UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2016 MSPB 25

Docket No. DE-315H-15-0241-I-1


### Stephen B. LeMaster, Appellant,

v. Department of Ve terans Affairs, Agency. July 5, 2016

Reuben Ard, III, Helena, M ontana, for the appellant. Letha Miller, Esquire, Denver, Colorado, for the agency.

BEFORE
Susan Tsui Grundmann, Chairman Mark A. Robbins, Member

OPINION AND ORDER
¶1 The appellant has filed a petition for re view of the initial decision, which dismissed his probationary te rmination appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s pe tition for review, REVERSE the initial decision, and REM AND the case to th e field office for further adjudication in accordance with this Op inion and Order.2

BACKGROUND ¶2 Effective November 16, 2014, the appell ant received an a ppointment to the competitive service position of GS

‐ 05 Program Support Clerk, subject to a 1-year probationary period. 1 Initial Appeal File (IAF), Ta b 7 at 31. While the appellant was still serving his probati onary period, the agency no tified him that he would be terminated from his position, effect ive February 13, 2015, due to “conduct issues” relating to the terms of a June 22, 2007 court- ordered probation agreement that was entered following his release fr om prison for bank fraud. Id. at 24-27, 29, 33. The agency’s term ination notice cited the terms of the appellant’s probation agreement, whic h, among other things , required him to inform any employer or prospective employer of hi s current conviction and supervision status, prohibited him from possessing or using a computer with access to any online computer service without the prio r written approval of the

1 The Standard Form 50 (SF-50) concerning the appellant’s appointment indicates that he received a career-conditional appointment to a competitive-service position pursuant to the Veterans Employment Opportun ities Act of 1998 (VEOA), as amended by section 511 of the Veterans Millennium H ealth Care and Benef its Act, Pub. L. No. 106

‐ 117, 113 Stat. 1545 (19 99). IAF, Tab 7 at 31. The relevant portion of VEOA requires agencies to allow preference eligib les or eligible vete rans to compete for vacant positions when the agen cy will accept applications from individuals from outside its own workforce. 5 U.S.C. § 3304 (f)(1). Prior to the 1999 amendment, appointees under this authority were given Schedule B appointments in the excepted service; however, since the 1999 amendment, such appointees receive career or

career ‐ conditional appointments to the competitive-service position. See 5 U.S.C. § 3304 (f)(2); Brandt v. Department of the Air Force , 103 M.S.P.R. 671 , ¶¶ 21

‐ 23 (2006). In contrast to the appointment SF-50, the agency’s Nove mber 7, 2014 letter notifying the appellant of his appointment describes the type and length of his appointment in terms that would apply to a Veterans Recruitment Appointment (VRA), which is distinct from a VEOA appointment. IAF, Tab 3 at 8; see 5 C.F.R. part 307. For purposes of this appeal, whether the appellant received a VRA or VEOA appointment is immaterial because, as set forth in 5 C.F.R. § 307.105 , “any individual serving under a VRA, whose employment under the appointment 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,” which includes the right to appeal wh at is at issue here, set forth in 5 C.F.R. § 315.806

.3

court, and prohibited him fr om possessing or using any public or private data encryption technique or program. Id. at 24. The terminat ion notice also stated that, during his employment, th e appellant failed to disclo se to the agency that his computer access and use was in violation of his probati on agreement and that his inability to use the agency’s computer sy stem prevented him from performing his job duties. Id. at 25. ¶3 The appellant filed a Board appeal challenging his termination and requesting a hearing. IAF, Tab 1 at 2, 4. The administrativ e judge issued an order informing him of his burden to establish the Board’s jurisdiction and directing him to file evidence and argume nt to prove that hi s appeal was within the Board’s jurisdiction. IAF, Tab 2 at 3-5. In response, the appellant did not allege that he was an empl oyee with appeal rights unde r 5 U.S.C. chapter 75, but rather, argued that the Boar d has jurisdiction pursuant to 5 C.F.R. § 315.806 (c) because he was terminated for preappointme nt reasons and the agency failed to afford him the procedural protections set forth in 5 C.F.R. § 315.805 . IAF, Tab
13 at 3. He further assert ed that the agency errone ously determined that his performance of his job dutie s violated his probation ag reement because, in 2012,
a modified court order was entered a llowing him to access and use computers subject to the terms of a computer and internet monitoring program, and his probation officer had granted him permission to take the job after speaking with a human resources specialist and obtaining a copy of the pos ition description. IAF, Tab 3 at 16, 22

