UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

BLAKE GRAMLING, Appellant,

v.
DEPARTMENT OF THE IN TERIOR, Agency. DOCKET NUMBER DC

- 315H

- 15

- 0375

- I

- 1

DATE: June 9, 2015



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Norman Jackman , Esquire, Cambridge, Massachusetts, for the appellant.

Josh C. Hildreth , Washington, D.C., for the agency.

BEFORE
Susan Tsui Grundmann, Chairman Mark A. Robbins, Member

FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his 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 er roneous interpretation of statute or regulation or the erroneous application of the law to

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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 signific antly contributing to the Board’ s case law. See 5 C.F.R. § 1201.117 (c).2

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
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 follo wing 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, which is now the
Board’s fi nal decision. 5 C.F.R. § 1201.113 (b). ¶2 The appellant was terminated for misconduct during his probationary period . Initial Appeal File (IAF), Tab 6 at 11

- 1 4 . He filed this Board appeal in which he alleged that his termination constituted marital status discrimination because the alleged misconduct for which the agency terminated him was mere flirting, which is “what most people do who are not married.” IAF, Tab 1 at 7

. He also stated that
, because his supervisor was married, she was not familiar with
the way single people normally flirt and therefore took action against him. Id

. He requested a hearing. Id. at 3. The administrative judge ordered the appellant
to file evidence or argument to establish why his appeal should not be dismissed
for lack of jurisdiction . IAF, Tab 2. In response, the appellant reiterated the

same argument s from his initial appeal. IAF, Tab 4. ¶3 The adminis trative judge dismissed the appeal for lack of jurisdiction without holding the requested hearing . IAF, Tab 7, Initial Decision (ID) at 3. Specifically, he found that the appellant failed to establish a nonfrivolous claim
of marital status discrimination because there was no indication that the appellant’s marital status would have affected the agency’s decision to terminate3

him for making inappropriate comments to a coworker. 2 ID at 4. In his timely petition for review, the appellant asserts that the a dministrative judge erred in dismissing the appeal for lack of jurisdiction merely because he “ did not like ” the basis of the appellant’s nonfrivolous allegation of jurisdiction and that the administrative judge actually decided the case on the merits desp ite finding that the Board lacked jurisdiction. 3 Petition for Review (PFR) File, Tab 1 at 5. Therefore, the appellant states that the appeal should be remanded. 4 Id

. The

agency has filed a response in opposition to the petition for review . PFR File,
Tab 4. ¶4 We find that the administrative judge correctly dismissed the appeal for lack of jurisdiction without holding a jurisdictional hearing

. A probationary employee has no statutory right of appeal to the Board. See 5 U.S.C. § 7511 (a). Such an employee has a regulatory right of appeal to the Board, however, if he makes a nonfrivolous allegation that he was terminated due to discrimination
based on marital status

. 5 C.F.R. § 315. 806 (b)

. The appellant has the burden of

2 The administrative judge found that the Boa rd d oes not have jurisdiction to decide the appellant’s claim that he was terminated because of his disability. ID at 3 n.1; see IAF, Tab 4 at 4

- 5

. We agree because, absent an otherwise appealable action, the Board does not have jurisdiction over discrim ination claims. See Wren v. Department of the Army
, 2 M.S.P.R. 1 , 2 (1980 ), aff’d , 681 F.2d 867, 871

- 73 (D.C. Cir. 1982). To the extent that the appellant also asserted that his termination violated the First Amendment, IAF , Tab 4 at 4 , the Board has no jurisdiction to review such constitutional claims absent an otherwise appealable action, Smith v. Department of Defense
, 106 M.S.P.R. 228 , ¶ 13 (2007)

. 3 On review, the appellant attaches a previous response to the agency’s allegations of misconduct. PFR File , Tab 1 at 7

- 8. The response was already contained in the agency’s submission . IA F, Tab 6 at 15

- 16. Therefore, the evidence is not new and does not provide a basis for disturbing the initial decision. See 5 C.F.R. § 1201.115 (d).

4 The appellant states that his appeal should be remanded to a different administrative judge as the current administrative judge has already expressed his opinion. PFR File, Tab 1 at 5. W e find that
, to the extent that the appellant is a lleging administrative judge bias, he has not overcome the presumption of honesty and integrity that accompanies administrative adjudicators

. See, e.g. , Tyler v. U.S. Postal Service
, 90 M.S.P.R. 545 , ¶ 6 (2002)

.4

proving the Board ’ s jurisdiction by a preponderance of the evidence. 5 5 C.F.R. § 1201.56 (b)(2)(i)(A)

. If an appellant makes a nonfrivolous allegation that the Board has jurisdiction over h is appeal, then he is entitled to a hearing
, if he

requ ests one, on the jurisdictional question. Hurston v. Department of the Army , 113 M.S.P.R. 34 , ¶ 5 (2010). ¶5 T o nonfrivolously allege marital status discrimination, an appellant m ay allege facts showing either that he was treated differently because of h is marital status or that go to the essence of his status as a marr ied, single
, or divorced

person

. Smirne v. Department of the Army
, 115 M.S.P.R. 51 , ¶ 8 (2010). An appellant’s allegations regarding marital status discrimination must be more than mere conjecture. Id. We agree with the administrative judge that the appellant has not alleg ed that he was treated differently due to his marital status because there was no indication that the appellant would not have been terminated for making inappropriate comments if he had been married

. See ID at 4. Accordingly, we find that the administra tive judge correctly dismissed the appeal for lack of jurisdiction

. See James v. Department of the Army
, 55 M.S.P.R. 124 , 127 (1992) ( finding that the appellant did not make a nonfrivolous allegation that
his termination was based on marital status discrimination ).

NOTICE TO THE APPELL ANT 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

5 A preponderance of the evidence is that degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q ).5

The court must receive your request for review no later than 60 ca lendar 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 i t 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 St ates 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 services6

provided by any atto rney nor warrants that any attorney will accept representation in a given case.

FOR THE BOARD:

Washington, D.C. ______________________________ William D. Spencer Clerk of the Board