                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RANDALL GLENN ROSSBACH,                         DOCKET NUMBER
                 Appellant,                          DC-315I-14-0066-I-1

                  v.

     DEPARTMENT OF THE INTERIOR,                     DATE: February 17, 2016
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Glenn L. Smith, Esquire, Grand Rapids, Michigan, for the appellant.

           James Nicklas Holt, Jr., Knoxville, Tennessee, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his termination appeal for lack of jurisdiction and denied his request
     for corrective action under the Veterans Employment Opportunities Act of 1998
     (VEOA). For the reasons discussed below, we GRANT the appellant’s petition



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     for review, VACATE the initial decision, and REMAND the appeal to the
     regional office for further adjudication in accordance with this order.

                                       BACKGROUND
¶2         Effective August 26, 2012, the agency appointed the appellant to a
     Maintenance Worker Supervisor position in the competitive service at Great
     Smoky Mountains National Park in North Carolina. Initial Appeal File (IAF),
     Tab 4 at 6-7, 15, 18. His appointment was subject to a 1-year probationary period
     and required him to possess or obtain a North Carolina Water Operators License
     (C-Well) within 1 year. 2 IAF, Tab 37 at 28.
¶3         On Thursday, August 22, 2013, the appellant emailed his supervisor
     requesting leave without pay (LWOP) under Executive Order (EO) 5396 due to a
     medical emergency. 3 IAF, Tab 18 at 8. On Saturday, August 24 and Sunday,
     August 25, the appellant sent text messages to his supervisor stating that he
     would be getting a heart catheterization on the next Monday and reiterating his
     request for leave under EO 5396. See id. at 9-10. According to a declaration
     made under penalty of perjury by C.S., the Deputy Chief of the appellant’s
     division, the appellant’s messages did not meet the requirements for requesting
     leave under EO 5396, but the agency nonetheless granted the appellant sick leave
     for 2 days. IAF, Tab 37 at 25.
¶4         On Friday, August 23, 2013, C.S. issued a notice to the appellant stating
     that the agency was terminating him effective that day due to his failure to obtain
     a C-Well license within 1 year of his appointment. IAF, Tab 4 at 7. The notice
     informed the appellant that his probationary period expired on August 25, 2013,


     2
       While the appointment Standard Form 50 is not included in the record, the parties
     do not dispute the effective date of the appellant’s appointment. See, e.g., IAF, Tab 4
     at 6-7, 18.
     3
      EO 5396 entitles disabled veterans in the executive branch to annual leave, sick leave,
     or leave without pay to obtain necessary medical treatment, provided that the employee
     gives prior notice and provides appropriate medical documentation.
                                                                                          3

     and that, as a probationary employee, his appeal rights were limited. Id. The
     agency mailed the notice by first-class mail to the appellant’s residence in
     Michigan on August 23, 2013. Id. at 8. According to the appellant’s declaration
     under penalty of perjury, C.S. informed him by telephone on Saturday, August 24
     or Sunday, August 25, 2013, while he was still in the hospital, that he had been
     terminated. IAF, Tab 39 at 15.
¶5         On September 20, 2013, the appellant submitted a claim to the Department
     of Labor (DOL) alleging that the agency had violated his veterans’ preference
     rights when it terminated him the day after he requested LWOP under EO 5396.
     IAF, Tab 4 at 17-20. By correspondence dated September 25, 2013, DOL notified
     the appellant that it would not investigate his claim but that he could file an
     appeal to the Board within 15 days of receipt of the letter. Id. at 21.
¶6         On October 24, 2013, the appellant appealed his termination to the Board
     and requested a hearing. 4    IAF, Tab 1.    The administrative judge notified the
     appellant of the law and burdens of proof applicable to establishing jurisdiction
     over an appeal of a termination during an employee’s probationary period and
     claims arising under VEOA. 5 IAF, Tab 2 at 2-3, Tab 20.
¶7         After affording the parties an opportunity to respond, the administrative
     judge found that the appellant had established jurisdiction over his VEOA claim
     but that he had failed to make a nonfrivolous allegation of jurisdiction over his
     probationary termination appeal, which would be dismissed for lack of
     jurisdiction. IAF, Tab 25. The administrative judge scheduled a hearing to be