- 23, Tab 10 at 5-6. ¶4 The agency moved to dism iss the appeal for lack of jurisdiction, arguing
that it terminated th e appellant for postappointment re asons. IAF, Ta b 9 at 4-8. According to the agency, it did not learn of the specific terms of the appellant’s probation agreement until 2 months after his appointment, and it subsequently
terminated him based on the conditions of his probation, which prohibited his use of a computer with online ac cess without prior court a pproval, and hi s failure to4

disclose that the terms of his proba tion agreement would prevent him from performing his job duties. Id. at 5. ¶5 Without holding the appellant’s requested hearing, the ad ministrative judge dismissed the appeal for lack of jurisdicti on. IAF, Tab 14, Initial Decision (ID). The administrative judge ruled that the appell ant was terminated for postappointment reasons beca use, although the conditions of the appellant’s probation existed prior to his appointment, he was not terminated based on the existence of the probation c onditions themselves, but ra ther, based on his failure to inform the agency that he was viol ating the terms of his probation after he began his employment and used agency computer systems. ID at 8-9. ¶6 The appellant has filed a petition for review in which he reasserts his argument that he was terminated for pr eappointment reasons and disputes the merits of the agency’s termination deci sion. Petition for Review (PFR) File, Tab 1 at 3-6. The agency has opposed the petition for review. PFR File, Tab 3. The appellant ha s filed a reply. 2PFR File, Tab 4.

ANALYSIS ¶7 The Board’s jurisdiction is limited to those matter s over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). Th e appellant bears the

2 The agency served the appellant with its response on April 25, 2016. PFR File, Tab 3 at 9; see 5 C.F.R. § 1201.4 (j), ( l ). The Board’s regulations provide 10 days to file a reply after the date of se rvice of the agency’s response. 5 C.F.R. § 1201.114 (e). The Clerk of the Board advised the appellant of this deadline. PFR File, Tab 2 at 1. However, the appellant did not file his re ply until May 18, 2016. PF R File, Tab 4. The appellant failed to accompany his reply wi th a motion showing good cause for this untimely filing, and we see no reason to determine good cause exists based on the existing record. See 5 C.F.R. § 1201.114 (g). Accordingly, we ha ve not considered the appellant’s reply in reaching our decision in this matter. On remand, however, the appellant may raise the various arguments he made in his reply concerning why the agency erroneously determined that he was violating his probation agreement to the extent they are relevant to the issue of harmful error.5

burden of proving the Board’s jurisd iction by preponderant evidence. 5 C.F.R. § 1201.56 (b)(2)(i)(A). Under 5 C.F.R. § 315.806 (c), a probationary employee
whose termination was based in whole or in part on conditions arising before his appointment may appeal his termination to the Board on the ground that it was not effected in accordance with the pr ocedural requirements set forth in 5 C.F.R. § 315.805

