                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MELISSA A. SILAS,                               DOCKET NUMBER
                    Appellant,                       DA-3443-16-0074-I-1

                  v.

     DEPARTMENT OF THE TREASURY,                     DATE: August 17, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Melissa A. Silas, North Richland Hills, Texas, pro se.

           Linda Bailey, Fort Worth, Texas, 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 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

     *
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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.        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, 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 agency terminated the appellant from her Veterans’ Recruitment
     Appointment (VRA) to a GS-09 Security Specialist position in the excepted
     service during her trial period because she failed to successfully complete a
     condition of her employment, the basic investigator training course at the Federal
     Law Enforcement Training Center (FLETC). Initial Appeal File (IAF), Tab 1 at
     8-10, Tab 7 at 22. In her Board appeal, she argued that she is not guilty of the
     charges in the agency’s decision letter and characterized the agency’s allegations
     as false. IAF, Tab 1 at 6. She further argued that her termination was not taken
     to promote the efficiency of the service and claimed that it instead was motivated
     by title VII discrimination.   Id.   The administrative judge gave the appellant
     notice of her burden to establish jurisdiction over her appeal, and the agency
     moved to dismiss the appeal for lack of jurisdiction.       IAF, Tabs 2-3, 7.     In
     response, the appellant argued that the Board has jurisdiction over this appeal
     because she met the pertinent definition of an employee with appeal rights to the
     Board, i.e., a preference eligible in the excepted service who had completed 1
                                                                                       3

     year of current continuous service in the same or similar positions in an executive
     agency. IAF, Tab 11 at 3-4, Tab 12 at 4-5; see 5 U.S.C. § 7511(a)(1)(B)(i).
¶3        Without holding the requested hearing, the administrative judge dismissed
     the appeal for lack of jurisdiction because she found the appellant failed to
     demonstrate that she met the 1 year of current continuous service requirement at
     the time of her separation. IAF, Tab 13, Initial Decision (ID). In her petition for
     review, the appellant asserts for the first time that the agency terminated her
     based on partisan political reasons and her marital status. Petition for Review
     (PFR) File, Tab 1 at 5-7.     She also reiterates her argument that the agency
     discriminated against her on the basis of an alleged disability, asserting that she
     sustained an injury during her training at FLETC for which the agency
     prematurely required her to return to her place of duty, and she argues that, rather
     than terminate her, the agency could have allowed her to return and try to pass the
     training again or place her in a position that did not require the training. Id. at
     8-9. The agency responds in opposition. PFR File, Tab 5.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶4        An individual’s right to appeal an adverse action to the Board depends on
     whether she is or is not an “employee” as defined by 5 U.S.C. § 7511(a)(1). Bell
     v. Department of Homeland Security, 95 M.S.P.R. 580, ¶ 15 (2004).               The
     definition of “employee” includes “a preference eligible in the excepted service
     who has completed 1 year of current continuous service in the same or similar
     positions—(i) in an Executive agency; or (ii) in the United States Postal Service
     or Postal Regulatory Commission.”      5 U.S.C. § 7511(a)(1)(B).    Notably, for a
     preference eligible in the excepted service, the absence or completion of a
     probationary or trial period is not determinative of “employee” status. Maibaum
     v. Department of Veterans Affairs, 116 M.S.P.R. 234, ¶ 9 (2011).        Rather, the
     dispositive issue is whether the appellant satisfied the 1–year “current continuous
     service” requirement when she was separated. Id. The term “current continuous
                                                                                      4

     service” means a period of employment or service either in the competitive or
     excepted service that immediately precedes an adverse action without a break in
     Federal civilian employment of a workday. Id., ¶ 14; 5 C.F.R. § 752.402.
¶5        The record reflects that the appellant had a break in service of more than a
     workday between her August 23, 2008 resignation from the YB-02 Unit
     Administrator position she held with the U.S. Army Reserve Command, IAF,
     Tab 12 at 6, and her February 2015 appointment to the GS-09 Security Specialist
     position from which the agency terminated her effective October 30, 2015, IAF,
     Tab 1 at 8-10. The appellant contended below that the agency had employed her
     for over 2 1/2 years before her October 30, 2015 termination. The administrative
     judge specifically ordered the appellant to identify the position(s) she occupied
     prior to her February 2015 appointment and submit evidence to show any
     employment by the agency for any period before February 23, 2015.             IAF,
     Tab 10-11. Because the appellant failed to present any evidence in support of her
     contention that the agency had appointed her to any position prior to
     February 2015, we agree with the administrative judge that the appellant failed to
     nonfrivolously allege that she had 1 year of current continuous service when the
     agency terminated her VRA and that the Board therefore lacks jurisdiction over
     this appeal under 5 U.S.C. chapter 75. ID at 3-5.
¶6        We also agree with the administrative judge that the appellant failed to
     show that the Board has jurisdiction over this appeal under 5 C.F.R. § 315.806.
     ID at 6. An individual serving under a VRA, whose employment is terminated
     within 1 year after the date of such appointment, has the same right to appeal that
     termination as a career or career-conditional employee has during the first year of
     employment.    5 C.F.R. § 307.105.    As the administrative judge informed the
     appellant below, to be entitled to a hearing, she must make a nonfrivolous
     allegation that her termination was based on partisan political reasons, marital
     status discrimination, or was based in whole or in part on pre-appointment
     matters. IAF, Tab 3; 5 C.F.R. § 315.806. The appellant did not allege any of the
                                                                                           5

