UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

APRIL PINSONNEAULT,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

NY-315H-17-0203-I-1

DATE: May 19, 2022

THIS ORDER IS NONPRECEDENTIAL1

April Pinsonneault, West Point, New York, pro se.

Matthew J. Geller, Esquire, West Point, New York, for the agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

REMAND ORDER

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

dismissed her probationary termination appeal for lack of jurisdiction. For the 

reasons discussed below, we GRANT the appellant’s petition for review, 

AFFIRM the finding that the Board lacks jurisdiction over the appellant’s 

termination appeal under 5 U.S.C. chapter 75 and 5 C.F.R. part 315, VACATE 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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 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

finding that the appellant failed to nonfrivolously allege jurisdiction under the 

Uniformed Services Employment and Reemployment Rights Act of 1994 

(USERRA), and REMAND the case to the New York Field Office for further 

adjudication in accordance with this Remand Order.

BACKGROUND

¶2 Effective September 19, 2016, the U.S. Military Academy appointed the 

appellant to an Information Technology Specialist position in the competitive 

service. Initial Appeal File (IAF), Tab 1 at 8, Tab 5 at 9. Although originally 

subjected to a 1-year probationary period, this was corrected to a 2-year 

probationary period due to the National Defense Authorization Act for Fiscal 

Year 2016 (NDAA for 2016), Pub. L. No. 114-92, § 1105(a)(1), 129 Stat. 726, 

1023-24 (2015) (codified at 10 U.S.C. § 1599e), which requires 2-year 

probationary periods for employees hired within the Department of Defense after

November 25, 2015. IAF, Tab 1 at 7. On August 1, 2017, the agency terminated 

the appellant, prior to the completion of both the original 1-year probationary 

period and the corrected 2-year probationary period. Id. at 11-15. 

¶3 The appellant filed an appeal challenging her termination, alleging 

“Harmful procedural Error and Violation of Uniformed Services Employment 

Rights.” Id. at 5. She further asserted that she was being terminated for failure to 

follow “processes that don’t exist [and] that aren’t followed by anyone ,” and that 

there is no cognizable justification for her termination. Id. Finally, she stated, “I 

verbally notified [the agency] on July 11th, 2017 that I’d been selected for a 

mobilization tour date with start date of August 19th, 2017 and waiting for my 

orders.” Id. 

¶4 In an acknowledgment order, the administrative judge notified the appellant 

of how to establish jurisdiction over her appeal. IAF, Tab 2 at 2-5. In a 

subsequent jurisdictional order, the administrative judge recognized that the 

appellant’s initial appeal appeared to include an allegation of a USERRA 
3

violation and thus notified the appellant of how to establish jurisdiction over such 

USERRA claims. IAF, Tab 3. 

¶5 In her response to the jurisdiction order, the appellant reiterated her claim 

of a violation of “Uniformed Services Employment Rights,” and she cited

USERRA’s prohibition on discrimination under 38 U.S.C. § 4311(a).

2

 IAF, Tab 9 

at 7, 24. She also submitted documentation of a successful performance 

evaluation, dated March 30, 2017, and a resulting 16-hour time off award given 

less than 2 months before her termination. Id. at 27-29. Additionally, the 

appellant cited 5 C.F.R. § 1201.56(c)(1) for the proposition that the Board has 

jurisdiction over her claim that the agency committed harmful error in arriving at 

its decision to terminate her. Id. at 6.

¶6 The administrative judge issued an initial decision, dismissing this appeal 

for lack of jurisdiction. IAF, Tab 12, Initial Decision (ID). She found that

(1) the appellant failed to show that she was an “employee” as defined by 

5 U.S.C. § 7511(a), (2) the appellant failed to nonfrivolously allege jurisdiction 

under 5 C.F.R. §§ 315.805–.806, and (3) the appellant failed to nonfrivolously 

allege jurisdiction under USERRA. ID at 4-8. Specifically, the administrative 

judge found that the appellant failed to nonfrivolously allege that her 

mobilization was a “substantial or motivating factor” in the agency’s decision to 

terminate her during her probationary period. ID at 7. Moreover, the 

administrative judge held that, to meet her jurisdictional burden of showing that 

her military service was a motivating factor in her termination, the appellant 

“must nonfrivolously allege the agency ‘relied on, took into account, considered, 

or conditioned its decision’ on her military service.” Id. (quoting Erickson v. 

