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 an excepted-service GS-5 Medical Support Assistant position on November 15, 2015, subject to a one-year trial period.
- She was terminated effective June 23, 2016, about six months into the trial period, for inappropriate conduct and failure to maintain regular attendance.
- Watson appealed her termination to the Merit Systems Protection Board (MSPB), alleging malicious termination, inconsistent 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); Watson did not respond to that order, and the agency argued the Board lacked jurisdiction because she had not completed 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 had not alleged partisan, marital, or preappointment reasons that would confer appeal rights under applicable regulation.
- On petition for review Watson reargued the merits but raised no jurisdictional challenge; the Board denied review and affirmed dismissal, finding no new and material evidence to disturb the initial decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board has jurisdiction over Watson's termination appeal because she was a VRA appointee on a trial period | Watson contends termination was wrongful (malicious, retaliatory, hostile environment) and seeks review of the termination | Agency contends Watson was still within her one-year trial period and thus not an "employee" with statutory appeal rights under 5 U.S.C. § 7511(a)(1)(B) | Held: No jurisdiction — Watson was terminated ~6 months into her trial period and lacked one year of current continuous service, so she is not an "employee" for chapter 75 purposes |
| Whether any regulatory exceptions (partisan political reasons, marital status, preappointment reasons) or other grounds give the Board jurisdiction | Watson alleged discrimination and retaliation but did not specifically allege partisan, marital, or preappointment reasons on which appeal rights would rest for VRA trial-period appointees | Agency notes Watson did not allege those specific bases; therefore, regulatory exceptions do not apply | Held: No exception applies — Watson did not allege partisan, marital, or preappointment grounds; Board lacks independent jurisdiction over discrimination claims |
Key Cases Cited
- Maddox v. Merit Systems Protection Board, 759 F.2d 9 (Fed. Cir. 1985) (MSPB jurisdiction is limited to matters conferred by statute or regulation)
- Maibaum v. Department of Veterans Affairs, 116 M.S.P.R. 234 (MSPB 2011) (VRA appointees have the same appeal rights during their first-year trial periods as competitive-service employees under regulation)
- Amend v. Department of Justice, 102 M.S.P.R. 614 (MSPB 2006) (requirement for "current continuous service" and tacking analysis)
- Hurston v. Department of the Army, 113 M.S.P.R. 34 (MSPB 2010) (MSPB has no jurisdiction over discrimination claims when it lacks jurisdiction over the underlying removal)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991) (strictness of filing deadlines for appeals to the Federal Circuit)