     above cited grounds in her appeal below, instead arguing the merits of the
     agency’s reasons for her removal. IAF, Tabs 1, 11-12. Thus, we agree with the
     administrative judge that the appellant failed to establish a regulatory right to
     appeal her termination under 5 C.F.R. § 315.806. As noted above, she argues for
     the first time on review that the agency terminated her based on partisan political
     reasons and her marital status.     PFR File Tab 1 at 5-7.        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). The appellant does not allege that her arguments are
     based on new and material evidence, and she offers no reason why the evidence
     she cites was not available before the record closed. Additionally, the appellant’s
     allegations cite incidents that occurred before her removal, PFR File, Tab 1 at
     5-7, but there is no evidence of her having raised these arguments below.
     Nevertheless, the following discussion demonstrates that, even if we were to
     consider   the   appellant’s   arguments,    they   do    not   demonstrate   that   the
     administrative judge erred in dismissing the appeal for lack of jurisdiction.
¶7        On review, the appellant, who is Hispanic, claims that her supervisor, who
     is black, discriminated against her because the appellant’s husband is black and
     the supervisor allegedly “harbored dislike against Hispanic and Caucasian
     females associated with black men.”         Id. at 5-6.   Even if what the appellant
     alleges is true, it does not constitute discrimination on the basis of her marital
     status. Discrimination based on the race of an individual’s spouse is not marital
     status discrimination because it does not go to the essence of the individual’s
     status as a married person.        E.g., Pommert v. Department of the Army,
     14 M.S.P.R. 99, 100 (1982).
¶8        The same is true for the appellant’s allegation that the agency terminated
     her for partisan political reasons. She alleges that the agency made her a job
     offer and then failed to move forward with the process. PFR File, Tab 1 at 6.
                                                                                       6

     After waiting a year and failing to get an explanation, the appellant contacted her
     member of Congress, and subsequently got a response from the agency
     withdrawing the tentative job offer due to budgetary constraints. Id. at 6-7. The
     appellant questions the veracity of the agency’s budgetary constraint claims and
     argues that the agency terminated her because it was annoyed by the
     congressional inquiry she initiated and that it used its VRA authority to hire her
     to preclude her right to appeal her termination to the Board. Id. at 7. However,
     discrimination based on “partisan political reasons” under 5 C.F.R. § 315.806(b)
     means discrimination based on affiliation with any political party or candidate.
     Mastriano v. Federal Aviation Administration, 714 F.2d 1152, 1155–56 (Fed. Cir.
     1983); Sweeting v. Department of Justice, 6 M.S.P.R. 715, 719 (1981). Even if
     the appellant’s allegations are true, her asking for congressional assistance would
     involve seeking constituent services not partisan politics, and she offers no
     evidentiary support for her speculation that the agency hired her under its VRA
     authority to be able to subsequently terminate her without Board appeal rights.
     Thus, we find that the appellant’s allegations of partisan political and marital
     status discrimination are without merit.       Once the Board determines that
     allegations of marital status or political discrimination are without substance, the
     appeal will be dismissed for lack of jurisdiction.     Stokes v. Federal Aviation
     Administration, 761 F.2d 682, 685‑86 (Fed. Cir. 1985).
¶9        Finally, the appellant reiterates her disability discrimination claim.
     PFR File, Tab 1 at 8-9. Absent an otherwise appealable action, the Board lacks
     jurisdiction over the appellant’s discrimination claim. Wren v. Department of the
     Army, 2 M.S.P.R. 1, 2 (1980) (finding that allegations of discrimination are not an
     independent source of appellate jurisdiction, and an underlying appeal within the
     Board’s jurisdiction must first be presented for such allegations to be considered),
     aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).        Because we agree with the
     administrative judge that the Board lacks jurisdiction over the appellant’s
                                                                                  7

termination, the Board also lacks jurisdiction over the appellant’s disability
discrimination claim.

                    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
                                                                                8

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.