U.S. Postal Service, 571 F.3d 1364, 1368 (Fed. Cir. 2009) (discussing the 

 

2

In her response, the appellant incorrectly cited 5 C.F.R. § 1201.56(a)(3) for 

establishing jurisdiction over a USERRA allegation, but that section specifically says it 

does not apply to USERRA allegations. 5 C.F.R. § 1201.56(a)(3); IAF, Tab 9 at 7. 

Presumably, she meant to cite to 5 C.F.R. § 1201.57(a)(3), which applies to USERRA 

appeals. 
4

appellant’s initial burden during adjudication of the merits phase of a USERRA 

claim)). The administrative judge additionally found that, even after being given 

an opportunity to respond to the USERRA jurisdictional order, “the appellant’s 

subsequent pleadings were devoid of any additional information shedding any 

additional light on her claim.” ID at 8. 

¶7 The appellant has filed a petition for review disputing the facts underlying 

her termination. Petition for Review (PFR) File, Tab 1 at 4-5. She further states

that she was mobilized for military service “within 3 weeks of [the agency] 

unfairly terminating me in the midst of a mobilization process.” Id. at 4. The 

remainder of the appellant’s petition focuses on her dissatisfaction with the 

appeal process and lack of rights afforded to probationary employees. Id. at 4-5. 

The agency has responded to her petition for review. PFR File, Tab 3. 

DISCUSSION OF ARGUMENTS ON REVIEW

The Board lacks jurisdiction over the appellant’s probationary termination claim 

under 5 U.S.C. chapter 75 and 5 C.F.R. part 315.

¶8 The Board’s jurisdiction is limited to those matters over which it has been 

given jurisdiction by law, rule, or regulation. LeMaster v. Department of 

Veterans Affairs, 123 M.S.P.R. 453, ¶ 7 (2016). Generally, to qualify as an 

“employee” with adverse action appeal rights to the Board, an individual in the 

competitive service must show that she is not serving a probationary period under 

an initial appointment or has completed 1 year of current continuous service 

under an appointment other than a temporary one limited to 1 year or less.3 

5 U.S.C. § 7511(a)(1)(A); Henderson v. Department of the Treasury,

 

3 As the administrative judge observed, the agency corrected the appellant’s Standard 

Form 50 to reflect a 2-year probationary period. ID at 2; IAF, Tab 5 at 10. It made this 

change to comply with the NDAA for 2016. 10 U.S.C. § 1599e. In the initial decision, 

the administrative judge incorrectly cited section 1599a for this proposition, but was in 

fact referencing 1599e. ID at 2. Because the appellant was terminated within 1 year, 

the Board need not determine whether a 1- or 2-year probationary period is applicable 

here. 
5

114 M.S.P.R. 149, ¶ 9 (2010). Additionally, the Board has jurisdiction over the 

termination of a probationary employee if her termination was based on marital 

status or partisan political reasons. 5 C.F.R. § 315.806(b); see Green-Brown v. 

Department of Defense, 118 M.S.P.R. 327, ¶ 5 (2012) (discussing the two-step 

process for establishing Board jurisdiction over such claims). Furthermore, under 

5 C.F.R. § 315.806(c), a probationer whose termination was based on 

preappointment reasons may appeal on the ground that her termination was not 

effected in accordance with the procedural requirements of section 315.805. West 

v. Department of Health & Human Services, 122 M.S.P.R. 434, ¶ 7 (2015).

