UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TERRIA A. MCKNIGHT,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

SF-315H-23-0133-I-1

DATE: May 16, 2024

THIS ORDER IS NONPRECEDENTIAL1

Terria A. Mcknight, Washington, D.C., pro se.

Camille D. Stroughter, Esquire, Oakland, California, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

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,

VACATE the initial decision, and REMAND the case to the Western Regional

Office for further adjudication in accordance with this Remand Order. 

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

¶2 The following facts are undisputed. The agency terminated the appellant

from her competitive-service position as a Contract Specialist, GS–07, during her

probationary period based, at least in part, on preappointment reasons (alleged

false certification on Optional Form 306, Declaration for Federal Employment).

Initial Appeal File (IAF), Tab 8 at 20, 24-25, 32, 36-37. Before her termination,

she received a notice of proposed termination on December 9, 2022. Id. at 32-33.

The proposal invited her to submit a reply to the Executive Director, Human

Resources Operations Office (HR Director), who stated that, upon giving it her

full and impartial consideration, she would issue a written decision. Id. at 32.

On the same day, the appellant emailed her response to the HR Director. Id.

at 27-28. On December 28, 2022, the agency issued a decision, signed by the HR

Director, terminating her effective January 5, 2023. Id. at 24-25. 

¶3 The appellant filed an appeal with the Board mainly arguing the merits of

the action and asserting that the Board had jurisdiction over her appeal under

5 C.F.R. §§ 315.805-.806. IAF, Tab 1 at 5, Tab 5 at 4-8. She requested a

hearing. IAF, Tab 1 at 2. Among other things, she questioned why the notice of

termination did not include the reason for termination or indicate whether her

reply had been considered or evaluated. IAF, Tab 1 at 5, Tab 5 at 4. 

¶4 The administrative judge dismissed the appeal for lack of jurisdiction

without holding the requested hearing. IAF, Tab 10, Initial Decision (ID) at 1.

While acknowledging that the termination decision letter did not specifically

indicate that the agency considered or evaluated the appellant’s reply, he

concluded that her claims that her reply had not been considered were “pro forma,

conclusory allegations short of the nonfrivolous allegation threshold.”

ID at 14-15. He ultimately determined that the appellant received all the

procedural protections set forth under 5 C.F.R. § 315.805, including that her reply

had been provided to the decision maker and given bona fide consideration. Id.

The appellant has filed a petition for review, mostly asserting the same arguments

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she did before the administrative judge. Petition for Review (PFR) File, Tab 1.

The agency has responded, and the appellant has replied. PFR File, Tabs 3-4. 

DISCUSSION OF ARGUMENTS ON REVIEW

Remand is appropriate because the appellant has nonfrivolously alleged that the

agency did not consider her reply to the notice of proposed termination.

¶5 A probationary employee with less than 1 year of current continuous service

has no statutory right to appeal her termination. See 5 U.S.C. § 7511(a); Rivera

v. Department of the Navy, 114 M.S.P.R. 52, ¶ 4 (2010). However, as relevant

here, 5 C.F.R. § 315.806(c) creates a regulatory right of appeal to the Board when

a probationary employee alleges that an agency terminated her for reasons, in

whole or in part, arising before appointment without complying with the

procedural requirements of 5 C.F.R. § 315.805. Rivera, 114 M.S.P.R. 52, ¶ 4.2

Pursuant to 5 C.F.R. § 315.805, a probationary employee is entitled to the

following: (a) advance written notice of the reasons for the proposed action; (b) a

reasonable time to file a written answer and supporting affidavits, which the

agency must consider in reaching its decision; and (c) written notification of the

agency’s final decision at the earliest practicable date, but no later than at the

time the action will become effective, informing the employee of the reasons for

the action and appeal rights. The Board has held that, to be entitled to a

jurisdictional hearing in an appeal by a probationary employee who has been

terminated for alleged preappointment reasons, the appellant must make a

nonfrivolous allegation that the agency’s procedures were not in accordance with

5 C.F.R. § 315.805. Graham v. Department of Justice, 50 M.S.P.R. 285, 288

(1991); see also Walker v. Department of the Army, 119 M.S.P.R. 391, ¶ 6 (2013)

(holding that, if an appellant makes a nonfrivolous allegation of jurisdiction, but a

determination cannot be made based on the documentary evidence, the Board

2

 We agree with the administrative judge that the appellant has not alleged that her

termination was based on partisan political reasons or marital status. ID at 14; see

5 C.F.R. § 315.806(b). 

3
should hold an evidentiary hearing to resolve the jurisdictional question). It is

undisputed that the agency terminated the appellant, at least in part, based on

preappointment conditions. ID at 14; IAF, Tab 8 at 32. For the following

reasons, we find that the appellant has nonfrivolously alleged facts entitling her

to a jurisdictional hearing over her probationary termination pursuant to 5 C.F.R.

§ 315.806. 

¶6 In her petition for review, the appellant reasserts her concern that the final

termination letter does not indicate that the agency considered her reply. PFR

File, Tab 1 at 4, 7-8; IAF, Tab 1 at 5, Tab 5 at 4-6. Indeed, the termination letter

neither mentions the appellant’s reply nor indicates that the agency considered it.

