Nia L. Gholston v. Merit Systems Protection Board

N OTE : This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NIA L. GHOLSTON,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1858
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-315H-18-0608-I-1.
______________________
Decided: March 17, 2025
______________________
N IA L. GHOLSTON, District Heights, MD, pro se.
E LIZABETH W. F LETCHER , Office of the General Coun-
sel, United States Merit Systems Protection Board, Wash-
ington, DC, for respondent. Also represented by A LLISON
J ANE B OYLE , KATHERINE MICHELLE SMITH .
______________________
Before STOLL, C LEVENGER , and C UNNINGHAM , Circuit
Judges.
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GHOLSTON v. MSPB 2
P ER C URIAM .
Nia L. Gholston petitions for review of a Merit Systems
Protection Board (“MSPB” or “Board”) final order dismiss-
ing the appeal of her removal action for lack of jurisdiction.
Gholston v. Dep’t of the Treasury, No. DC-315H-18-0608-I-
1 (M.S.P.B. Mar. 22, 2024) (Final Order); see Gholston
v. Dep’t of the Treasury, No. DC-315H-18-0608-I-1, 2018
WL 3729198 (M.S.P.B. July 31, 2018) (Initial Decision).
We affirm.
I. B ACKGROUND
On June 12, 2017, Ms. Gholston was appointed to a
competitive service position as a Chemist, GS-1320-07, in
the Department of the Treasury’s Office of Quality Opera-
tions. App’x 12; App’x 29.1 The appointment was subject
to a one-year probationary period beginning on the same
date. App’x 12; App’x 29. On May 18, 2018, the Depart-
ment of the Treasury informed Ms. Gholston that she was
being removed from federal service for inappropriate be-
havior that demonstrated a “lack of self-control[ ] and a dis-
regard for her supervisor’s instructions . . . .” App’x 12;
App’x 48–50.
Ms. Gholston filed an appeal with the MSPB, alleging
that her termination was improper. App’x 11. The MSPB
administrative judge issued an Acknowledgement Order
informing Ms. Gholston that it appeared that the Board
lacked jurisdiction over her appeal because of her proba-
tionary status. App’x 12; App’x 33–39. The Acknowledge-
ment Order explained to Ms. Gholston that “the Board
lacks jurisdiction to decide an appeal of an employee with
less than one year of current, continuous service in the
1 We refer to the supplemental appendix filed with
the government’s informal response brief as “App’x”
throughout this opinion. See ECF No. 13 (informal re-
sponse brief and supplemental appendix).
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GHOLSTON v. MSPB 3
same or similar position unless she makes a nonfrivolous
claim that her termination was based on partisan political
reasons or marital status,” or matters occurring before her
appointment. App’x 12–13; App’x 35. The Acknowledge-
ment Order informed Ms. Gholston of the relevant legal
standards and gave her an opportunity to show that she
either experienced an appealable probationary termination
or that she qualified as a statutory employee with Board
appeal rights. App’x 12–13; App’x 35–38.
In an Initial Decision, the administrative judge dis-
missed Ms. Gholston’s appeal for lack of jurisdiction.
App’x 13–15. The administrative judge found that
Ms. Gholston’s submissions “did not[ ] respond to the juris-
dictional issues identified in the Acknowledgement Order”
and “failed to address her status as a probationer.”
App’x 13. The administrative judge held that Ms. Gholston
was not an employee with appellate rights because “[t]he
undisputed record reflects that the appellant was granted
an appointment in the competitive service subject to a one-
year probationary period and that she was terminated less
than one year later” and that there was “no evidence to sug-
gest that the appellant completed more than one year of
current continuous service in her current appointment.”
App’x 14. The administrative judge also found that
Ms. Gholston had not made any allegations that would al-
low her to appeal her termination despite her probationary
status, because “[t]he record lacks any assertion by the ap-
pellant that her termination was based on partisan politi-
cal reasons, marital status discrimination, or that it was
based on pre-appointment conditions.” Id.
Ms. Gholston filed a timely petition for review (“PFR”)
of the initial decision with the full Board. App’x 1;
App’x 26. In a Final Order, the Board denied the petition
for review and affirmed the initial decision. App’x 2; see
generally App’x 1–5. The Board held that the “undisputed
record” showed that Ms. Gholston lacked one year of cur-
rent continuous service, that her allegations of prior
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GHOLSTON v. MSPB 4
service were not “nonfrivolous allegations of Board juris-
diction because the record indicates that such service oc-
curred years prior to her appointment,” and that her other
claims were immaterial. App’x 3.
Separate from Ms. Gholston’s allegations based on her
prior employment, the Board also noted that Ms. Gholston
alleged that her male coworker had “sexually harassed
her” and that Ms. Gholston asserted in passing “that she is
a ‘single Black female.’” App’x 4 (emphasis in original).
The Board found that these allegations did not state a
claim for marital status discrimination because
Ms. Gholston had “not alleged . . . that her coworker’s in-
appropriate behavior was related to, or motivated by, her
marital status.” Id. Lastly, the Board found that Ms.
Gholston had not exhausted her administrative remedies
in pursuing a whistleblower retaliation claim that she
raised for the first time in her PFR. Id.