¶9 The appellant began working for the agency on September 19, 2016, and 

was terminated effective August 1, 2017. IAF, Tab 1 at 8, 11. She has not 

claimed any prior Federal civilian employment and her prior active-duty military 

service does not count towards the 1 year of current continuous service

requirement. Cunningham v. Department of the Army, 119 M.S.P.R. 147, ¶ 6 

(2013). As such, we agree with the administrative judge that the appellant is not 

an “employee” for purposes of chapter 75 and thus the Board does not have 

jurisdiction over her termination appeal.

¶10 Moreover, the appellant has not alleged that her termination was based on 

marital status, partisan political reasons, or preappointment reasons. As such, we 

further agree with the administrative judge that the appellant has failed to make a 

nonfrivolous allegation that she has a regulatory appeal right under 5 C.F.R. 

§ 315.806.

¶11 The administrative judge did not address the appellant’s claims of harmful 

error. IAF, Tab 1 at 5, Tab 9 at 6. Nevertheless, we find this oversight harmless. 

See Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981) (finding the 

administrative judge’s procedural error is of no legal consequence unless it is 

shown to have adversely affected a party’s substantive rights). Because the 

Board has no jurisdiction over the appellant’s termination as an otherwise 

appealable action, the Board has no independent jurisdiction to adjudicate her 
6

harmful error claims. Hurston v. Department of the Army, 113 M.S.P.R. 34, ¶ 11 

(2010). The regulation cited by the appellant as supporting Board jurisdiction 

over her harmful error claim does not change that result. Section 1201.56(c)(1) 

requires reversing an otherwise appealable action if the appellant shows harmful 

error. Because the appellant has not established jurisdiction over an otherwise

appealable action, this regulation’s discussion of harmful error is inapplicable 

here. 

The appellant has established jurisdiction over her USERRA discrimination claim 

under 38 U.S.C. § 4311(a).

¶12 Under USERRA, the Board has jurisdiction over a “person” alleging 

discrimination in Federal employment on account of prior military service or 

military obligations. 38 U.S.C. §§ 4311(a), 4324(b); Henderson v. U.S. Postal 

Service, 95 M.S.P.R. 454, ¶ 5 (2004). Regardless of the appellant’s status as an 

“employee” outlined above, individuals who have not completed 1 year of current 

continuous service nonetheless qualify as “person[s]” under USERRA, and thus 

are not excluded from filing appeals under the provisions of that statute. 

Henderson, 95 M.S.P.R. 454, ¶ 6.

¶13 USERRA provides in relevant part that “[a] person who is a member of . . . 

or has an obligation to perform service in a uniformed service shall not be 

denied . . . retention in employment . . . on the basis of that membership . . . or 

obligation. 38 U.S.C. § 4311(a). To establish Board jurisdiction over a USERRA 

discrimination appeal, the appellant must nonfrivolously allege (1) she performed 

duty or has an obligation to perform duty in a uniformed service of the 

United States; (2) the agency denied her initial employment, reemployment, 

retention, promotion, or any benefit of employment; and (3) the denial was due to 

the performance of duty or obligation to perform duty in the uniformed service. 4 

 

4 An allegation generally will be considered nonfrivolous when, under oath or penalty 

of perjury, an individual makes an allegation that is more than conclusory, is plausible 

on its face, and is material to the legal issues in the appeal. 5 C.F.R. § 1201.4(s). 
7

Wilson v. Department of the Army, 111 M.S.P.R. 54, ¶ 8 (2009); 5 C.F.R. 

§ 1201.57(b).

¶14 It is undisputed that the appellant both previously performed duty and had 

an obligation to perform duty in a uniformed service of the United States. IAF, 

Tab 1 at 1, Tab 9 at 555-56. Additionally, the appellant’s termination during her 

probationary period constitutes a denial of “retention in employment.” Pruitt v. 

Department of Veterans Affairs, 97 M.S.P.R. 495, ¶ 5 (2004) (finding that 

termination during probation is denying “retention in employment” within the 

meaning of 38 U.S.C. § 4311(a)). The only remaining question is whether the 

appellant has nonfrivolously alleged that the agency’s denial was “due to” the 

performance or obligation to perform her duty in a uniformed service. We find 

that she has. 

