Rossbach v. Department of Interior, DC-315I-14-0066-I-1
| Decision Date | 17 February 2016 |
| Docket Number | DC-315I-14-0066-I-1 |
| Court | Merit Systems Protection Board |
| Parties | RANDALL GLENN ROSSBACH, Appellant, v. DEPARTMENT OF THE INTERIOR, Agency. |
UNPUBLISHED
THIS ORDER IS NONPRECEDENTIAL [1]
Glenn L. Smith, Esquire, Grand Rapids, Michigan, for the appellant.
James Nicklas Holt, Jr., Knoxville, Tennessee, for the agency.
¶1 The appellant has filed a petition for review of the initial decision, which dismissed his termination appeal for lack of jurisdiction and denied his request for corrective action under the Veterans Employment Opportunities Act of 1998 (VEOA). For the reasons discussed below, we GRANT the appellant's petition for review, VACATE the initial decision, and REMAND the appeal to the regional office for further adjudication in accordance with this order.
¶2 Effective August 26, 2012, the agency appointed the appellant to a Maintenance Worker Supervisor position in the competitive service at Great Smoky Mountains National Park in North Carolina. Initial Appeal File (IAF), Tab 4 at 6-7, 15 18. His appointment was subject to a 1-year probationary period and required him to possess or obtain a North Carolina Water Operators License (C-Well) within 1 year.[2]IAF, Tab 37 at 28.
¶3 On Thursday, August 22, 2013, the appellant emailed his supervisor requesting leave without pay (LWOP) under Executive Order (EO) 5396 due to a medical emergency.[3]IAF, Tab 18 at 8. On Saturday, August 24 and Sunday, August 25, the appellant sent text messages to his supervisor stating that he would be getting a heart catheterization on the next Monday and reiterating his request for leave under EO 5396. See Id. at 9-10. According to a declaration made under penalty of perjury by C.S., the Deputy Chief of the appellant's division, the appellant's messages did not meet the requirements for requesting leave under EO 5396, but the agency nonetheless granted the appellant sick leave for 2 days. IAF, Tab 37 at 25.
¶4 On Friday, August 23, 2013, C.S. issued a notice to the appellant stating that the agency was terminating him effective that day due to his failure to obtain a C-Well license within 1 year of his appointment. IAF, Tab 4 at 7. The notice informed the appellant that his probationary period expired on August 25, 2013, and that, as a probationary employee, his appeal rights were limited. Id. The agency mailed the notice by first-class mail to the appellant's residence in Michigan on August 23 2013. Id. at 8. According to the appellant's declaration under penalty of perjury, C.S. informed him by telephone on Saturday, August 24 or Sunday, August 25, 2013 while he was still in the hospital, that he had been terminated. IAF, Tab 39 at 15.
¶5 On September 20, 2013, the appellant submitted a claim to the Department of Labor (DOL) alleging that the agency had violated his veterans' preference rights when it terminated him the day after he requested LWOP under EO 5396. IAF, Tab 4 at 17-20. By correspondence dated September 25, 2013, DOL notified the appellant that it would not investigate his claim but that he could file an appeal to the Board within 15 days of receipt of the letter. Id. at 21.
¶6 On October 24, 2013, the appellant appealed his termination to the Board and requested a hearing.[4]IAF, Tab 1. The administrative judge notified the appellant of the law and burdens of proof applicable to establishing jurisdiction over an appeal of a termination during an employee's probationary period and claims arising under VEOA.[5]IAF, Tab 2 at 2-3, Tab 20.
¶7 After affording the parties an opportunity to respond, the administrative judge found that the appellant had established jurisdiction over his VEOA claim but that he had failed to make a nonfrivolous allegation of jurisdiction over his probationary termination appeal, which would be dismissed for lack of jurisdiction. IAF, Tab 25. The administrative judge scheduled a hearing to be held in Arlington, Virginia. IAF, Tab 29. The appellant submitted a request to change the hearing location to Detroit, Michigan, near where he lived, or to hold a hearing by videoconference. IAF, Tab 30 at 4. The appellant stated that, if the hearing could not be moved or held by videoconference, then he would have to withdraw his request for a hearing because he lacked the financial resources to travel. Id. The administrative judge found that the appellant had withdrawn his request for a hearing and canceled the hearing. IAF, Tab 34.
