Vivian Arnold v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3179
VIVIAN ARNOLD,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Vivian Arnold, of Fayetteville, North Carolina, pro se.
Sara B. Rearden, Attorney, Office of the General Counsel, Merit Systems Protection
Board, of Washington, DC, for respondent. With her on the brief were B. Chad Bungard,
General Counsel, and Keisha Dawn Bell, Deputy General Counsel.
Appealed from: Merit Systems Protection Board

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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3179
VIVIAN ARNOLD,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Petition for review of the Merit Systems Protection Board in
DC315H080788-I-1.
____________________________
DECIDED: January 8, 2010
____________________________
Before LOURIE, SCHALL and BRYSON, Circuit Judges.
PER CURIAM.
DECISION
Vivian Arnold appeals the final decision of the Merit Systems Protection Board
(“the Board”) affirming the initial decision of the administrative judge (“AJ”) dismissing
her appeal for lack of jurisdiction. Arnold v. Dep’t of the Army, MSPB Docket No. DC-
315H-08-0788-I-1 (Dec. 9, 2008) (“Initial Decision”), Arnold v. Dep’t of the Army, MSPB
Docket No. DC-315H-08-0788-I-1 (April 7, 2009) (“Final Decision”). Because the
Board’s finding was in accordance with law and was based on findings supported by
substantial evidence, we affirm.

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BACKGROUND
The Department of the Army (“the Army”) appointed Arnold to the position of
Medical Support Assistant at a Health Clinic in Fort Bragg, North Carolina in 2007,
where she had worked as a contract employee for eight years. Her employment by the
Army was subject to a one-year probationary period. Approximately two weeks before
the probationary period had run, Arnold received a discharge notice, citing “failure to
follow leave procedures, failure to follow instructions regarding duty hours, and general
attitude.”
Arnold appealed her discharge to the Board, alleging racial discrimination.
Following two show cause orders from the AJ, which explained that the appeal rights of
probationary employees are limited to “non-frivolous claim[s] that [] termination was
based on partisan political reasons or marital status,” Arnold included an allegation of
discrimination based on her marital status. Specifically, Arnold alleged that married
employees did not have to follow the leave procedures that she was required to follow,
and that her termination was therefore the result of discrimination based on her status
as a single parent. Arnold alleged that she was denied time off to attend to childcare
responsibilities that was allowed married parents. Arnold also argued that her
termination violated the procedures set forth in 5 C.F.R. § 315.805.
The AJ issued an initial decision dismissing Arnold’s appeal for lack of
jurisdiction. The initial decision found that Arnold had not presented specific, non-
frivolous allegations that married persons were treated less harshly for similar
misconduct. In so finding, the AJ noted that there were three bases for termination:
failure to follow leave policies, failure to follow duty hours, and general attitude, and that
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Arnold’s allegations only addressed her alleged failure to follow leave policies. Arnold
had not alleged that married employees who failed to follow duty hours or had a similar
attitude as she did had been disciplined differently. The AJ also found that there was
insufficient evidence that the failure to follow leave policies that led to Arnold’s
termination was related to her childcare duties. Although Arnold alleged that married
employees were allowed to leave work to pick up children, or to make up time without
following leave procedures, the only evidence on file regarding Arnold’s failure to
properly request leave did not relate to childcare; rather, the evidence showed that
Arnold had requested her annual leave by phone rather than requesting it in advance.
The AJ also found that Arnold made no allegations supporting her claim that the
Army failed to follow 5 C.F.R. § 315.805. That regulation requires certain procedural
actions by the agency when an employee is removed based on conditions arising
before their appointment. However, because Arnold had made no allegation that the
Army was removing her for pre-appointment reasons, the AJ found that her claim of a
violation of 5 C.F.R. § 315.850 could not support jurisdiction either.
Lastly, the AJ found that the Board could not reach the evidence presented by
Arnold to support her allegation that she had been removed for race-based reasons.
The AJ stated that “because the Board lacks jurisdiction over [Arnold’s] removal during
her probationary period, the Board also lacks jurisdiction over her claim of race
discrimination.” Initial Decision at 6 (citing Awa v. Dep’t of Navy, 41 M.S.P.R. 318, 322
(M.S.P.B. 1989).
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Arnold appealed to the full Board. The Board found that there was no new
evidence presented and the AJ made no error interpreting laws or regulations, and
therefore affirmed the initial decision. Final Decision at 2.
Arnold timely appealed to this court. Our jurisdiction in appeals from the Merit
Systems Protection Board rests on 28 U.S.C. § 1295(a)(9) (2006).
DISCUSSION
The scope of our review in an appeal from a Board decision is limited. We can
set aside the Board’s decision if it was “(1) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (2) obtained without procedures required by
law, rule, or regulation having been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c) (2006); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d
1307, 1311 (Fed. Cir. 2003).
The Board's jurisdiction to hear appeals from probationary employees terminated
for post-appointment reasons is defined in 5 C.F.R. § 315.806. Arnold has the burden
of proving by a preponderance of evidence that the Board has jurisdiction over the
action being appealed. See 5 C.F.R. § 1201.56(a)(2).
Arnold contests the determination of the Board, arguing that the Board should
have considered evidence submitted after the initial complaint when reviewing the
administrative judge’s dismissal for lack of jurisdiction. Arnold specifically points to a
formal complaint of racial discrimination filed with the Equal Employment Opportunity
Commission (“EEOC”) regarding Arnold’s supervisor at Clark.
The government responds that the Board considered all the documentary
evidence in the record, and that Arnold has not met her burden of producing evidence
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that the Board has jurisdiction over her appeal. The government argues that Arnold did
not allege that married employees were treated differently for failing to follow leave
procedures or similar misconduct. See Chase-Baker v. U.S. Dep’t of Justice, 198 F.3d
843, 845 (Fed. Cir. 1999) (a non-frivolous allegation of marital status discrimination
requires factual assertions of a difference in the treatment of married and unmarried
employees). The government further argues that Arnold did not allege that married
employees had failed to comply with instructions regarding duty hours or had similar
work attitudes but were not disciplined by the Army. The government argues that, in
any event, the record evidence is not sufficient to support such an allegation. Lastly,
the government argues that because none of Arnold’s allegations relates to conditions
arising before her appointment, 5 C.F.R. § 315.805 is inapplicable.
We agree that the Board lacks jurisdiction over Arnold’s claim. Because Arnold
was a probationary employee at the time of her termination, the bases on which she can
appeal her termination are strictly limited. The Board’s determination that Arnold has
not alleged sufficient facts to make out a claim of marital status discrimination is
supported by substantial evidence and is in accordance with law. The Board examined
all the evidence in the record and properly found that Arnold’s allegations regarding the
grant of leave for childcare purposes for married versus single parents did not relate to
the “failure to follow leave procedures” for which she was notified she was being
terminated. Nor did Arnold allege that married employees were disciplined differently
for the other behaviors for which she was notified she was being terminated. Arnold
also did not allege that she was terminated for conditions arising before her
appointment such that the Board would have jurisdiction under 5 C.F.R. § 315.805.
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Although the court is aware of the EEOC complaint in the record regarding racial
discrimination, the Board does not have jurisdiction over such a complaint in the case of
dismissal of an employee during her probationary period.
Accordingly, we affirm the Board’s dismissal of this matter for lack of jurisdiction.
COSTS
No costs.

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