Enrique Triana v. Department of the Navy
SF-315H-20-0699-I-1
| MSPB | Sep 5, 2024Background
- Enrique Triana, a probationary employee with the Department of the Navy, was terminated during his probationary period.
- Triana appealed to the Merit Systems Protection Board (MSPB), alleging his termination was due to retaliation for whistleblowing and discrimination based on age, race, and sex.
- The administrative judge dismissed Triana's appeal for lack of jurisdiction, finding he had not demonstrated that he qualified as an "employee" under 5 U.S.C. § 7511(a)(1) with requisite prior federal service.
- Triana petitioned for review, restating his whistleblower and discrimination allegations.
- The MSPB reviewed the case to determine if any legal or factual errors warranted overturning the initial decision or if new, relevant evidence had been presented.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Board jurisdiction over termination | Triana is eligible for MSPB review of termination | Triana lacks status as an "employee" under statute | MSPB lacks jurisdiction; Triana is not an "employee" under § 7511(a)(1). |
| Discrimination (age, race, sex) | Termination was discriminatory | No jurisdiction without an otherwise appealable action | No independent MSPB jurisdiction for such claims absent an appealable action. |
| Whistleblower reprisal (IRA appeal) | Termination was reprisal for whistleblowing | Triana failed to exhaust OSC remedies | No MSPB jurisdiction; petitioner failed to exhaust administrative remedies. |
| New evidence/procedural errors | Decision should be reviewed due to errors/new facts | No new material evidence or error presented | No basis for review under 5 C.F.R. § 1201.115. |
Key Cases Cited
- Walker v. Department of the Army, 119 M.S.P.R. 391 (holding that a probationary employee may appeal only under limited grounds specified in regulations)
- Penna v. U.S. Postal Service, 118 M.S.P.R. 355 (MSPB lacks jurisdiction over discrimination claims absent otherwise appealable action)
- Burnett v. U.S. Postal Service, 104 M.S.P.R. 308 (affirming lack of jurisdiction over discrimination when appeal rights are not established)
- Salerno v. Department of the Interior, 123 M.S.P.R. 230 (setting criteria for MSPB jurisdiction over individual right of action appeals)