a difference in the treatment of married and unmarried

employees). The government further argues that Arnold did not allege that married

employees had failed to comply with instructions regarding duty hours or had similar

work attitudes but were not disciplined by the Army. The government argues that, in

any event, the record evidence is not sufficient to support such an allegation. Lastly,

the government argues that because none of Arnold’s allegations relates to conditions

arising before her appointment, 5 C.F.R. § 315.805 is inapplicable.

      We agree that the Board lacks jurisdiction over Arnold’s claim. Because Arnold

was a probationary employee at the time of her termination, the bases on which she can

appeal her termination are strictly limited. The Board’s determination that Arnold has

not alleged sufficient facts to make out a claim of marital status discrimination is

supported by substantial evidence and is in accordance with law. The Board examined

all the evidence in the record and properly found that Arnold’s allegations regarding the

grant of leave for childcare purposes for married versus single parents did not relate to

the “failure to follow leave procedures” for which she was notified she was being

terminated. Nor did Arnold allege that married employees were disciplined differently

for the other behaviors for which she was notified she was being terminated. Arnold

also did not allege that she was terminated for conditions arising before her

appointment such that the Board would have jurisdiction under 5 C.F.R. § 315.805.

2009-3179

                                       -5-
Although the court is aware of the EEOC complaint in the record regarding racial

discrimination, the Board does not have jurisdiction over such a complaint in the case of

dismissal of an employee during her probationary period.

      Accordingly, we affirm the Board’s dismissal of this matter for lack of jurisdiction.

                                         COSTS

      No costs.




2009-3179

                                        -6-