     4
       Due to the Government shutdown from October 1-17, 2013, all Board filing deadlines
     were extended by the number of days the Federal Government was shut down. Thus,
     the appellant’s appeal was timely filed.
     5
       The administrative judge also provided the appellant with jurisdictional notice
     regarding claims under the Uniformed Services Employment and Reemployment Rights
     Act of 1994 (codified at 38 U.S.C. §§ 4301-4333) (USERRA). IAF, Tab 19. The
     appellant subsequently clarified that he did not wish to pursue a USERRA appeal at that
     time, IAF, Tab 21, and, accordingly, the administrative judge informed the parties that
     she would not adjudicate a USERRA claim, IAF, Tab 25 at 3.
                                                                                        4

      held in Arlington, Virginia. IAF, Tab 29. The appellant submitted a request to
      change the hearing location to Detroit, Michigan, near where he lived, or to hold
      a hearing by videoconference. IAF, Tab 30 at 4. The appellant stated that, if the
      hearing could not be moved or held by videoconference, then he would have to
      withdraw his request for a hearing because he lacked the financial resources to
      travel. Id. The administrative judge found that the appellant had withdrawn his
      request for a hearing and canceled the hearing. IAF, Tab 34.
¶8         In an initial decision based on the written record, the administrative judge
      dismissed the appellant’s termination appeal for lack of jurisdiction, finding that
      he was terminated during his probationary period for conduct that occurred after
      his appointment and that he had not alleged that his termination was based on
      partisan political reasons or marital status discrimination. IAF, Tab 40, Initial
      Decision (ID) at 3-7. The administrative judge found Board jurisdiction over the
      VEOA claim but determined that the appellant had failed to show by a
      preponderance of the evidence that the agency violated one or more of his
      statutory or regulatory veterans’ preference rights.      ID at 7-12.    Thus, the
      administrative judge denied the appellant’s request for corrective action under
      VEOA. ID at 12.
¶9         The appellant has filed a petition for review of the initial decision. Petition
      for Review (PFR) File, Tab 3. The agency has responded in opposition to the
      petition for review. PFR File, Tab 7.

                      DISCUSSION OF ARGUMENTS ON REVIEW
      The appellant made a nonfriviolous allegation of Board jurisdiction over his
      termination appeal.
¶10        To establish Board jurisdiction under 5 U.S.C. chapter 75, an individual
      must, among other things, show that he satisfies one of the definitions of
      “employee” in 5 U.S.C. § 7511(a)(1). 5 U.S.C. § 7513(d); Sosa v. Department of
      Defense, 102 M.S.P.R. 252, ¶ 6 (2006). For an individual, like the appellant, who
      was appointed to a position in the competitive service, this means that he must
                                                                                           5

      either:      (1) not be serving a probationary or trial period under an initial
      appointment; or (2) have completed 1 year of current continuous service under
      other than a temporary appointment limited to 1 year or less. 6              5 U.S.C.
      § 7511(a)(1)(A).      The appellant has the burden of proof on the issue of
      jurisdiction, 5 C.F.R. § 1201.56(b)(2)(i)(A), and, when an appellant makes a
      nonfrivolous allegation that the Board has jurisdiction over an appeal, he is
      entitled to a hearing on the jurisdictional question, assuming he requested a
      hearing and did not subsequently waive his right to a hearing.             See Liu v.
      Department of Agriculture, 106 M.S.P.R. 178, ¶ 8 (2007).                 Nonfrivolous
      allegations of Board jurisdiction are allegations of fact that, if proven, could
      establish a prima facie case that the Board has jurisdiction over the matter at
      issue. Id.
¶11         A probationary period ends at the completion of the last day of the
      employee’s tour of duty before his anniversary date. Herring v. Department of
      Veterans Affairs, 72 M.S.P.R. 96, 100 (1996); 5 C.F.R. § 315.804(b). A “tour of
      duty” is an employee’s regularly scheduled hours and days of duty. Hardy v.
      Merit Systems Protection Board, 13 F.3d 1571, 1573 (Fed. Cir. 1994). Here, the
      appellant was appointed on August 26, 2012, and his 1-year anniversary date was
      August 26, 2013; thus, he completed his probationary period when he finished his
      last tour of duty on or before Sunday, August 25, 2013.
¶12         In the initial decision, the administrative judge found that the appellant
      completed his probationary period on Friday, August 23, 2013. ID at 5.            The
      administrative judge does not cite anything to support this finding, and there is no
      evidence in the record to suggest that the appellant, a Maintenance Worker
      Supervisor, was not regularly scheduled to work weekends. In fact, the vacancy