IAF, Tab 8 at 24-25. The December 9, 2022 notice of proposed termination

instructed the appellant to submit her reply, if any, directly to the HR Director,

who, as the designated deciding official, would give it her full and impartial

consideration before making a written decision. Id. at 32. On the same day, the

appellant emailed her reply to the HR Director. Id. at 27-28. It appears that the

HR Director forwarded the appellant’s email on December 20, 2022, at 11:32

a.m., to “Debra D.” Id. at 27. Shortly afterwards, at 12:06 p.m., Debra D.,

Acting Executive Assistant to the HR Director, sent an email to a few agency

personnel, including the HR Director, another person, and a “Deborah I.,” stating

that “Debbie has reviewed this on [the HR Director’s] behalf. Please proceed

with the termination next week.” Id. On December 28, 2022, the agency issued a

decision terminating the appellant. Id. at 24-25. The email thread indicates that

the HR Director did not review the appellant’s reply but that “Debbie” reviewed

it on her behalf. However, it is not clear whether “Debbie” means Debra D.,

Deborah I., or some other individual, or what role that person had at the agency.

Nor is it established whether the reply was properly considered by an agency

official with authority to render a decision on the appellant’s termination. We

find it necessary to remand this appeal for the administrative judge to determine

these issues. See Walker, 119 M.S.P.R. 391, ¶ 12 (remanding to determine

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whether the deciding official with proper authority to effect the termination

without subsequent ratification did so before the appellant completed 1 year of

current continuous service); Vandewall v. Department of Transportation,

52 M.S.P.R. 150, 155 (1991) (remanding to determine whether the appellant had

been terminated during her probationary period, to include finding whether the

deciding official had the authority to terminate the appellant); Ward v.

Department of the Navy, 44 M.S.P.R. 493, 499 (1990) (agreeing that 5 C.F.R.

§ 315.805(b) ordinarily requires that the agency give bona fide consideration to a

probationary employee’s response to a notice of proposed discharge). The agency

asserts that it fulfilled the requirements of 5 C.F.R. § 315.805. PFR File, Tab 3

at 4-5. Yet, the evidence in the record is not sufficiently detailed or corroborative

of the agency’s bare assertions, and, in any event, we will not weigh evidence or

resolve conflicting assertions at this stage. See Milanak v. Department of

Transportation, 90 M.S.P.R. 219, ¶ 10 (2001). 

¶7 Therefore, we find that the appellant is entitled to a jurisdictional hearing

on remand for the administrative judge to determine if the agency failed to follow

the procedure outlined in section 315.805(b). If he does so find, the Board’s

jurisdiction would be established under section 315.806(c). See Keller v.

Department of the Navy, 69 M.S.P.R. 183, 188 (1996) (holding that the agency’s

failure to follow the procedures set forth at 5 C.F.R. § 315.805 in effecting the

appellant’s termination constitutes grounds for Board review). In an appeal under

section 315.806(c), the merits of the agency’s decision to terminate the

probationer are not before the Board. 3 Hope v. Department of the Army,

108 M.S.P.R. 6, ¶ 7 (2008). Rather, the administrative judge must then

adjudicate whether the appellant can demonstrate by a preponderance of the

evidence that the agency’s failure to follow the procedural requirements of

3

 As regards the merits of the appellant’s termination, including her claim of

defamation, the administrative judge correctly determined that the merits of the

termination are not before the Board. ID at 13; PFR File, Tab 1 at 6-7.

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section 315.805 was harmful error. Id., ¶¶ 7-8; Keller, 69 M.S.P.R. at 188-89.

Harmful error cannot be presumed. Hope, 108 M.S.P.R. 6, ¶ 8. If there was

harmful error, then the agency’s action must be set aside. Id., ¶ 7. An agency

commits harmful error only when the record shows that the error was likely to

have caused the agency to reach a conclusion different from the one it would have

reached in the absence or cure of the error. Id., ¶ 8. The burden remains with the

appellant to demonstrate harmful error by preponderant evidence. Id.

The appellant’s remaining arguments are unavailing.

¶8 The appellant asserts that the final termination notice did not give reasons

for the termination as required by 5 C.F.R. § 315.805(c). PFR File, Tab 1 at 8;

IAF, Tab 5 at 4. Though the final termination notice did not spell out the reasons

for the termination, it did state that the decision to terminate had been made in

connection with the December 9, 2022 letter, which had given her advance notice

of the proposed termination due to conditions arising before her appointment.

IAF, Tab 8 at 24. The December 9, 2022 letter explained the reasons for the

proposed termination in detail. Id. at 32. We find that the agency sufficiently

informed the appellant of the reasons for termination as required by 5 C.F.R.

§ 315.805(c). 

¶9 To the extent the appellant is arguing that she is constitutionally entitled to

more due process, PFR File, Tab 1 at 7-9; IAF, Tab 5 at 7, Tab 6 at 18, Tab 9

at 5, her argument is unsuccessful because she is a probationary employee, see

Pope v. Department of the Navy, 62 M.S.P.R. 476, 479 (1994) (holding that the

appellant, as a probationer, was not a public employee who could only be

removed for cause, and thus, her right to pretermination process was not based on

the Constitution; rather, her pretermination procedural rights were based entirely

on 5 C.F.R. § 315.805). Unlike the appellant, who is a probationer with less than

1 year of service, a Federal Government employee who has completed her

probationary period is afforded a number of protections, including, under many

circumstances, the right to appeal adverse actions to the Board. See 5 U.S.C.

6
§§ 7511, 7513. Probationary employees, such as the appellant, do not, however,

have the same procedural rights and may appeal to the Board only under very

limited circumstances. See Rivera, 114 M.S.P.R. 52, ¶ 4; 5 C.F.R. § 315.806. 

ORDER

¶10 For the reasons discussed above, we remand this case to the Western

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

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

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