UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SANITA DENISE SIMONS,

Appellant,

v.

DEPARTMENT OF AGRICULTURE,

Agency.

DOCKET NUMBER

DC-0752-15-1179-I-2

DATE: October 21, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Sanita Denise Simons, Stafford, Virginia, pro se.

Glenn E. Cason, Jr., Esquire, Temple, Texas, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed her involuntary resignation appeal for lack of Board 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 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

erroneous interpretation of statute or regulation or the erroneous application of 

the law to the facts of the case; the 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. 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, 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 Effective November 16, 2014, the appellant was appointed to a GS-12 

Human Resources Specialist position with the agency. Simons v. Department of 

Agriculture, MSPB Docket No. DC-0752-15-1179-I-2, Appeal File (I-2 AF), 

Tab 13 at 44. She resigned from that position effective September 20, 2015. 

I-2 AF, Tab 17 at 10-12. Thereafter, the appellant filed a timely appeal with the 

Board alleging that her resignation was involuntary. Simons v. Department of 

Agriculture, MSPB Docket No. DC-0752-15-1179-I-1, Initial Appeal File, Tab 1. 

After the administrative judge dismissed the appeal without prejudice to allow her 

to exhaust her equal employment opportunity complaint remedies, the appellant 

refiled her appeal. I-2 AF, Tab 1, Tab 2 at 8. During the adjudication of the 

refiled appeal, a question arose regarding whether the appellant was serving a 

1-year probationary period at the time of her resignation. I-2 AF, Tab 15 at 1-3. 

The administrative judge informed the appellant of the jurisdictional elements and 

afforded the parties the opportunity to submit additional evidence and argument 

concerning the appellant’s potential probationary status. Id. The appellant 

responded to the order, arguing that she was not serving in a probationary period 

and that she was an “employee” with appeal rights. I-2 AF, Tab 16 at 4-17.
3

¶3 Without holding the appellant’s requested hearing, the administrative judge 

issued an initial decision dismissing the appeal, finding that the appellant was 

serving in a probationary period at the time of her resignation and thus the Board 

lacked jurisdiction over her involuntary resignation claim. I-2 AF, Tab 19, Initial 

Decision (ID) at 4. The administrative judge held that none of the appellant’s 

prior Federal service “tacked” on to her current service and that the appellant had 

not proven that, even though she was a probationer, she was nonetheless an 

“employee” with chapter 75 appeal rights because she could not demonstrate that 

prior to her resignation she completed 1-year of “current continuous service” 

under other than a temporary appointment limited to 1 year or less. Id.

¶4 On review, the appellant reasserts that she was not serving in a probationary 

period at the time of her resignation and that she is an “employee” with Board 

appeal rights under 5 U.S.C. chapter 75. Simons v. Department of Agriculture, 

MSPB Docket No. DC-0752-15-1179-I-2, Petition for Review (I-2 PFR) File, 

Tab 1 at 4, 17. The agency did not respond to the petition for review.

2

 

¶5 An appellant who has not served a full year under her appointment can 

show that she has completed her probationary period, and so is no longer a 

probationer, by “tacking” on prior service if: (1) the prior service was rendered 

immediately preceding the probationary appointment; (2) it was performed in the 

same agency; (3) it was performed in the same line of work; and (4) it was 

completed with no more than one break in service of less than 30 days. Hurston 

v. Department of the Army, 113 M.S.P.R. 34, ¶ 9 (2010); 5 C.F.R. § 315.802(b). 

Here, the record reflects that the appellant’s prior service ended with her 

resignation from a position with the U.S. Marine Corps on December 14, 2013—

more than 11 months before her November 14, 2014 appointment at issue in this

 

2

In May 2018, the appellant filed a motion seeking a dismissal of this appeal without 

prejudice for a period of 6 months. I-2 PFR File, Tab 3. We need not rule on this 

motion as it is now moot. See Currier v. U.S. Postal Service, 72 M.S.P.R. 191, 195 

(1996) (outlining that mootness arises, inter alia, when the issue presented is no longer 

