UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

ROBIN R. MCFARLAND, Appellant,

v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES, Agency. DOCKET NUMBER PH

- 315H

- 14

- 0578

- B

- 1

DATE: February 13, 2015



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Robin R. McFarland , Harrisburg, Pennsylvania, pro se. Roger L. Gumbs, Jr. , Baltimore, Maryland, 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 remand initial decision, which dismissed her termination appeal for lack of jurisdiction and denied her request for corrective action under the Uniformed Services Employment and Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301

- 4333)

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as signific antly contributing to the Board’ s case law. See 5 C.F.R. § 1201.117 (c).2

(USERRA) . 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 interpretat ion 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 discretio n, 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 pe tition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).

BACKGROUND ¶2 The a ppellant filed a Board app eal challenging her termination and requesting corrective action under USERRA. Initial Appeal File (IAF), Tab 1. The administrative judge dismissed the appeal for failure to prosecute. IAF, Tab 13 , Initial Decision

. The appell ant filed a petition for review of that decision.
T he Board vacated the decision and remanded the case for further adjudication because there had been an issue with mailed service of Board orders (and possibly the agency file) due to an incorrect address for the appellant in Board records. Petition for Review File, Tab 4 , Remand Order

. On remand, the appellant waived any right she had to a hearing . Remand Appeal File (RAF) , Tab 20 at 4. Thus , the administrative judge based the remand initial decision s olely on the written record. RAF, Tab 23, Remand Initial Decision (RID). He dismissed the appellant’s termination appeal for lack of jurisdiction and denied corrective action under USERRA. RID. The appellant has filed a petition for review3
challenging the remand initial decision. Remand Petition for Review (RPFR) File, Tab 1

. The agency has not filed a response.

DISCUSSION OF ARGUME NTS ON REVIEW The administrative judge properly dismissed the appellant’s termination appeal for lack of jurisdiction

. ¶3 Th e Board’ s jurisdiction is not plenary; it is limited to those matters 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). The appellant bears the burden of proving, by preponderant evidence, that the Board has jurisdiction over h er appea l. 2 5 C.F.R. § 1201.56 (a)(2)(i). In order to establish Board jurisdiction under 5 U.S.C. chapter 75, an individual must, among other th ings, show that s he satisfies one of the definitions of “employee” in 5 U.S.C. § 7511 (a)(1). 5 U.S.C. § 7513 (d); Walker v. Departme nt of the Army , 119 M.S.P.R. 391 , ¶ 5 (2013)

. For an individual in the competitive service, this means that s he must either: (1) not be serving a probationary or trial peri od 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. 3 5 U.S.C. § 7511 (a)(1)(A); Walker , 119 M.S.P.R. 391 , ¶ 5. The administrative judge properly found that the Board lacks jurisdiction over the appeal because the appellant was serving a probationary period a nd she had not completed at least 1 year of federal service. RID at 6

- 7.

2 A preponderance of the evidence is th e degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find th at a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56 (c)(2).
3 I ndividuals in the competitive service who do not satisfy the definition of “employee” under 5 U.S.C. § 7511 (a)(1)(A) may nevertheless have the right to appeal a termination to the Board under 5 C.F.R. § 315.806 based upon assertions that: (1) the employee was discriminated against based on her marital status; (2) the agency actio n was based on partisan political reasons; or (3) the agency action was based (in whole or part) on pre

appointment reasons and the agency did not follow the procedures of 5 C.F.R. § 315.805

. Walker , 119 M.S.P.R. 391 , ¶ 5. However, the appellant makes no such assertions and we therefore need not address thi s regulatory right to appeal.4
¶4 On review, the appellant contends , as she did below, that she was not a
pr obationary employee because: ( 1 ) her Standard Form (SF) 50 previously showed that she was a permanent employ ee, but was illegally changed; ( 2 ) she was told by an agency employee that she would not have to serve a probationary period; and ( 3 ) the job announcement for her position did not necessarily require a probationar y period. RPFR File, Tab 1 at 3

- 4; see RAF , Tab 20 at 3

- 4. The appellant also argues that the probationary period should be waived because she has prior state government service. RPFR File, Tab 1 at 3. ¶5 First, regarding the appellant’ s argument concerning her SF

- 50, a n employee’ s SF

– 50, although the customary document used to memorialize a personnel action, is not controlling as to the nature of the employee’s appointment

. Scott v. Department of the Air Force , 113 M.S.P.R. 434 , ¶ 8 (2010)

. Rather, the Board looks to the totality of the circumstances in determining the nature of the appointment

. Id

. The appellant argues that one of the copies of her SF

- 50 stated that her tenure group was “permanent.” RPFR File, T ab 1 at 3. The SF

- 50’s submitted by the agency, including the appointment SF

- 50, RAF, Tab 6 at 10 , and the corrected general adjustment SF

- 50, id . at 11, re flect that the appellant’s tenure group was “conditional.” The appointment SF

- 50 also reflect s tha t the appellant ha d no prior federal civilian service

. Id . at 10

. Accordingly, based upon the totality of the circumstances, and regardless of any apparent mistaken SF

- 50, we find that the appellant was a probationer

. ¶6 Next, the appellant again argues tha t she should not be required to serve a probationary period both because the job announcement for her position stated that the position “may” require a probationary period and because an agency employee told her that her position did not require a probationary period . W e agree with the administrative judge that these arguments are not persuasive . RID at 6

- 7 ; se e , e.g. , RPFR File, Tab 1 at 3

- 4 . Where a probationary period is
requ ired , it cannot be waived by the parties

. Cunningham v. Department of the Army , 119 M.S.P.R. 147 , ¶ 5 (2013). Therefore, regardless of the appellant’s5
interpretation of the jo b announcement or the alleged statement of an agency employee, the appellant was required to serve a probationary perio d

. See 5 C.F.R. § 315.801 (e)

. ¶7 Lastly, the appellant asserts that the probationary period should be waived because of her prior state government service. RPFR File, Tab 1 at 3. However, there is nothing in the law that allows for waiver of the probationary period based upon nonfederal service. T he Board therefore lacks jurisdiction over the appellant’s termination appeal. The administrative judge properly denied corrective action under USERRA. ¶8 In order to prevail on the merits in a USERRA claim , there must be an initial showing by the employee, by preponderant evidence, that the employee’s military status was at least a motivating or substantial factor in the agency action. Strausbaugh v. Government Printing Office , 117 M.S.P.R. 566 , ¶ 11 , aff’d , 493 F. App’x 61 ( Fed. Cir. 2012)

. Here, the appellant asserts that a coworker stated that management officials believed they were forced to hire combat veterans , planned on getting rid of these individuals as quickly as possible , and believed that combat veterans were “damaged goods.” R PFR File, Tab 1 at 5; see RAF, Tab 5 at 3, Tab 12 at 3

- 4, Tab 20 at 4 . We agree with the administrative judge that these allegations alone do not meet the appellant’s burden of proof concerning her USERRA claim , and we therefore find that the administrative judge properly denied corrective action under USERRA

. Strausbaugh , 117 M.S.P.R. 566 , ¶¶ 12

- 13 ( finding that the appellant presented no evidence that his military service was a motivating factor in his termination).

NOTICE TO THE APPELL ANT 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:6
United States Court of App eals 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 dea dline must be dismissed. See Pinat v. Office of Personnel Management , 931 F.2d 1544 (Fed. Cir. 1991). If you need further information about you r 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 co urt'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 represen tation 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 a ppellants before the court. The Merit Systems7
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:

Washington, D.C. ______________________________ William D. Spencer Clerk of the Board