                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CASSANDRA DENISE SMITH,                         DOCKET NUMBER
                 Appellant,                          CH-315H-16-0421-I-1

                  v.

     DEPARTMENT OF LABOR,                            DATE: January 6, 2017
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Cassandra Denise Smith, Mount Sterling, Kentucky, pro se.

           Dorothy J. Stephens, Esquire, Chicago, Illinois, 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 the 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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.          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).
¶2         On May 31, 2015, the appellant received a career conditional appointment
     to the competitive service position of a GS-0991-09 Workers’ Compensation
     Claims Examiner, subject to the satisfactory completion of a 1 -year probationary
     period. Initial Appeal File (IAF), Tab 1 at 1, Tab 3 at 1, 6. In May 2016, 2 prior
     to the completion of her probationary period, she was terminated for performance
     deficiencies. IAF, Tab 1 at 4, Tab 3 at 1-3, 6. The appellant filed the instant
     appeal defending her performance and alleging that she was separated from the
     agency for not meeting unrealistic expectations. IAF, Tab 1 at 6.
¶3         After informing the appellant of her jurisdictional burden and providing her
     an opportunity to respond, the administrative judge issued an initial decision that
     dismissed the appeal for lack of jurisdiction, finding that the appellant did not
     meet the statutory definition of an “employee” under 5 U.S.C. § 7511(a)(1)(A).
     IAF, Tab 2 at 2-4, Tab 9, Initial Decision (ID) at 3. The appellant has filed a
     petition for review. Petition for Review (PFR) File, Tab 1. She argues that the
     administrative judge ignored her substantive arguments, but does not make any

     2
       There appears to be a discrepancy regarding the effective date of termination. The
     appellant’s Standard Form 50 indicates that the effective termination date was May 27,
     2016, IAF, Tab 3 at 6, while the Notice of Termination states that the effective date of
     termination was May 23, 2016, id. at 1. Both dates are within the 1-year probationary
     period and would result in the same analysis and outcome.
                                                                                             3

     arguments relating to Board jurisdiction. Id. at 3-4. The agency has responded to
     the appellant’s petition, arguing that she has not submitted any evidence or
     argument that would support a reversal of the initial decision and reasserting that
     she was terminated before the completion of her probationary period. PFR File,
     Tab 3 at 2‑4.
¶4        There is no dispute that the appellant was appointed to her position on
     May 31, 2015, subject to a 1-year probationary period. ID at 2; IAF, Tab 3 at 1.
     She was terminated approximately 1 week before the expiration of the
     probationary period. ID at 2; IAF, Tab 3 at 6. Thus, it is undisputed that the
     appellant was terminated while still serving her probationary period. Moreover,
     the appellant does not allege that she had any prior Federal service that would
     amount   to     1 year   of   current     continuous   service,   pursuant   to   5 U.S.C.
     § 7511(a)(1)(A)(ii). Additionally, the administrative judge found, and we agree,
     that the appellant did not allege that her termination was based on preappointment
     reasons, partisan political reasons, or marital status, thus foreclosing a possible
     regulatory right to an appeal.          ID at 3; see 5 C.F.R. § 315.806.     Because the
     appellant failed to make a nonfrivolous allegation that she was not serving a
     probationary period at the time of her removal or that she had any prior Federal
     service amounting to 1 year of current continuous service, we agree with the
     administrative judge’s finding that the appellant is not an “employee” within the
     meaning of 5 U.S.C. § 7511(a)(1)(A). As such, the appellant has no appeal rights
     before the Board. Accordingly, we find no basis to disturb the initial decision.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the
     U.S. Court of Appeals for the Federal Circuit. You must submit your reques t to
     the court at the following address:
                                                                                  4

                          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 U.S. 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
                                                                                  5

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.