      6
        An individual in the competitive service who does not satisfy either definition may
      nevertheless have a regulatory right to appeal a termination to the Board if the agency
      terminated him for reasons arising before his appointment but failed follow the
      procedures of 5 C.F.R. § 315.805 in effecting the termination. 5 C.F.R. § 315.806.
                                                                                          6

      announcement used to fill the appellant’s position specifies that the position
      required the incumbent to work weekends. IAF, Tab 37 at 28. In addition, C.S.’s
      affidavit stated that the agency granted the appellant sick leave for Friday,
      August 23 and Saturday, August 24, 2013, which further suggests that the
      appellant was scheduled to work on the Saturday in question. 7 IAF, Tab 37 at 25.
      While this evidence suggests that the appellant’s probationary period did not end
      until Saturday, August 24 or Sunday, August 25, 2013, we find it insufficient to
      establish the fact with adequate certainty.
¶13         To terminate a probationary employee in the competitive service for
      conduct occurring after his appointment, the agency must notify him “in writing
      as to why he is being separated and the effective date of the action.” 5 C.F.R.
      § 315.804(a). 8     The Board has held that “the plain meaning of the regulatory
      language indicates that the employee is not terminated until he receives such
      notice since it is only ‘by notifying him in writing’ that termination of the
      employee’s        services   is   accomplished.”     Lavelle   v.   Department      of
      Transportation, 17 M.S.P.R. 8, 15 (1983) (quoting 5 C.F.R. § 315.804), modified
      on other grounds by Stephen v. Department of the Air Force, 47 M.S.P.R. 672




      7
         Although the agency has maintained throughout this appeal that the appellant’s
      termination was effective on August 23, 2013, C.S.’s statement that the appellant was
      granted sick leave for August 24, 2013, suggests that the appellant remained in a pay
      status as an agency employee through at least Saturday, August 24, 2013. IAF, Tab 37
      at 25. However, the parties have not provided the appellant’s time and attendance
      records, and we are unable to verify the accuracy of C.S.’s statement.
      8
        By contrast, removal of a tenured employee, i.e., an individual who satisfies the
      definition of “employee” at 5 U.S.C. § 7511(a)(1), may be taken only for such cause as
      will promote the efficiency of the service. 5 U.S.C. § 7513(a). Tenured employees
      against whom an adverse action, such as a removal, is proposed, are entitled to the
      procedures set forth at 5 U.S.C. § 7513(b), including advance written notice, an
      opportunity to answer, and a written decision setting forth the specific reasons for
      the action.
                                                                                            7

      (1991). 9 An employee need not receive actual delivery of the agency’s notice
      before the effective date of the termination so long as the agency’s attempts to
      notify him were diligent and reasonable under the circumstances.            Id.   If the
      agency made diligent and reasonable attempts to effect service of the notice prior
      to the effective date of the action, then the Board will find that the employee
      received constructive delivery of the notice. See id. If an employee does not
      receive actual or constructive delivery of written notice of his termination until
      after the effective date of the action, the action is not effective until actual receipt
      of the notice by the employee. See id. at 16.
¶14         In this appeal, the administrative judge found that the appellant received the
      termination notice on August 23, 2013. ID at 6. On review, the appellant argues
      that this finding was in error and that, while he does not recall the exact date he
      received the written termination notice, he knows that he did not receive it until
      after he left the hospital on Monday, August 26, 2013. PFR File, Tab 3 at 10-12.
      As noted above, the agency mailed the termination notice by first-class mail to
      the appellant’s residence in Michigan on August 23, 2013. IAF, Tab 4 at 7-8.
      We take administrative notice of the fact that first-class mail is not usually
      delivered on the same day that it is deposited in the mail, particularly when the
      delivery location is hundreds of miles from the point of mailing. See 5 C.F.R.
      § 1201.64 (stating that administrative notice may be taken of matters of common
      knowledge).    Thus, we agree with the appellant that the administrative judge
      erred in finding that the appellant received the termination notice on August 23,
      2013. Further, it does not appear that the agency took reasonable or diligent steps
      under the circumstances to afford the appellant prior notice; the Board has found
      that mailing a termination notice to an employee by certified mail on the effective



      9
       Although Lavelle quotes a previous version of 5 C.F.R. § 315.804, the current version
      of the regulation contains the identical language regarding providing employees written
      notice of their termination.
                                                                                        8

