UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2015 MSPB 34

Docket No. AT-315H-15-0196-I-1

Constance A. West,

Appellant,

v.

Department of Health and Human Services,

Agency.

April 30, 2015

Constance A. West, Lithonia, Georgia, pro se.

Corey Thompson, Atlanta, Georgia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

OPINION AND ORDER

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

dismissed her probationary termination appeal for lack of 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 erroneous 

interpretation 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 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 
2

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 petition for review and AFFIRM the initial decision. 

BACKGROUND 

¶2 Effective November 17, 2013, the agency appointed the appellant to a 

GS-13 Health Scientist position, subject to a 1-year probationary period. Initial 

Appeal File (IAF), Tab 5 at 20. On October 31, 2014, while the appellant was 

still serving her probationary period, the agency notified her that she would be 

terminated from her position, effective November 13, 2014, due to her failure to 

demonstrate an acceptable level of performance. IAF, Tab 1 at 10-11. 

¶3 On December 8, 2014, the appellant filed an appeal with the Board alleging 

that she was terminated for pre-appointment reasons and that the agency failed to 

afford her the procedural protections of 5 C.F.R. § 315.805. IAF, Tab 1 at 5. 

The administrative judge issued an order informing the appellant, as a 

probationary employee, of her burden to establish Board jurisdiction and ordered 

her to file evidence and argument proving that her appeal was within the Board’s 

jurisdiction. IAF, Tab 3 at 2-4. 

¶4 In response, the appellant contended that her termination was based on 

conditions arising before her appointment because a memorandum from her 

supervisor to the division director recommending her termination for failure to 

demonstrate acceptable performance during her probationary period also referred 

to her supervisor’s concerns about hiring the appellant due to her lack of certain 

prior work experience. IAF, Tab 7 at 4, 6. Specifically, her supervisor noted 

that, even though a panel of senior scientists had recommended the appellant for 

the position, she had concerns about hiring her because the appellant had no 

peer-reviewed first author publications, no HIV-related publications, only one 
3

HIV-related poster presentation and HIV-related oral presentation, and no 

peer-reviewed publications in any subject matter since 1996. See id. at 6. 

According to the appellant’s supervisor, she discussed these limitations with the 

appellant’s references and, despite these limitations, decided to hire the appellant 

and use the probationary period to determine her fitness for the position. See id. 

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

issued an initial decision dismissing the appellant’s appeal for lack of 

jurisdiction. IAF, Tab 11, Initial Decision (ID). The administrative judge found 

that the appellant failed to make a nonfrivolous allegation that the agency 

terminated her for pre-appointment reasons because the agency noted the 

shortcomings in the appellant’s prior experience simply as background 

information to put her performance-based termination in context and not as 

independent reasons for her termination. ID at 5. 

¶6 The appellant has filed a petition for review in which she challenges the 

administrative judge’s finding that she was not terminated for pre-appointment 

reasons.

1

 Petition for Review (PFR) File, Tab 1 at 8-10, 12-13. Specifically, the 

appellant contends that the administrative judge erred in finding that her 

pre-appointment work experience deficiencies referenced in the memorandum 

recommending her termination were provided solely as context for her 

performance-based termination and not as additional reasons for her termination. 

Id. The appellant also disputes that her performance during her probationary 

period was unsuccessful and submits, for the first time on review, an email from 

her supervisor showing positive feedback regarding her work performance, which 

 

1

 Although the filing deadline for the appellant’s petition for review was February 16, 

2015, the Clerk of the Board found in a February 20, 2015 notice that the February 18, 

2015 petition for review was timely filed because February 16, 2015, was a federal 

holiday and the Board’s offices were closed on February 17, 2015, due to inclement 

weather. See Petition for Review File, Tab 3. 
4

she contends constitutes new and material evidence. 2 See id. at 11-12, 22. 

Lastly, the appellant asserts that the administrative judge erred in failing to 

provide her with the procedural protections of 5 C.F.R. § 315.805, to which she 

claims she is legally entitled. See id. at 7-8. The agency has filed an opposition 

to the appellant’s petition, and she has filed a reply. PFR File, Tabs 4-5. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 When an agency terminates a probationary employee for reasons based in 

whole or in part on conditions arising before her appointment, it must follow the 

procedures set forth in 5 C.F.R. § 315.805. A probationer whose termination is 

subject to 5 C.F.R. § 315.805 may appeal her termination to the Board on the 

ground that it was not effected in accordance with these procedural requirements. 