¶8 In an initial decision based on the written record, the administrative judge dismissed the appellant's termination appeal for lack of jurisdiction, finding that he was terminated during his probationary period for conduct that occurred after his appointment and that he had not alleged that his termination was based on partisan political reasons or marital status discrimination. IAF, Tab 40, Initial Decision (ID) at 3-7. The administrative judge found Board jurisdiction over the VEOA claim but determined that the appellant had failed to show by a preponderance of the evidence that the agency violated one or more of his statutory or regulatory veterans' preference rights. ID at 7-12. Thus, the administrative judge denied the appellant's request for corrective action under VEOA. ID at 12.
¶9 The appellant has filed a petition for review of the initial decision. Petition for Review (PFR) File, Tab 3. The agency has responded in opposition to the petition for review. PFR File, Tab 7.
The appellant made a nonfriviolous allegation of Board jurisdiction over his termination appeal.
¶10 To establish Board jurisdiction under 5 U.S.C. chapter 75, an individual must, among other things, show that he satisfies one of the definitions of “employee” in 5 U.S.C § 7511(a)(1). 5 U.S.C. § 7513(d); Sosa v. Department of Defense, 102 M.S.P.R. 252, ¶ 6 (2006). For an individual, like the appellant, who was appointed to a position in the competitive service, this means that he must either: (1) not be serving a probationary or trial period under an initial appointment; or (2) have completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less.[6]5 U.S.C. § 7511(a)(1)(A). The appellant has the burden of proof on the issue of jurisdiction, 5 C.F.R. § 1201.56(b)(2)(i)(A), and, when an appellant makes a nonfrivolous allegation that the Board has jurisdiction over an appeal, he is entitled to a hearing on the jurisdictional question, assuming he requested a hearing and did not subsequently waive his right to a hearing. See Liu v. Department of Agriculture, 106 M.S.P.R. 178, ¶ 8 (2007). Nonfrivolous allegations of Board jurisdiction are allegations of fact that, if proven, could establish a prima facie case that the Board has jurisdiction over the matter at issue. Id.
¶11 A probationary period ends at the completion of the last day of the employee's tour of duty before his anniversary date. Herring v. Department of Veterans Affairs, 72 M.S.P.R. 96, 100 (1996); 5 C.F.R. § 315.804(b). A “tour of duty” is an employee's regularly scheduled hours and days of duty. Hardy v. Merit Systems Protection Board, 13 F.3d 1571, 1573 (Fed. Cir. 1994). Here, the appellant was appointed on August 26, 2012, and his 1-year anniversary date was August 26, 2013; thus, he completed his probationary period when he finished his last tour of duty on or before Sunday, August 25, 2013.
¶12 In the initial decision, the administrative judge found that the appellant completed his probationary period on Friday, August 23, 2013. ID at 5. The administrative judge does not cite anything to support this finding, and there is no evidence in the record to suggest that the appellant, a Maintenance Worker Supervisor, was not regularly scheduled to work weekends. In fact, the vacancy announcement used to fill the appellant's position specifies that the position required the incumbent to work weekends. IAF, Tab 37 at 28. In addition, C.S.'s affidavit stated that the agency granted the appellant sick leave for Friday, August 23 and Saturday, August 24, 2013, which further suggests that the appellant was scheduled to work on the Saturday in question.[7]IAF, Tab 37 at 25. While this evidence suggests that the appellant's probationary period did not end until Saturday, August 24 or Sunday, August 25, 2013, we find it insufficient to establish the fact with adequate certainty.
¶13 To terminate a probationary employee in the competitive service for conduct occurring after his appointment, the agency must notify him “in writing as to why he is being separated and the effective date of the action.” 5 C.F.R. § 315.804(a).[8]The Board has held that “the plain meaning of the regulatory language indicates that the employee is not terminated until he receives such notice since it is only ‘by notifying him in writing' that termination of the employee's services is accomplished.” Lavelle v. Department of Transportation, 17 M.S.P.R. 8, 15 (1983) (quoting 5 C.F.R. § 315.804), modified on other grounds by Stephen v. Department of the Air Force, 47 M.S.P.R. 672 (1991).[9]An employee need not receive actual delivery of the agency's notice before the effective date of the termination so long as the agency's attempts to notify him were diligent and reasonable under the circumstances. Id. If the agency made diligent and reasonable attempts to effect service of the notice prior to the effective date of the action, then the Board will find that the employee received constructive delivery of the notice. See Id. If an employee does not receive actual or constructive delivery of written notice of his termination until after the effective date of the...
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