NOTE: This disposition is nonprecedential 

## United States Court of Appeals for the Federal Circuit

2008-3281 FRANCIS J. WINN, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent, and DEPARTMENT OF HEALTH AND HUMAN SERVICES, Intervenor.

Jacob Y. Statman , Snider & Associates, LLC, of Balt imore, Maryland, for petitioner. Michael A. Carney , Attorney, Office of the Gener al Counsel, Merit Systems Protection Board, of Washington, DC, for respondent. With him on the brief were B. Chad Bungard , General Counsel, and Joyce G. Friedman , Acting Associate General Counsel for Litigation. Dawn E. Goodman , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Wash ington, DC, for intervenor. With her on the brief were Jeanne E. Davidson , Director, and Kirk T. Manhardt , Assistant Director. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3281

FRANCIS J. WINN, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent, and DEPARTMENT OF HEALTH AND HUMAN SERVICES, Intervenor.

Petition for review of the decision of the Merit Systems Protection Board in Case No. PH315H-08-0273-I-1.

___________________________ DECIDED: July 2, 2009

___________________________ Before NEWMAN, RADER and PROST, Circuit Judges.

PER CURIAM Dr. Francis J. Winn appeals t he decision of the Merit Systems Protection Board (“MSPB” or “Board”), dismissing his appeal on the ground that his resignation, uponremoval during the probationary peri od, was not involuntary. We affirm the dismissal. BACKGROUND Effective August 19, 2007 Dr. Winn was appoint ed to a career-conditional position as a Social Science Research Analyst with the Department of Health and Human Services, subject to a one-year probationary period. On November 13, 2007 HHS gave Dr. Winn a written “Notice of Termination during your Probat ionary Period,” stating that his employment would terminate on November 14 at 12:01 am due to inadequate performance, unprofessionalism, and inappropriate communications with colleagues. At about 4:15 pm or 4:30 pm of the same day his supervisor informed Dr. Winn that he had the right to resign voluntarily if he did so by midnight that nigh t, before his termination bec ame effective. This resignation option is set forth in Article 33 of the Master Labor Agreement, American Federation of Government Employees Local 1923, as follows: E. Probationary employees may choose voluntary resignation in lieu of termination at any time prio r to the effective date of their termination. If the probationary employee voluntarily resigns , the employee’s official personnel folder shall not contain an Agen cy comment or finding regarding the resignation. Dr. Winn sent a letter of resignation by facsi mile at 6:58 pm on No vember 13, 2007. The letter stated his immediate resignation, and that th is action did not preclude the right to take “any actions I believe are appropriate to prot ect my rights and reputation.” At 8:48 pm on the same evening Dr. Winn sent an e-mail to hi s supervisor, reiterating his resignation and his “understanding that I may pur sue further action to protect both my professional and personal reputation.” On December 11, 2007 Dr. Winn filed a time ly appeal with the MSPB, stating that his resignation was not voluntary, but was a constructive discharge because the notice of

2008-3281 2termination was fraudulently based on unfounded c harges, and because he was pressured to make an immediate decision to resign. See 5 C.F.R. §1201.56(a)(2)(i) and (c)(2) (2007). The administrative judge (“AJ”) issued an acknowl edgement order directing Dr. Winn to file evidence and argument establishi ng that his appeal was within the Board’s jurisdiction, citing his status as a probationary employee. Dr. Winn, represented by counsel, replied that HHS 1) constructively discharged Dr. Winn, (2) improperly discharged him for preappointment actions, (3) should hav e known that the allegations in the notice of removal could not be substantiated, and (4) discriminated against him on the basis of his marital status. The agency in response pointed out that he had not asserted a st atutory reason for appeal to the MSPB, and that he offered no ev idence of coercion or duress to resign. The AJ issued a show cause order info rming Dr. Winn of his burden to present a nonfrivolous allegation supported by factual ev idence casting doubt on the presumption that he voluntarily resigned, for voluntary resignat ions do not permit appeal of any underlying employment issues. See 5 C.F.R. §752.401(b)(9)(2007). T he AJ found that Dr. Winn had not shown that the resignation was involuntary, and had not es tablished, by non-frivolous allegation, a statutory basis for appeal to the M SPB. Accordingly, the AJ concluded that he had no jurisdiction over Dr. Winn’s grievance. The ruling became final, and this appeal followed. DISCUSSION Decisions of the MSPB are re viewed to determine whether they were “(1) arbitrary, capricious, an abuse of discreti on, or otherwise not in accord ance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evi dence.” 5 U.S.C. §7703(c). Plenary review is given to

2008-3281 3questions of law, and findings of fact are re viewed for support by substantial evidence. Employees who are terminated during the probationary period can appeal to the MSPB only on the limited gr ounds set by statute, viz. , removal for partisan political reasons, martial status, or pre-employment c onditions. 5 C.F.R. §315.806(b), (c); see also Stokes v. Federal Aviation Admin ., 761 F.2d 682, 685 (Fed. Cir. 1985) (“Under an Office of Personnel Management . . . regulation, 5 C.F.R. § 315.806(b), the Board will . . . consider appeals from agency actions adverse to probationary em ployees when those em ployees allege that those actions were the result of partisan political or marital st atus discrimination.”). It is undisputed that HSS provided Dr . Winn with notice “as to why he is being separated and the effective date of the acti on.” 5 C.F.R. §315.804. It is also undisputed that “the information in the notice . . . consist[ed] of the agency’s conclusions as to the inadequacies of his performance or conduct.” Id. Accordingly, HHS dischar ged its duties under this regulation. Dr. Winn states that HHS did not comply with the procedural r equirements of 5 CFR §315.805, which govern situations where an agency seeks to terminate a probationary employee for “for conditions arising bef ore appointment.” When an agency removes a probationary employee for such conditions, there arises an exception to the general rule of the non-appealability of removal of probationary em ployees. In such case, the probationary employee is entitled to additi onal safeguards, including notice of the proposed action, a reasonable time to respond, and notice of the adver se decision. 5 C.F. R. § 315.805. It is undisputed that Dr. Winn was not given a notice of proposed removal and time to file a response; instead, he was summarily removed as of midnight of the da y of the notice of actual removal. Accordingly, if Dr. Winn had presented a prima facie pleading that he was

2008-3281 42008-3281 5 removed for pre-employment conditions, he w ould have been entitled to challenge whether his resignation was voluntary, or whether it must be deemed invol untary because of the short time in which he had to decide whether to resign. However, the reasonable and fair reading of the removal notice is that Dr . Winn was being removed for inadequacies that were manifested during his actual employ ment, and not for anyth ing that happened before his employment. Substantial evidence supports the AJ’s conclusion that §315.805 was not implicated. In short, probationary employees have very limited rights and safeguards. Although the labor agreement extended to probationary employees the right to choose resignation and a clean record, this benefit did not serve to enlarge the notice period available to probationary employees. That is, when a probat ionary employee is properly terminated on one day’s notice, the election of the right to resign is limited to the time before the termination is effective. Reversible error has not been shown in the Board’s dismissal of Dr. Winn’s appeal for lack of jurisdiction due to his probationary status. No costs.