. 3 In such appeals, th e merits of the agency’s termination decision are
not before the Board. Hope v. Department of the Army , 108 M.S.P.R. 6 , ¶ 7 (2008). Rather, the only issue is whethe r the agency’s fail ure to follow the procedures prescribed in section 315.805 was harmful error. Hope , 108 M.S.P.R.
6 , ¶ 7. If there was harmfu l error, then the ag ency’s action must be set aside. Id. ¶8 We agree with the appellant that his termination was based, at least in part, on preappointment reas ons and he was, therefore, entitled to the procedural requirements set forth in 5 C.F.R. § 315.805 . The agency’s termination letter specifically cites the terms of the appellant’s June 22, 2007 court-ordered probation agreement. IAF, Tab 7 at 24. Both below and on review, the agency
has maintained that it terminated the appellant based on the conditions of his probation agreement, as well as on his failu re to disclose that such conditions would prevent him from performing his job duties. 4 IAF, Tab 9 at 5; PFR File,

3 The appellant does not dispute the administ rative judge’s findings that he is not an employee who has a statutory right of appeal to the Board under 5 U.S.C. chapter 75 and does not allege that his termination was based upon either partisan political reasons or marital status, which would give rise to a regulatory right of appeal under 5 C.F.R § 315.806 (b). ID at 7.

4 The agency also contends that, prior to accepting employment , the appellant failed to inquire as to whether the job would require computer usage that violated the terms of his probation agreement and failed to disclose the specific terms of his probation agreement. IAF, Tab 7 at 6. Such reas ons, though clearly preappointment, were not mentioned in the agency’s termination notic e and so we have not considered them. Id. at 24-25; see Pope v. Department of the Navy , 62 M.S.P.R. 476 , 478 (1994) (stating that an agency may not retrospectively recharac terize the expressly stated reasons for an action).6

Tab 3 at 5. The agency has argued, how ever, that the appellant was terminated based on postappointment reasons because his probati on agreement was merely a preexisting condition that affected his postappointment performance by preventing him from performi ng his job duties. IAF, Tab 9 at 6-7; PFR File,
Tab 3 at 6-7. ¶9 We disagree and find that the cases th at the agency relies upon in support of this argument are distinguishable. In Von Deneen v. Department of Transportation , 33 M.S.P.R. 420 , 423, aff’d , 837 F.2d 1098 (Fed. Cir. 1987) (Table), the Board found that a probati oner was terminated for postappointment reasons when, after his appoi ntment, he was denied a se curity clearance required for his position, although the basis for denying the clearance was a condition that existed prior to his appointment. Similarly, in Rivera v. Department of the Navy , 114 M.S.P.R. 52 , ¶ 8 (2010), the Board found th at, even assuming that a probationer’s postappointment failure to qualify for a Government credit card was attributable to his preappointment credit history, his termina tion for failure to secure approval for the card constituted a postappointme nt reason for termination because securing the card wa s a requirement of his posi tion, which he failed to satisfy. ¶10 In contrast, in the presen t case, the appellant was not terminated because, following his appointment, he was denied or failed to obt ain a condition of employment based on a preexis ting condition. Rather, he was terminated based on the terms of the probation agreement, a condition that existed prior to his appointment. Moreover, unlike Von Deneen and Rivera , it is not clear that the appellant’s probation agreement prevented him from performing his job duties or that he failed to satisfy a requirement of his position as a result of his probation agreement. Although the agen cy’s termination notice ci tes to the conditions of the appellant’s June 22, 2007 probation ag reement prohibiting his computer use without prior court approval, IAF, Tab 7 at 24, the r ecord reflects that such conditions were subsequent ly modified by the court on August 29, 2012, over7

