UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

PATRICE SHANE’ TAYLOR,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

DC-315H-16-0629-I-1

DATE: January 6, 2017

THIS ORDER IS NONPRECEDENTIAL1

Patrice Shane’ Taylor, Gambrills, Maryland, pro se.

Brian J. Sheppard and Steven Lippman, Washington D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, 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, 

VACATE the initial decision, and REMAND the case to the 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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
2

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The following facts are not disputed. The agency provisionally appointed 

the appellant to an excepted service Police Officer position under the Veterans 

Readjustment Act (VRA) on February 8, 2016. Initial Appeal File (IAF), Tab 10, 

Initial Decision (ID) at 1-2. The appointment was subject to a 2-year trial period. 

ID at 2. During that period, in May 2016, the agency terminated the appellant 

after learning that a February 3, 2016 protective order stemming from domestic 

violence allegations prevented her from possessing a firearm, which was a 

requirement of her Police Officer position. ID at 3. 

¶3 After the appellant filed the instant Board appeal, the administrative judge 

warned that the Board may not have jurisdiction over her termination, provided 

the pertinent legal standards, and ordered the appellant to meet her jurisdictional 

burden. IAF, Tabs 1-2. In an untimely response that did not directly address her 

jurisdictional burden, the appellant alleged that she informed her supervisory 

chain of the protective order once she learned of it, they moved her to a visitor 

center where she was not required to carry a firearm until her termination, and the 

protective order was no longer in place. IAF, Tab 1 at 4, Tab 6 at 4. 

¶4 Without holding the requested hearing, the administrative judge issued an 

initial decision that dismissed the appeal for lack of jurisdiction. ID. The

appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. 

The agency has filed a response and the appellant has replied. PFR File, 

Tabs 3-4.

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

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems 

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant bears the 

burden of proving the Board’s jurisdiction by preponderant evidence. 5 C.F.R. 

§ 1201.56(b)(2)(i)(A). Under 5 C.F.R. § 315.806(c), a probationary employee 

whose termination was based in whole or in part on conditions arising before her 

appointment may appeal her termination to the Board on the ground that it was 
3

not effected in accordance with the procedural requirements set forth in 5 C.F.R. 

§ 315.805. LeMaster v. Department of Veterans Affairs, 123 M.S.P.R. 453, ¶ 7 

(2016). Those procedural requirements include advance notice of the termination, 

an opportunity to respond, and consideration of the response. Id., ¶ 13; 5 C.F.R. 

§ 315.805. In a probationary termination appeal arising under section 315.806(c), 

the merits of the agency’s termination decision are not before the Board. 

LeMaster, 123 M.S.P.R. 453, ¶ 7. Rather, the only issue is whether the agency’s 

failure to follow the procedures prescribed in section 315.805 was harmful error. 

Id. If there was harmful error, then the agency’s action must be set aside. Id. 

¶6 Contrary to the initial decision, we find that the appellant is entitled to a 

jurisdictional hearing and, if necessary, a hearing to determine whether the 

agency committed harmful error. See generally Ferndon v. U.S. Postal Service, 

60 M.S.P.R. 325, 329 (1994) (recognizing that an appellant is entitled to a 

jurisdictional hearing if she presents nonfrivolous allegations of Board 

jurisdiction). Because the termination action was at least partially based on the 

February 3, 2016 protective order, which arose before her February 8, 2016 

appointment, the appellant was entitled to the procedural protections of 5 C.F.R. 

§ 315.805.

2

 IAF, Tab 5 at 28; see LeMaster, 123 M.S.P.R. 453, ¶¶ 2, 8‐13 

(finding that a probationary employee was entitled to the procedural protections 

of section 315.805 when his termination was at least partially based on the agency 

learning that he was subject to court-ordered probation for bank fraud, which 

existed prior to his appointment). However, neither the termination notice nor the 

agency’s brief in response to this appeal contained any indication that it provided 

notice and an opportunity to respond prior to removing the appellant. IAF, Tab 5 

 

2 As set forth in 5 C.F.R. § 307.105, “any individual serving under a VRA, whose 

employment under the appointment is terminated within 1 year after the date of such 

appointment, has the same right to appeal that termination as a career or 

career-conditional employee has during the first year of employment,” which includes 

the right to appeal what is at issue here, set forth in 5 C.F.R. § 315.806. See LeMaster, 

123 M.S.P.R. 453, ¶ 2 n.1.
4

at 5, 28-29. If, as it appears, the agency failed to provide the appellant with those 

procedural protections, the relevant inquiry is whether that failure amounted to 

harmful error. LeMaster, 123 M.S.P.R. 453, ¶ 13.

¶7 Harmful error cannot be presumed; an agency error is harmful only when 

the record shows that it 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., ¶ 14; 5 C.F.R. § 1201.4(r). The burden is on the appellant to show 

that the procedural error was harmful. 5 C.F.R. § 1201.4(r). Because the 

administrative judge dismissed the appeal for lack of jurisdiction without a 

hearing, the record is not developed on the issue of whether the agency would 

have terminated the appellant had it provided advance notice of the termination, 

an opportunity to respond, and consideration of her response. However, we note 

that the appellant already has presented evidence showing that the protective 

order preventing her from carrying a firearm was rescinded just 2 weeks after her 

termination, during what may have been the notice and response period if the 

appellant had been provided the procedural protections of section 315.805. IAF, 

Tab 1 at 4. 

¶8 On remand, the administrative judge shall allow the parties to present 

additional argument and evidence. He also shall hold the requested hearing to 

address jurisdiction under 5 C.F.R. § 353.806(c) and, if necessary, whether the 

agency’s failure to follow the procedures prescribed in 5 C.F.R. § 315.805 was 

harmful error.3

 

3 We recognize that the appellant has, for the first time on review, suggested that her 

sexual orientation and marriage may have played a role in her termination. PFR File, 

Tab 1 at 4. However, the allegation is pro forma and, therefore, insufficient to e stablish 

jurisdiction under 5 C.F.R. § 315.806(b). See Smirne v. Department of the Army, 

115 M.S.P.R. 51, ¶ 8 (2010) (recognizing that the nonfrivolous standard for claims of 

marital status discrimination in a probationary termination requires more than mere 

conjecture; an appellant must provide supporting facts to show her allegations are not 

merely pro forma). 
5

ORDER

¶9 For the reasons discussed above, we remand this case to the regional office 

for further adjudication in accordance with this remand order.

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board