710 Fed.Appx. 875 (Fed. Cir. 2017), 2017-1740, Davis v. Department of Army

Docket Nº:2017-1740
Citation:710 Fed.Appx. 875
Opinion Judge:PER CURIAM.
Party Name:Regina G. DAVIS, Petitioner v. DEPARTMENT OF THE ARMY, Respondent
Attorney:Regina G. Davis, San Antonio, TX, pro se. Melissa Baker, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing-ton, DC, for respondent. Also represented by Chad A. Readler, Robert E. Kirschman, Jr., L. Misha Preheim.
Judge Panel:Before Newman, Dyk, and Taranto, Circuit Judges.
Case Date:September 11, 2017
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 875

710 Fed.Appx. 875 (Fed. Cir. 2017)

Regina G. DAVIS, Petitioner

v.

DEPARTMENT OF THE ARMY, Respondent

No. 2017-1740

United States Court of Appeals, Federal Circuit

September 11, 2017

Editorial Note:

This Disposition is Nonprecedential. (See Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. Fed. Cir. Rule 32.1.)

Petition for review of the Merit Systems Protection Board in Nos. DA-1221-12-0640-W-6, PH-315H-12-0551-I-3.

Regina G. Davis, San Antonio, TX, pro se.

Melissa Baker, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing-ton, DC, for respondent. Also represented by Chad A. Readler, Robert E. Kirschman, Jr., L. Misha Preheim.

Before Newman, Dyk, and Taranto, Circuit Judges.

OPINION

PER CURIAM.

Page 876

In May 2011, the Department of the Army removed Dr. Regina Davis from her position as a Clinical Psychologist in the Warrior Resiliency Program at the Brooke Army Medical Center at Fort Sam Houston. The Department stated that the removal was based on her disregard of directives. The Merit Systems Protection Board dismissed part of Dr. Davis’s subsequent appeal of her removal, finding a lack of Board jurisdiction because she was not an "employee" under the pertinent statutory provision. The Board also found a regulatory-appeal provision inapplicable, finding that she was not removed based on pre-appointment conduct. And the Board rejected her claim that her removal was an act of reprisal for protected whistleblowing, finding that the Department had proven that it would have removed her even if the asserted whistleblowing had not occurred. We affirm.

I

From January 11, 2010, until September 24, 2010, Dr. Davis worked as a Clinical Psychologist for the Brooke Army Medical Center’s Warrior Resiliency Program at Fort Sam Houston. During that period, she was a contractor hired by Humana/Veritas Healthcare, which, operating under a contract with the federal government, was providing the relevant services at the Center. On September 27, 2010, pursuant to a Standard Form 50 (SF-50), Dr. Davis was formally appointed to a federal-government position, a General Schedule (GS) position, as a psychologist at the Center. The appointment was subject to a one-year probationary period. See

Davis v. Dep’t of the Army, Nos. DA- 1221-12-0640-W-6, PH-315H-12-0551-I-3, 2017 WL 67422 ¶ 2 (M.S.P.B. Jan. 6, 2017); Appx291.1

During the months she was with Humana/Veritas, Dr. Davis had charged that she was subjected to sexual harassment and related retaliation. The Department conducted an investigation under Army Regulation 15-6 (AR 15-6) between September 7, 2010, and October 19, 2010, resulting in a report rejecting the charge issued on November 16, 2010— by which time she had entered the federal service. SAppx368-76. When Dr. Davis thereafter made further related charges regarding a hostile work environment and reprisal, the Department conducted a second AR 15-6 investigation, which started on February 22, 2011, and ended with a report issued on March 9, 2011. Appx190-93. In that investigation, the Department received criticism of Dr. Davis’s conduct toward some colleagues.

In April 2011, Dr. Davis was directed, on three occasions, to meet with a ranking officer to discuss the second AR 15-6 investigation and her request for a transfer. Dr. Davis refused to meet. On May 5, 2011, well before one year had elapsed since September 27, 2010, the Department

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notified Dr. Davis that her employment was terminated effective May 11, 2011.

Dr. Davis sought relief from the Board on September 12, 2012. She complained, among other things, that her removal was a reprisal for certain whistleblowing disclosures— allegations of misconduct within the Department that she made in October 2010, February 2011, and April 2011. After hearing evidence, the Board administrative judge issued an Initial Decision on March 22, 2016. Initial Decision, Davis v. Dep’t of the Army, Nos. DA-1221-12-0640-W-6, PH-315H-12-0551-I-3 (M.S.P.B. Mar. 22, 2016) (Initial Decision ).

The administrative judge determined that the Board lacked jurisdiction to review the removal under 5 U.S.C. § § 7511-7513 because Dr. Davis was not an "employee" under 5 U.S.C. § 7511. The reason, the administrative judge concluded, is that she was still within her probationary period and she did not have one year of...

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