                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     BLAKE GRAMLING,                                 DOCKET NUMBER
                 Appellant,                          DC-315H-15-0375-I-1

                  v.

     DEPARTMENT OF THE INTERIOR,                     DATE: June 9, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Norman Jackman, Esquire, Cambridge, Massachusetts, for the appellant.

           Josh C. Hildreth, 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 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).
¶2        The appellant was terminated for misconduct during his probationary
     period. Initial Appeal File (IAF), Tab 6 at 11-14. He filed this Board appeal in
     which he alleged that his termination constituted marital status discrimination
     because the alleged misconduct for which the agency terminated him was mere
     flirting, which is “what most people do who are not married.” IAF, Tab 1 at 7.
     He also stated that, because his supervisor was married, she was not familiar with
     the way single people normally flirt and therefore took action against him. Id.
     He requested a hearing. Id. at 3. The administrative judge ordered the appellant
     to file evidence or argument to establish why his appeal should not be dismissed
     for lack of jurisdiction. IAF, Tab 2. In response, the appellant reiterated the
     same arguments from his initial appeal. IAF, Tab 4.
¶3        The administrative judge dismissed the appeal for lack of jurisdiction
     without holding the requested hearing. IAF, Tab 7, Initial Decision (ID) at 3.
     Specifically, he found that the appellant failed to establish a nonfrivolous claim
     of marital status discrimination because there was no indication that the
     appellant’s marital status would have affected the agency’s decision to terminate
                                                                                            3

     him for making inappropriate comments to a coworker. 2 ID at 4. In his timely
     petition for review, the appellant asserts that the administrative judge erred in
     dismissing the appeal for lack of jurisdiction merely because he “did not like” the
     basis of the appellant’s nonfrivolous allegation of jurisdiction and that the
     administrative judge actually decided the case on the merits despite finding that
     the Board lacked jurisdiction. 3     Petition for Review (PFR) File, Tab 1 at 5.
     Therefore, the appellant states that the appeal should be remanded. 4 Id. The
     agency has filed a response in opposition to the petition for review. PFR File,
     Tab 4.
¶4         We find that the administrative judge correctly dismissed the appeal for
     lack of jurisdiction without holding a jurisdictional hearing.          A probationary
     employee has no statutory right of appeal to the Board. See 5 U.S.C. § 7511(a).
     Such an employee has a regulatory right of appeal to the Board, however, if he
     makes a nonfrivolous allegation that he was terminated due to discrimination
     based on marital status. 5 C.F.R. § 315.806(b). The appellant has the burden of


     2
       The administrative judge found that the Board does not have jurisdiction to decide the
     appellant’s claim that he was terminated because of his disability. ID at 3 n.1; see IAF,
     Tab 4 at 4-5. We agree because, absent an otherwise appealable action, the Board does
     not have jurisdiction over discrimination claims. See Wren v. Department of the Army,
     2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982). To the extent that
     the appellant also asserted that his termination violated the First Amendment, IAF,
     Tab 4 at 4, the Board has no jurisdiction to review such constitutional claims absent an
     otherwise appealable action, Smith v. Department of Defense, 106 M.S.P.R. 228, ¶ 13
     (2007).
     3
       On review, the appellant attaches a previous response to the agency’s allegations of
     misconduct. PFR File, Tab 1 at 7-8. The response was already contained in the
     agency’s submission. IAF, Tab 6 at 15-16. Therefore, the evidence is not new and
     does not provide a basis for disturbing the initial decision. See 5 C.F.R. § 1201.115(d).
     4
       The appellant states that his appeal should be remanded to a different administrative
     judge as the current administrative judge has already expressed his opinion. PFR File,
     Tab 1 at 5. We find that, to the extent that the appellant is alleging administrative
     judge bias, he has not overcome the presumption of honesty and integrity that
     accompanies administrative adjudicators. See, e.g., Tyler v. U.S. Postal Service,
     90 M.S.P.R. 545, ¶ 6 (2002).
                                                                                         4

     proving the Board’s jurisdiction by a preponderance of the evidence. 5 5 C.F.R.
     § 1201.56(b)(2)(i)(A). If an appellant makes a nonfrivolous allegation that the
     Board has jurisdiction over his appeal, then he is entitled to a hearing, if he
     requests one, on the jurisdictional question.       Hurston v. Department of the
     Army, 113 M.S.P.R. 34, ¶ 5 (2010).
¶5         To nonfrivolously allege marital status discrimination, an appellant may
     allege facts showing either that he was treated differently because of his marital
     status or that go to the essence of his status as a married, single, or divorced
     person. Smirne v. Department of the Army, 115 M.S.P.R. 51, ¶ 8 (2010). An
     appellant’s allegations regarding marital status discrimination must be more than
     mere conjecture. Id. We agree with the administrative judge that the appellant
     has not alleged that he was treated differently due to his marital status because
     there was no indication that the appellant would not have been terminated for
     making inappropriate comments if he had been married.                 See ID at 4.
     Accordingly, we find that the administrative judge correctly dismissed the appeal
     for lack of jurisdiction. See James v. Department of the Army, 55 M.S.P.R. 124,
     127 (1992) (finding that the appellant did not make a nonfrivolous allegation that
     his termination was based on marital status discrimination).

                     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

     5
      A preponderance of the evidence is that degree of relevant evidence that a reasonable
     person, considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
                                                                                  5

     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
                                                                                6

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.
