Brenda G. Watson v. Department of Veterans Affairs
Background
- Appellant Brenda G. Watson, a preference-eligible veteran, was appointed under a Veterans Recruitment Appointment (VRA) to a GS-5 Medical Support Assistant excepted‑service position on November 15, 2015, subject to a one‑year trial period.
- The agency terminated Watson effective June 23, 2016, about six months into her trial period, for inappropriate conduct and attendance issues.
- Watson appealed to the Merit Systems Protection Board (MSPB), alleging malicious termination, improper assignments, a hostile work environment, and retaliation for EEOC complaints.
- The administrative judge issued a jurisdictional order under 5 U.S.C. § 7511(a)(1)(A) and the appellant did not respond; the agency moved to dismiss for lack of jurisdiction because she had under one year of service.
- The AJ dismissed the appeal for lack of jurisdiction, finding Watson was not an "employee" under 5 U.S.C. § 7511(a)(1)(B) because she was terminated during her trial period and did not allege partisan political, marital‑status, or preappointment reasons.
- On petition for review, Watson reargued the merits but raised no jurisdictional facts; the Board denied review and affirmed the initial decision, finding no basis to disturb the jurisdictional dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Watson was an "employee" with Board appeal rights under 5 U.S.C. § 7511 | Watson challenged the termination on merits (malice, retaliation, hostile environment) implying Board jurisdiction | Agency: Watson was in a VRA trial period and had <1 year of current continuous service, so no statutory right to appeal to MSPB | Held: No jurisdiction; Watson was terminated during her trial period and did not meet § 7511(a)(1)(B) requirement |
| Whether VRA appointees may appeal removals during trial period on specified grounds | Watson did not allege partisan, marital, or preappointment reasons | Agency acknowledged VRA appointees have narrow appeal rights during trial year but Watson raised none of the enumerated grounds | Held: Even under VRA parity, no claim that fits the regulation; no jurisdictional basis shown |
| Whether new evidence on petition for review warrants reconsideration | Watson submitted statements and emails with petition for review, arguing facts supporting her claims | Agency: Evidence is not new or material and does not cure jurisdictional deficiency | Held: Evidence is neither new nor material; it predates the initial decision or was already in record; no basis to reopen |
| Whether Board may adjudicate discrimination/retaliation claims independently despite jurisdictional dismissal | Watson alleged retaliation and discrimination in appeal | Agency: MSPB lacks jurisdiction over removal appeal absent employee status; discrimination claims cannot be independently decided here | Held: MSPB has no jurisdiction over termination or related discrimination claims because appellant is not an "employee" under § 7511 |
Key Cases Cited
- Maddox v. Merit Systems Protection Board, 759 F.2d 9 (Fed. Cir. 1985) (Board’s jurisdiction is limited to matters conferred by law)
- Maibaum v. Department of Veterans Affairs, 116 M.S.P.R. 234 (MSPB 2011) (VRA appointees have limited appeal rights during trial period)
- Amend v. Department of Justice, 102 M.S.P.R. 614 (MSPB 2006) (tacking of prior service to meet § 7511 service requirement)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991) (court’s strict enforcement of statutory filing deadlines)