¶15 Contrary to the administrative judge’s analysis, the appellant’s requirement 

to prove that her military obligation was a “substantial or motivating factor” in 

the agency’s action does not arise at the jurisdictional stage and is not analyzed 

under the nonfrivolous standard. See Lazard v. U.S. Postal Service, 93 M.S.P.R. 

337, ¶ 9 (2003) (distinguishing between the sufficiency of allegations at the 

jurisdictional stage and the merits stage of a USERRA appeal). Likewise, the 

administrative judge incorrectly held that, to prove her military obligation was a 

motivating factor in her termination, the appellant must nonfrivolously allege the 

agency relied on, took into account, considered, or conditioned its decision on her 

military obligation. ID at 7. This finding incorrectly conflates the appellant’s 

burden at the jurisdictional and merits determination stages. The Erickson

decision, on which the administrative judge relied, applies that standard to a

merits determination, not to a jurisdictional finding. Erickson, 571 F.3d at 1368.

¶16 It is well established that a claim of discrimination under USERRA should 

be broadly and liberally construed in determining whether it is nonfrivolous for 

jurisdictional purposes, particularly when, as here, the appellant is pro se. 

Wilson, 111 M.S.P.R. 54, ¶ 9. The weakness of the assertions in support of a 
8

claim is not a basis to dismiss a USERRA appeal for lack of jurisdiction; rather, 

if the appellant fails to develop her contentions, her USERRA claim should be 

denied on the merits. Id. An appellant’s allegation in general terms that the 

agency denied her retention in employment due to her uniformed service is

sufficient to establish USERRA jurisdiction. See Searcy v. Department of 

Agriculture, 115 M.S.P.R. 260, ¶ 8 (2010) (finding vague and unspecific 

allegations that the agency denied employment in a position because of prior 

uniformed service was sufficient to establish USERRA jurisdiction); Swidecki v. 

Department of Commerce, 113 M.S.P.R. 168, ¶ 9 (2010) (finding that the 

appellant established USERRA jurisdiction when he asserted that he performed 

duty in a uniformed service of the United States, the agency was aware of his 

prior uniformed service, and it denied him employment in a temporary position in 

part because of his prior uniformed service).

¶17 We recognize that the appellant did not submit any concrete evidence to 

substantiate her claims that the agency terminated her during her probationary 

period because of her prior duty and obligation to perform duty in a uniformed 

service. However, the appellant has alleged that she was terminated within 

1 month of notifying the agency of her mobilization, and that her termination 

violated her rights as a member of the uniformed services. She also has alleged 

that the agency’s proffered reasons for termination were disprovable, and 

suggested that other employees engaging in similar conduct are not terminated. 

This, coupled with the fact that her termination was less than 2 months after she 

received a time off award, is sufficient to establish a nonfrivolous allegation that 

her termination was due to her obligation to perform duty in the uniformed

services of the United States. See Sheehan v. Department of the Navy, 240 F.3d 

1009, 1014 (Fed. Cir. 2001) (explaining that discriminatory motivation under 

USERRA may be reasonably inferred from factors such as the proximity in time 

between the military activity and the adverse action, inconsistencies between the 
9

agency’s proffered reasons and other actions of the employer, and disparate 

treatment of the appellant compared to similarly situated employees).

¶18 Having found that the Board has jurisdiction over the appellant’s USERRA 

claim, we find that the appellant is entitled to a remand for further development 

of the record and adjudication on the merits of her USERRA claim. The appellant 

elected not to request a hearing in her appeal when she originally filed. IAF, 

Tab 1 at 2. In light of this remand, the administrative judge should provide the 

appellant with another opportunity to request a hearing if she so chooses. See 

Swidecki, 113 M.S.P.R. 168, ¶ 6 (finding an appellant who raises a USERRA 

claim has an unconditional right to a hearing). 

ORDER

¶19 For the reasons discussed above, we remand this case to the New York Field 

Office for further adjudication in accordance with this Remand Order. 5

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board

 

5

The remand initial decision will incorporate the findings from this order and include a 

notice of appeal rights for all claims raised by the appellant.