                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                       2015 MSPB 34

                             Docket No. AT-315H-15-0196-I-1

                                   Constance A. West,
                                        Appellant,
                                             v.
                     Department of Health and Human Services,
                                          Agency.
                                       April 30, 2015

           Constance A. West, Lithonia, Georgia, pro se.

           Corey Thompson, Atlanta, Georgia, for the agency.

                                         BEFORE

                             Susan Tsui Grundmann, Chairman
                                Mark A. Robbins, Member



                                 OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed her probationary termination 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 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
                                                                                     2

     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.

                                        BACKGROUND
¶2         Effective November 17, 2013, the agency appointed the appellant to a
     GS-13 Health Scientist position, subject to a 1-year probationary period. Initial
     Appeal File (IAF), Tab 5 at 20. On October 31, 2014, while the appellant was
     still serving her probationary period, the agency notified her that she would be
     terminated from her position, effective November 13, 2014, due to her failure to
     demonstrate an acceptable level of performance. IAF, Tab 1 at 10-11.
¶3         On December 8, 2014, the appellant filed an appeal with the Board alleging
     that she was terminated for pre-appointment reasons and that the agency failed to
     afford her the procedural protections of 5 C.F.R. § 315.805. IAF, Tab 1 at 5.
     The administrative judge issued an order informing the appellant, as a
     probationary employee, of her burden to establish Board jurisdiction and ordered
     her to file evidence and argument proving that her appeal was within the Board’s
     jurisdiction. IAF, Tab 3 at 2-4.
¶4         In response, the appellant contended that her termination was based on
     conditions arising before her appointment because a memorandum from her
     supervisor to the division director recommending her termination for failure to
     demonstrate acceptable performance during her probationary period also referred
     to her supervisor’s concerns about hiring the appellant due to her lack of certain
     prior work experience. IAF, Tab 7 at 4, 6. Specifically, her supervisor noted
     that, even though a panel of senior scientists had recommended the appellant for
     the position, she had concerns about hiring her because the appellant had no
     peer-reviewed first author publications, no HIV-related publications, only one
                                                                                          3

     HIV-related poster presentation and HIV-related oral presentation, and no
     peer-reviewed publications in any subject matter since 1996.           See id. at 6.
     According to the appellant’s supervisor, she discussed these limitations with the
     appellant’s references and, despite these limitations, decided to hire the appellant
     and use the probationary period to determine her fitness for the position. See id.
¶5          Without holding the appellant’s requested hearing, the administrative judge
     issued an initial decision dismissing the appellant’s appeal for lack of
     jurisdiction. IAF, Tab 11, Initial Decision (ID). The administrative judge found
     that the appellant failed to make a nonfrivolous allegation that the agency
     terminated her for pre-appointment reasons because the agency noted the
     shortcomings in the appellant’s prior experience simply as background
     information to put her performance-based termination in context and not as
     independent reasons for her termination. ID at 5.
¶6          The appellant has filed a petition for review in which she challenges the
     administrative judge’s finding that she was not terminated for pre-appointment
     reasons. 1 Petition for Review (PFR) File, Tab 1 at 8-10, 12-13. Specifically, the
     appellant contends that the administrative judge erred in finding that her
     pre-appointment work experience deficiencies referenced in the memorandum
     recommending her termination were provided solely as context for her
     performance-based termination and not as additional reasons for her termination.
     Id.   The appellant also disputes that her performance during her probationary
     period was unsuccessful and submits, for the first time on review, an email from
     her supervisor showing positive feedback regarding her work performance, which



     1
      Although the filing deadline for the appellant’s petition for review was February 16,
     2015, the Clerk of the Board found in a February 20, 2015 notice that the February 18,
     2015 petition for review was timely filed because February 16, 2015, was a federal
     holiday and the Board’s offices were closed on February 17, 2015, due to inclement
     weather. See Petition for Review File, Tab 3.
                                                                                           4

     she contends constitutes new and material evidence. 2          See id. at 11-12, 22.
     Lastly, the appellant asserts that the administrative judge erred in failing to
     provide her with the procedural protections of 5 C.F.R. § 315.805, to which she
     claims she is legally entitled. See id. at 7-8. The agency has filed an opposition
     to the appellant’s petition, and she has filed a reply. PFR File, Tabs 4-5.