Ms. Gholston appealed. We have jurisdiction to hear
the appeal under 28 U.S.C. § 1295(a)(9).2
II. DISCUSSION
“We affirm a decision of the Board unless it is found to
be arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; obtained without proce-
dures required by law, rule, or regulation having been
followed; or unsupported by substantial evidence.” Ford-
Clifton v. Dep’t of Veterans Affs., 661 F.3d 655, 658–59
(Fed. Cir. 2011) (citing 5 U.S.C. § 7703(c)). “We review the
Board’s jurisdictional determinations de novo and its
2 Ms. Gholston has waived any discrimination
claims. See ECF No. 4 at 1 (checking “No” in response to a
question of whether she alleged discrimination before the
Board); see generally Appellant’s Br. (not alleging discrim-
ination); Appellant’s Reply Br. (same); see also 5 U.S.C.
§ 7703(b).
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GHOLSTON v. MSPB 5
underlying factual findings for substantial evidence.”
Jones v. Merit Sys. Prot. Bd., 98 F.4th 1376, 1380 (Fed. Cir.
2024).
Ms. Gholston’s sole argument on appeal is that she
meets the statutory definition of “employee.” See generally
Appellant’s Br. “Removal from employment is an appeala-
ble action where the individual qualifies as an ‘employee’
at the time of her removal by the agency.” McCormick
v. Dep’t of the Air Force, 307 F.3d 1339, 1341
(Fed. Cir. 2002); see 5 U.S.C. § 7701(a) (“An em-
ployee . . . may submit an appeal to the [MSPB] from any
action which is appealable to the [MSPB] under any law,
rule, or regulation.”). An employee is defined as, among
other things, “an individual in the competitive service—
(i) who is not serving a probationary or trial period under
an initial appointment; or (ii) who has completed 1 year of
current continuous service under other than a temporary
appointment limited to 1 year or less.” 5 U.S.C.
§ 7511(a)(1)(A); see Pervez v. Dep’t of the Navy, 193
F.3d 1371, 1375 (Fed. Cir. 1999) (explaining that “[g]ener-
ally, an employee serving a probationary period is not an
‘employee’ under 5 U.S.C. § 7511(a)(1)(A)”). The MSPB
“has jurisdiction when an employee meets the definition of
‘employee’ provided by subsection (i) or (ii)” of 5 U.S.C.
§ 7511(a)(1)(A). McCormick, 307 F.3d at 1342.
Ms. Gholston was a probationary employee at the time
of her termination. The undisputed record shows that
Ms. Gholston was hired on June 12, 2017, subject to a one-
year probationary period, and that she was terminated
within that probationary period on May 18, 2018.
App’x 12; App’x 29–31; App’x 48–51. To the extent that
Ms. Gholston argues that she satisfied her probationary
period at the Department of the Treasury via her employ-
ment at the Census Bureau, her argument fails. Prior ser-
vice “counts toward completion of probation when the prior
service: (1) Is in the same agency . . . ; (2) Is in the same
line of work (determined by the employee’s actual duties
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GHOLSTON v. MSPB 6
and responsibilities); and (3) Contains or is followed by no
more than a single break in service that does not exceed 30
calendar days.” 5 C.F.R. § 315.802(b). Ms. Gholston’s em-
ployment at the Census Bureau satisfies none of these cri-
teria: it was in a different agency; it was as a clerk instead
of as a chemist; and it was completed over three years be-
fore her employment at the Department of Treasury. Ap-
pellant’s Br. at 3–4. Thus, Ms. Gholston was a
probationary employee at the time of her termination and
does not meet the definition of “employee” under 5 U.S.C.
§ 7511(a)(1)(A)(i).
Ms. Gholston did not complete one year of current con-
tinuous service at the time of her termination. While
Ms. Gholston contends that she completed one year of cur-
rent continuous service by working at the Census Bureau
from 2011–2013, Appellant’s Br. at 3–4, “[c]urrent contin-
uous employment” means “a period of employment or ser-
vice immediately preceding an adverse action without a
break in Federal civilian employment of a workday.” 5
C.F.R. § 752.402.3 Ms. Gholston concedes that she re-
signed from the Census Bureau on October 5, 2013. Appel-
lant’s Br. at 4. She did not join the Department of the
Treasury until June 12, 2017. App’x 29. Thus,
Ms. Gholston’s prior service was not continuous, and she
does not meet the statutory definition of “employee” under
5 U.S.C. § 7511(a)(1)(A)(ii).
Because Ms. Gholston does not satisfy the statutory
criteria to be an “employee” under 5 U.S.C. § 7511(a)(1)(A),
nor does she contest the Board’s finding that she did not
3 The statute refers to “current continuous service”
while the regulation refers to “current continuous employ-
ment.” “There is no suggestion, however, that the regula-
tory definition does not apply to the statutory phrase
‘current continuous service.’” Wilder v. Merit Sys. Prot.
Bd., 675 F.3d 1319, 1322 n.1 (Fed. Cir. 2012).
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GHOLSTON v. MSPB 7
satisfy any exception to the rule that only “employees” may
bring suit, the Board did not err in finding that it lacked
jurisdiction.
III. C ONCLUSION
We have considered Ms. Gholston’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm the Board’s final order.
AFFIRMED
C OSTS
No costs.
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