                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RHONDA T. SPROLES,                              DOCKET NUMBER
                   Appellant,                        DC-315H-14-0289-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: December 10, 2014
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Neil C. Bonney, Esquire, Virginia Beach, Virginia, for the appellant.

           Claudia Lynch, Esquire, Newport News, Virginia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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
     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).

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant was appointed to a competitive-service GS-11 Social Worker
     position on January 28, 2013.     Initial Appeal File (IAF), Tab 4 at 11.      This
     appointment was subject to a 1-year probationary period. Id. At the time of her
     appointment, the appellant did not have any prior creditable federal service. Id.
     On December 11, 2013, the agency terminated the appellant for inadequate
     “conduct and professional manner.” Id. at 6. The appellant filed a Board appeal
     contesting her termination. IAF, Tab 1 at 4.
¶3        The administrative judge issued an order, which advised the appellant on
     proving jurisdiction over her appeal.     IAF, Tab 3 at 2-4.      After the parties
     responded, the administrative judge, without holding a hearing, issued an initial
     decision dismissing the appeal for lack of jurisdiction. IAF, Tab 4, Tab 6, Tab
     10, Initial Decision (ID) at 1, 6-9. In pertinent part, the administrative judge
     found that the appellant’s allegation that she was terminated, at least in part,
     because of her off-duty employment did not constitute a nonfrivolous allegation
     that she was terminated for conditions arising before her federal appointment,
                                                                                             3

     and thus 5 C.F.R. § 315.806(c) was not a source of jurisdiction. ID at 7-9; IAF,
     Tab 6. The appellant has submitted a timely petition for review. Petition for
     Review (PFR) File, Tab 1. The agency has responded to the petition for review.
     PFR File, Tab 3.

     The appellant has not made a nonfrivolous allegation that she was terminated for
     a pre-appointment reason.
¶4         The    administrative   judge    found    that   the   Board   lacks   jurisdiction
     under 5 C.F.R. §§ 315.805, 315.806(c) because the appellant did not raise a
     nonfrivolous allegation that she was terminated for a pre-appointment reason. 2
     ID at 7-9.      We agree.       On petition for review, the appellant’s primary
     jurisdictional argument is identical to the argument she raised below: she alleges
     that her termination was at least partially based on her outside contract work,
     which she argues is a pre-appointment reason. 3 IAF, Tab 6 at 4; PFR File, Tab 1
     at 5-7.     She argues that her outside contract work was a pre-appointment
     condition because it was approved by the agency before she was appointed. IAF,
     Tab 6 at 4; PFR File, Tab 1 at 5.
¶5         An appellant is entitled to a jurisdictional hearing only if she makes a
     nonfrivolous allegation of Board jurisdiction, i.e., an allegation of fact which, if
     proven, could establish a prima facie case that the Board has jurisdiction over
     the matter at issue.    Baldwin v. Department of Veterans Affairs, 109 M.S.P.R.
     392, ¶ 11 (2008). Because the appellant did not make a nonfrivolous allegation
     of Board jurisdiction, we agree with the administrative judge’s denial of her
     request for a hearing. Under 5 C.F.R. § 315.806(c), a probationary employee

     2
       The administrative judge also found that the appellant lacked a statutory right of
     appeal under chapter 75 of Title 5 because she was a probationary employee with less
     than 1 year of federal civilian service. ID at 6. The appellant does not challenge this
     finding on review, and we find no reason to disturb the administrative judge’s finding.
     3
       The appellant has not argued that her termination was based upon either partisan
     politics or marital status, and thus 5 C.F.R. § 315.806(b) is not a source of jurisdiction
     here. See Blount v. Department of the Treasury, 109 M.S.P.R. 174, ¶ 5 (2008).
                                                                                      4