      date of the action was “completely inadequate to ensure prior service.” Lavelle,
      17 M.S.P.R. at 15.
¶15         In sum, the date the appellant completed his probationary period and the
      date he received notice of the termination are not clear from the evidence of
      record.   Further, it does not appear that the appellant received notice of the
      termination notice prior to the effective date of the action. As such, the appellant
      has made allegations of fact that, if true, would establish Board jurisdiction over
      his adverse action appeal. See Liu, 106 M.S.P.R. 178, ¶ 8. Thus, he is entitled to
      a hearing on the jurisdictional question, assuming he requested a hearing and
      did not subsequently waive it. See id. Accordingly, we now address whether the
      appellant is entitled to a hearing.
      The administrative judge erred in finding that the appellant withdrew his request
      for a hearing.
¶16         As noted above, the administrative judge scheduled the hearing to be held in
      Arlington, Virginia, IAF, Tab 29, and the appellant requested that the hearing be
      either moved to Detroit, Michigan, near where he lived, or held by
      videoconference, IAF, Tab 30 at 4. In his motion, the appellant stated that, if the
      hearing remained scheduled in Arlington, he would “have to withdraw his request
      for a hearing and submit the case on the record due to the lack of financial
      resources.” Id. On the basis of the appellant’s motion to change the hearing
      location, the administrative judge found that the appellant had withdrawn his
      request for a hearing, canceled the hearing, and ordered the parties to submit
      initial briefs. IAF, Tab 34.
¶17         An appellant who has requested a hearing may withdraw his request and
      have the administrative judge adjudicate his appeal on the record. Shingles v.
      U.S. Postal Service, 90 M.S.P.R. 245, ¶ 10 (2001). However, an appellant may
      only waive his right to a hearing by clear, unequivocal, or decisive action. Id.
      Further, the waiver must be an informed one. Id. An appellant’s waiver of the
                                                                                              9

      right to a hearing is informed when he has been fully apprised of the relevant
      adjudicatory requirements and options in his case. Id.
¶18         Here, the appellant did not clearly, unequivocally, or decisively waive his
      right to a hearing; rather, he asked for a new hearing location or a hearing by
      videoconference because he lacked the financial resources to travel. IAF, Tab 30
      at 4. The appellant’s statement that “he will have to withdraw his request for a
      hearing” was conditioned upon the administrative judge’s denial of his request to
      move the hearing location to Detroit or hold a hearing by videoconference. See
      id.   Moreover, the appellant’s waiver of a hearing was not an informed one
      because the administrative judge did not inform him of his right to a hearing by
      telephone, by videoconference, or at a location other than Arlington, Virginia,
      and did not inform him of his right to request a postponement or continuance of
      the hearing and a dismissal of the appeal without prejudice.               See Siman v.
      Department of Air Force, 80 M.S.P.R. 306, ¶ 6 (1998); Conant v. Office of
      Personnel Management, 79 M.S.P.R. 148, 150-51 (1998). Although the appellant
      has not specifically challenged the administrative judge’s finding that he waived
      his right to a hearing on review, a right to a hearing is so fundamental a right that
      we have considered the issue sua sponte and find that the appellant did not waive
      his right to a hearing. See Siman, 80 M.S.P.R. 306, ¶ 6 (raising issues related to
      withdrawal of a request hearing sua sponte).
¶19         As discussed above, the appellant has made a nonfrivolous allegation of
      jurisdiction and thus is entitled to the hearing that he requested and did not waive.
      Accordingly, we remand this appeal to the administrative judge. On remand, the
      administrative judge shall afford the appellant the option of a hearing in person or
      by videoconference and shall issue a new initial decision consistent with
      this order. 10

      10
         In considering the locations for a possible in-person hearing, the administrative judge
      should consider the location of the parties and witnesses in addition to the convenience
      of the Board. See 5 C.F.R. § 1201.51(d).
                                                                                    10

      The administrative judge erred in deciding the appellant’s VEOA claim without
      holding his requested hearing.
¶20        The administrative judge found jurisdiction over the appellant’s VEOA
      claim and, because she determined that he had waived his right to a hearing,
      denied corrective action on the basis of the written record. ID at 7-12. Although
      the Board’s regulations permit adjudicating a VEOA claim on the merits without
      a hearing, an administrative judge may only do so where there is no genuine
      dispute of material fact and one party must prevail as a matter of law. 5 C.F.R.
      § 1208.23(b); see Williamson v. U.S. Postal Service, 106 M.S.P.R. 502, ¶ 8
      (2007). As discussed above, however, the administrative judge erred in finding
      that the appellant had waived his right to a hearing. As such, on remand the
      administrative judge shall afford the appellant a hearing on the merits or make a
      determination that there was no genuine issue of material fact in dispute.
¶21        Lastly, we acknowledge that the appellant previously expressly stated his
      objection to bringing a USERRA claim “at this time” and we find no error in the
      administrative judge’s decision not to adjudicate a USERRA claim. However, on
      remand, the administrative judge should allow the appellant the opportunity to
      amend his appeal to assert a USERRA claim. 11

                                           ORDER
¶22         For the reasons discussed above, we REMAND this case to the regional
      office for further adjudication in accordance with this remand order.




      FOR THE BOARD:                            ______________________________
                                                William D. Spencer
                                                Clerk of the Board
      Washington, D.C.


      11
         We make no finding about the preclusive effect this appeal may have on the
      appellant’s ability to bring a USERRA claim at a later time.
11