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶7         When an agency terminates a probationary employee for reasons based in
     whole or in part on conditions arising before her appointment, it must follow the
     procedures set forth in 5 C.F.R. § 315.805. A probationer whose termination is
     subject to 5 C.F.R. § 315.805 may appeal her termination to the Board on the
     ground that it was not effected in accordance with these procedural requirements.
     5 C.F.R. § 315.806(c).     In such appeals, the merits of the agency’s decision
     are not before the Board. Hope v. Department of the Army, 108 M.S.P.R. 6, ¶ 7
     (2008). Rather, if an appellant nonfrivolously alleges that she was terminated
     based in whole or part on pre-appointment reasons, and that the agency failed to
     afford her the procedural protections of 5 C.F.R. § 315.805, then the Board has
     jurisdiction to determine whether the agency, in fact, failed to follow the
     procedures of 5 C.F.R. § 315.805, and, if so, whether such procedural error was
     harmful.   See Hope, 108 M.S.P.R. 6, ¶ 7; see also Pope v. Department of the
     Navy, 62 M.S.P.R. 476, 479 (1994). If there was harmful error, the agency action




     2
       We find that this document does not constitute new and material evidence under
     5 C.F.R. § 1201.115(d) because it would not warrant an outcome different from that of
     the initial decision to the extent it relates to the merits of the agency’s termination
     action and not to the threshold issue of the Board’s jurisdiction. See Le v. U.S. Postal
     Service, 114 M.S.P.R. 430, ¶ 6 (2010); see also Kellum v. Veterans Administration,
     2 M.S.P.R. 65, 67 (1980) (finding that the sufficiency and propriety of the agency’s
     misconduct allegation concerns substantive issues that are immaterial to the appeal,
     unless the Board has jurisdiction over the probationary term ination).
                                                                                     5

     must be set aside.    Banghart v. Department of the Army, 96 M.S.P.R. 453,
     ¶ 6 (2004), aff’d, 137 F. App’x 350 (Fed. Cir. 2005).
¶8         Based upon our review of the record, we discern no reason to disturb the
     administrative judge’s well-reasoned findings that the appellant failed to
     nonfrivolously allege that the agency terminated her for pre-appointment reasons
     and that the Board therefore lacks jurisdiction over her appeal. The record below
     reflects that the agency’s stated reason for terminating the appellant was
     unsatisfactory performance during her probationary period, a post-appointment
     reason. IAF, Tab 5 at 12; see Walker v. Department of the Army, 119 M.S.P.R.
     391, ¶ 14 (2013) (finding that pre-appointment reasons, or “conditions arising
     before appointment,” include matters such as falsification of an employment
     application and omitting information during a pre-employment interview; they do
     not include post-appointment performance or conduct deficiencies). The agency
     provided supporting evidence, including a memorandum from the appellant’s
     supervisor to the division director summarizing the appellant’s failure to meet
     certain deadlines on four separate occasions as well as documentation relating to
     the appellant’s mid-year performance assessment which identified performance
     deficiencies.   IAF, Tab 5 at 16-19.    As a result, because the appellant was
     terminated for post-appointment reasons, she was not entitled to the procedural
     protections of 5 C.F.R. § 315.805.
¶9          We find unavailing the appellant’s claim that the agency’s reference to
     pre-appointment concerns about hiring her for the position in spite of her lack of
     certain qualifications shows that the agency terminated her based on conditions
     arising pre-appointment. PFR File, Tab 1 at 8-10. Notwithstanding its concerns
     regarding the appellant’s prior experience, the agency hired the appellant and
     properly used the probationary period to determine her ability to perform the job
                                                                                             6

      duties of the position. 3 Thus, we agree with the administrative judge that the
      record reflects that the agency did not terminate the appellant due to the noted
      shortcomings in her prior experience but, rather, because of her poor performance
      during her probationary period. See ID at 5.
¶10         Further,     as   the   administrative     judge   correctly   found,   the   Board
      distinguishes between a pre-existing condition and the effect that condition has
      on an employee’s performance during her probationary period. See Von Deneen
      v. Department of Transportation, 33 M.S.P.R. 420, 423, aff’d, 837 F. 2d 1098
      (Fed Cir. 1987) (Table); see also ID at 4-5. Even if the appellant’s lack of prior
      experience were an indirect factor in the termination decision, it only would be
      because of its effect on her post-appointment performance and thus would not
      constitute a pre-appointment reason.           See Rivera v. Department of the Navy,
      114 M.S.P.R. 52, ¶ 8 (2010) (even assuming that the appellant’s failure to qualify
      for a credit card was attributable to his pre-appointment credit history, his
      termination for failure to secure approval for a government credit card
      nonetheless would constitute a post-appointment reason for termination); see also
      Cunningham v. Department of the Army, 119 M.S.P.R. 147, ¶ 8 (2013) (poor
      performance caused by pre-appointment               medical condition is actually a
      post-appointment reason for termination); Holloman v. Department of the Navy,
      31 M.S.P.R. 107, 109-10 (1986) (attendance problem caused by pre-existing
      medical condition is a post-appointment reason for termination). Accordingly,
      we conclude that the administrative judge properly dismissed the appeal for lack
      of jurisdiction.

      3
        The appellant argues that there are policy reasons why there should be broader appeal
      rights for probationary employees. PFR File, Tab 1 at 16-19. However, probationary
      employees are purposely afforded limited appeal rights to keep the civil service free
      from prohibited personnel practices while also ensuring that agencies can utilize the
      probationary period to determine whether an appointment should become final. Office
      of Policy and Evaluation, U.S. Merit Systems Protection Board, The Probationary
      Period : A Critical Assessment Opportunity, i-ii (2005).
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                   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:
                           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 an appeal to
the United States 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
                                                                                8

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.