     may appeal to the Board on the grounds that the agency terminated her
     appointment for reasons arising pre-appointment without complying with the
     procedural requirements of 5 C.F.R. § 315.805. Blount, 109 M.S.P.R. 174, ¶ 5.
¶6        Even if the appellant’s off-duty employment was a consideration in her
     termination, it would not constitute a pre-appointment reason for purposes
     of 5 C.F.R. §§ 315.805, 315.806. The appellant alleges that the agency informed
     her that she was terminated because of her off-duty employment, and she alleges
     that the agency erroneously indicated that she did not properly report her off-duty
     employment. PFR File, Tab 1 at 6. Further, the appellant alleges that the agency
     was unaware that she secured approval for her off-duty employment from her
     interviewer prior to her appointment. Id. However, although the appellant was
     involved in the contract work before she was appointed, her involvement in that
     position after her appointment constituted post-appointment activity.
¶7        The appellant’s arguments do not suggest that the agency terminated her
     because of her involvement in the outside contract work before she was
     appointed. Therefore, the appellant has not raised a nonfrivolous allegation that
     she was terminated for a pre-appointment reason. It is necessary to distinguish
     between a pre-existing condition, which in the instant case is the appellant’s
     outside contract work, and the effect that condition has on her performance or
     conduct during her probationary period.       See Rhone v. Department of the
     Treasury, 66 M.S.P.R. 257, 259 (1995).      To the extent that the appellant has
     alleged that her off-duty employment was a consideration for her termination, it
     would be because of its effect on her post-appointment conduct and professional
     manner; thus it would not constitute a pre-appointment reason. The Board has
     found in similar cases that a pre-existing condition affecting post-appointment
     deficiencies does not constitute a pre-appointment condition.       See Walker v.
     Department of the Army, 119 M.S.P.R. 391, ¶ 14 (2013) (pre-appointment reasons
     do not include post-appointment performance or conduct deficiencies); cf. Rivera
     v. Department of the Navy, 114 M.S.P.R. 52, ¶ 8 (2010) (even assuming that the
                                                                                          5

     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); Holloman v. Department of the Navy, 31 M.S.P.R. 107 (1986)
     (attendance   problem    caused    by   pre-existing   medical    condition   is     a
     post-appointment reason for termination). The appellant’s claim that the agency
     erroneously did not account for her allegedly having reported and obtained
     approval for her outside work prior to her appointment, PFR File, Tab 1 at 6, is
     not the equivalent of an allegation that the agency terminated her based on
     conditions arising pre-appointment.     Therefore, the appellant has not made a
     nonfrivolous allegation that the agency had to comply with the procedures set
     forth in section 315.805, and 5 C.F.R. § 315.806(c) is not a source of jurisdiction.
¶8        The appellant has submitted for the first time on review character references
     from her supervisors and coworkers, which were completed in December 2013.
     PFR File, Tab 1 at 9-12. The Board normally will not consider evidence or legal
     argument raised for the first time in a petition for review absent a showing that it
     was not previously available despite the party’s due diligence.            Davis v.
     Department of Commerce, 120 M.S.P.R. 34, ¶ 16 (2013); Banks v. Department of
     the Air Force, 4 M.S.P.R. 268, 271 (1980); 5 C.F.R. § 1201.115(d).                 The
     appellant does not offer any explanation for submitting character references for
     the first time on review, and thus we find this evidence is not a basis for
     disturbing the initial decision. Further, the Board will not grant a petition for
     review based on new evidence absent a showing that it is of sufficient weight to
     warrant an outcome different from that of the initial decision. Russo v. Veterans
     Administration, 3 M.S.P.R. 345, 349 (1980). We find that the new evidence is
     not material because it does not establish a nonfrivolous allegation that the
     appellant was terminated for a pre-appointment reason.
¶9        For the first time on review, the appellant alleges that the person who
     interviewed and hired her had filed an action against the agency and that the
                                                                                  6

appellant “was seen as her ally.” PFR File, Tab 1 at 5. Further, the appellant
claims that, “[c]onsequently, the agency went after [her], manufacturing false
claims and terminating her employment during her probationary period.” Id. The
appellant also stated below that her termination “was taken in retaliation for [her]
protected activities,” but she did not further elaborate on this general assertion.
IAF, Tab 1 at 4. The appellant has been represented by experienced counsel and
has not argued that these allegations provide an independent basis for
jurisdiction, and we discern no basis for so finding. See IAF, Tab 6 at 4, Tab 8 at
5; PFR File, Tab 1 at 5-7. We note that the appellant admitted that she has not
filed a complaint with the Office of Special Counsel, IAF Tab 1 at 5, which
would be a prerequisite to Board jurisdiction over an individual right of action
appeal, 5 U.S.C. §§ 1214(a)(3), 1221(a); Yunus v. Department of Veterans
Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).

                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).
                                                                                  7

     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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