“live”).
4

appeal. I-2 PFR File, Tab 1 at 24; I-2 AF, Tab 13 at 39, 44. Additionally, none 

of the prior service during the period from August 14, 2011, through 

December 14, 2013, that the appellant claims should be tacked to her 

probationary period was completed with the Department of Agriculture. I-2 AF, 

Tab 13 at 32-43. Because the appellant’s prior service did not immediately 

precede her probationary appointment, was not with the same agency, and 

included a break in service of more than 30 days, her prior service does not count 

towards completing her probationary period. See Hurston, 113 M.S.P.R. 34, ¶ 9; 

5 C.F.R. § 315.802(b).

¶6 Alternatively, an appellant can show that, while she may be a probationer, 

she satisfies the definition of an “employee” in 5 U.S.C. § 7511(a)(1)(A)(ii), 

which requires that she “completed 1 year of current continuous service under 

other than a temporary appointment limited to 1 year or less.” Hurston, 

113 M.S.P.R. 34, ¶ 9. The appellant did not identify any other Federal service 

during the 11-month period between her appointments with the Department of 

Agriculture and the U.S. Marine Corps. Instead, she argues that her period of 

Federal service from August 14, 2011, through December 14, 2013, should 

qualify as “current continuous service” sufficient to meet the requirements under 

5 C.F.R. § 752.402. I-2 PFR File, Tab 1 at 17. However, the Board has held that

for competitive-service employees, “current continuous service” means a period 

of employment or service immediately preceding an adverse action without a 

break in Federal civilian employment of a workday. Ellefson v. Department of 

the Army, 98 M.S.P.R. 191, ¶ 14 (2005); see 5 C.F.R. § 752.402. Because the 

appellant only served approximately 11 months at the Department of Agriculture 

and did not have any Federal service immediately preceding the alleged adverse 

action (her constructive discharge), she does not meet the “current continuous 

service” requirement necessary to satisfy the definition of “employee” under 

5 U.S.C. § 7511(a)(1)(A)(ii).
5

¶7 Finally, the appellant highlights a remark provided on one of the Standard 

Form 50s (SF-50) for her appointment to the Department of Agriculture position 

indicating that she had completed her probationary period. I-2 PFR File, Tab 1 

at 17; I-2 AF, Tab 13 at 44. However, a remark in a subsequent SF-50 converting 

the appellant’s term appointment to career-conditional status notes that the 

appointment is “subject to completion of one year initial probationary period 

beginning 11/16/2014.” I-2 AF, Tab 13 at 45 (emphasis removed). A later 

corrected SF-50 again indicates that her probationary period was complete. Id.

at 46.3 Notwithstanding the conflicting SF-50s included in the record, under 

5 C.F.R. § 315.801(a), a 1-year probationary period is contemplated for 

career-conditional appointments in the competitive service. Additionally, the 

failure to inform an individual of her probationary status, without more, does not 

confer employee status on the individual. Calixto v. Department of Defense, 

120 M.S.P.R. 557, ¶ 17 n.6 (2014) (citing Phillips v. Department of Housing & 

Urban Development, 44 M.S.P.R. 48, 52 (1990)). It is undisputed that at the time 

the appellant resigned from her position on September 20, 2015, she had not 

completed 1 year of service in her position with the Department of Agriculture. 

I-2 AF, Tab 13 at 39, 44; Tab 17 at 10-12. As such, the apparent inconsistencies 

on the SF-50s do not affect our analysis in this appeal, or change the fact that the 

appellant’s position was subject to a 1-year probationary period, which she had 

not completed at the time of her resignation. Hurston, 113 M.S.P.R. 34, ¶ 2 n.*.

 

3 Yet another, later corrected SF-50 identifies the appointment as a “TERM APPT 

11/16/14,” suggesting that the appellant was employed in a term position and not a 

career-conditional appointment. I-2 AF, Tab 13 at 48. In the initial decision, the 

administrative judge identified the appellant’s appointment as career conditional. ID 

at 2. However, we need not determine what kind of appointment the appellant was 

completing when she resigned, since we find that she did not complete a 1-year 

probationary period and was not otherwise an “employee” with Board appeal rights.
6

¶8 Accordingly, for the reasons discussed above, we deny the appellant’s 

petition for review and affirm the initial decision dismissing her involuntary 

resignation appeal for lack of jurisdiction.

NOTICE OF APPEAL RIGHTS4

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

 

4

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
7

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular 

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, 10, 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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 
8

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 
9

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.5The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit 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, 10, 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

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
10

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board