5 C.F.R. § 315.806(c). In such appeals, the merits of the agency’s decision 

are not before the Board. Hope v. Department of the Army, 108 M.S.P.R. 6, ¶ 7 

(2008). Rather, if an appellant nonfrivolously alleges that she was terminated 

based in whole or part on pre-appointment reasons, and that the agency failed to 

afford her the procedural protections of 5 C.F.R. § 315.805, then the Board has 

jurisdiction to determine whether the agency, in fact, failed to follow the 

procedures of 5 C.F.R. § 315.805, and, if so, whether such procedural error was 

harmful. See Hope, 108 M.S.P.R. 6, ¶ 7; see also Pope v. Department of the 

Navy, 62 M.S.P.R. 476, 479 (1994). If there was harmful error, the agency action 

 

2 We find that this document does not constitute new and material evidence under 

5 C.F.R. § 1201.115(d) because it would not warrant an outcome different from that of 

the initial decision to the extent it relates to the merits of the agency’s termination 

action and not to the threshold issue of the Board’s jurisdiction. See Le v. U.S. Postal 

Service, 114 M.S.P.R. 430, ¶ 6 (2010); see also Kellum v. Veterans Administration, 

2 M.S.P.R. 65, 67 (1980) (finding that the sufficiency and propriety of the agency’s 

misconduct allegation concerns substantive issues that are immaterial to the appeal, 

unless the Board has jurisdiction over the probationary termination). 
5

must be set aside. Banghart v. Department of the Army, 96 M.S.P.R. 453, 

¶ 6 (2004), aff’d, 137 F. App’x 350 (Fed. Cir. 2005). 

¶8 Based upon our review of the record, we discern no reason to disturb the 

administrative judge’s well-reasoned findings that the appellant failed to 

nonfrivolously allege that the agency terminated her for pre-appointment reasons 

and that the Board therefore lacks jurisdiction over her appeal. The record below 

reflects that the agency’s stated reason for terminating the appellant was 

unsatisfactory performance during her probationary period, a post-appointment 

reason. IAF, Tab 5 at 12; see Walker v. Department of the Army, 119 M.S.P.R. 

391, ¶ 14 (2013) (finding that pre-appointment reasons, or “conditions arising 

before appointment,” include matters such as falsification of an employment 

application and omitting information during a pre-employment interview; they do 

not include post-appointment performance or conduct deficiencies). The agency 

provided supporting evidence, including a memorandum from the appellant’s 

supervisor to the division director summarizing the appellant’s failure to meet 

certain deadlines on four separate occasions as well as documentation relating to 

the appellant’s mid-year performance assessment which identified performance 

deficiencies. IAF, Tab 5 at 16-19. As a result, because the appellant was 

terminated for post-appointment reasons, she was not entitled to the procedural 

protections of 5 C.F.R. § 315.805. 

¶9 We find unavailing the appellant’s claim that the agency’s reference to 

pre-appointment concerns about hiring her for the position in spite of her lack of 

certain qualifications shows that the agency terminated her based on conditions 

arising pre-appointment. PFR File, Tab 1 at 8-10. Notwithstanding its concerns 

regarding the appellant’s prior experience, the agency hired the appellant and 

properly used the probationary period to determine her ability to perform the job 
6

duties of the position. 3 Thus, we agree with the administrative judge that the 

record reflects that the agency did not terminate the appellant due to the noted 

shortcomings in her prior experience but, rather, because of her poor performance 

during her probationary period. See ID at 5. 

¶10 Further, as the administrative judge correctly found, the Board 

distinguishes between a pre-existing condition and the effect that condition has 

on an employee’s performance during her probationary period. See Von Deneen 

v. Department of Transportation, 33 M.S.P.R. 420, 423, aff’d, 837 F. 2d 1098 

(Fed Cir. 1987) (Table); see also ID at 4-5. Even if the appellant’s lack of prior 

experience were an indirect factor in the termination decision, it only would be 

because of its effect on her post-appointment performance and thus would not 

constitute a pre-appointment reason. See Rivera v. Department of the Navy,

114 M.S.P.R. 52, ¶ 8 (2010) (even assuming that the appellant’s failure to qualify 

for a credit card was attributable to his pre-appointment credit history, his 

termination for failure to secure approval for a government credit card 

nonetheless would constitute a post-appointment reason for termination); see also 

Cunningham v. Department of the Army, 119 M.S.P.R. 147, ¶ 8 (2013) (poor 

performance caused by pre-appointment medical condition is actually a 

post-appointment reason for termination); Holloman v. Department of the Navy,

31 M.S.P.R. 107, 109-10 (1986) (attendance problem caused by pre-existing 

medical condition is a post-appointment reason for termination). Accordingly, 

we conclude that the administrative judge properly dismissed the appeal for lack 

of jurisdiction. 

 

3 The appellant argues that there are policy reasons why there should be broader appeal 

rights for probationary employees. PFR File, Tab 1 at 16-19. However, probationary 

employees are purposely afforded limited appeal rights to keep the civil service free 

from prohibited personnel practices while also ensuring that agencies can utilize the 

probationary period to determine whether an appointment should become final. Office 

of Policy and Evaluation, U.S. Merit Systems Protection Board, The Probationary 

Period: A Critical Assessment Opportunity, i-ii (2005). 
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NOTICE TO THE APPELLANT 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:

United States Court of Appeals

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 deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your 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 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, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the United States 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 Merit Systems Protection Board neither endorses the services 
8

provided by any attorney nor warrants that any attorney will accept representation 

in a given case.

FOR THE BOARD:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.