2 years prior to the appell ant’s appointment, to permit him to use and access computers under the terms of the U.S. Probation and Pretrial Services Office Computer and Internet Monitoring Pr ogram, IAF, Tab 3 at 13-15, 19-21. Additionally, the appellant submitted emails from his probation officer in which
she indicates that she allowe d the appellant to accept th e job after speaking with a human resources specialist regarding the details of the job duties, obtaining a copy of the job description, and verifying that the agency was aware of the appellant’s conviction and that he wa s under a term of supervision. Id. at 22-23. In an email, the appellan t’s probation officer also st ates that she would never have allowed him to accept the position if she thought that it would have been in
violation of the term s of his probation. Id. at 16. ¶11 We find the decision in Jones v. Department of Justice , 524 F. App’x 660 (Fed. Cir. 2013), to be instructive. 5 In Jones , the agency terminated the employment of a probationary Cook Supervis or after receiving the results of an internal investig ation into his misconduct in a prior position as a Correctional
Officer. Jones , 524 F. App’x at 661-62. Although the probationer’s preappointment misconduct was not subs tantiated until the postappointment receipt of the report, the court found that the Board correctly concluded that he was terminated for preappointment reasons. Id. at 663-64. ¶12 Similarly, here, the agency contends that it did not become aware of the specific terms of the appe llant’s probation agreement un til 2 months after he was appointed, and it subseque ntly terminated him fo r reasons including “the conditions of [his] probation” concerning computer acce ss and monitoring. IAF, Tab 9 at 5; PFR File, Tab 3 at 5. We find that the agency based the appellant’s termination, at least in part, on the conditions of hi s probation and that these

5 The Board may follow a nonpre cedential decision of the U.S. Court of Appeals for the Federal Circuit where, as here, it finds its reasoning persuasive. See, e.g. , Erlendson v. Department of Justice , 121 M.S.P.R. 441 , ¶ 6 n.2 (2014).8

conditions arose before his appointment. IAF, Tab 3 at 24-25, Tab 9 at 5. The agency concedes that the appellant identified his c onviction and pr obation status on his declaration for Federal employmen t, dated October 24, 2014, but does not explain why it hired him without inquir ing about the specific terms of his probation status. IAF, Tab 9 at 4; PFR File, Tab 3 at 4. Nor does the agency dispute the appellant’s asse rtions that his probation officer contacted a human resources specialist to confirm that the agency was awar e of the appellant’s prior
bank fraud conviction and that the appellant was curren tly on Federal supervision and needed to comply with all of the conditions of his supervision. IAF, Tab 3 at 16, 22-23, Tab 10 at 5. Even if the agency did not become aware of the specific conditions of th e appellant’s probation agr eement until after he was appointed, the timing of the agency’s di scovery of the specific terms of his preappointment probation agreement does not render the appellant’s termination
to be based on conditions arising posta ppointment. ¶13 This is not to say that, after becoming aware of the terms of the appellant’s probation agreement, the agency could not have terminated his employment during his probationary period. The agency was n onetheless required to afford the appellant the procedural protections set forth in 5 C.F.R. § 315.805 . It is undisputed that the agency did not provide th e appellant with these procedural rights, which include advance notice of the termination, an opportunity to respond, and consideration of the response. IAF, Tab 9 at 8; see 5 C.F.R. § 315.805 . Therefore, the releva nt inquiry is whether th e agency’s failure to follow these procedures was harmful error. Hope , 108 M.S.P.R. 6 , ¶ 7. ¶14 It is well established that harmful error cannot be pres umed; an agency error is harmful only when the record show s that it was likely to have caused the agency to reach a conclusi on different from the one it would have reached in the
absence or cure of the error. Id. , ¶ 8; 5 C.F.R. § 1201.4 (r). The burden is on the appellant to show that the pr ocedural error was harmful. 5 C.F.R. § 1201.4 (r).
Because the administra tive judge found that the Board lacks jurisdiction over this9

appeal, the record is not developed on th e issue of whether the appellant met his burden of establishing that the agency would not have terminated him had it provided him with advance notice of the termination, an opportunity to respond, and consideration of his response. On remand, the administrative judge shall
render a new decision after affording the parties th e opportunity to present evidence and argument on this issue.

ORDER ¶15 For the reasons discussed above, we fi nd that the appellan t has established the Board’s jurisdiction over this matter pursuant to 5 C.F.R. § 315.806 (c), and
we remand this case to th e field office for further ad judication in accordance with this Opinion and Order.

FOR THE BOARD:

________________ ______________ Jennifer Everling Acting Clerk of the Board Washington, D.C.