Keron Sealey v. Department of Defense
SF-315H-22-0535-I-1
MSPBMar 15, 2024Background
- Keron A. Sealey, a probationary employee at the Department of Defense (DOD), was terminated during his probationary period and appealed the termination to the Merit Systems Protection Board (MSPB).
- Sealey argued that his termination was retaliatory, as it followed his filing of an Equal Employment Opportunity (EEO) complaint.
- The initial MSPB administrative judge dismissed the appeal for lack of jurisdiction, citing that Sealey had not completed the required period of federal service to qualify as an "employee" eligible for Board appeal under 5 U.S.C. § 7511(a)(1)(A)(ii).
- Sealey petitioned for review to the full Board, asserting the merits of his termination and retaliation claim were not properly considered.
- During the appeal period, federal law changed the DOD probationary period from two years to one year for appointments made after December 31, 2022, but this change did not apply retroactively to Sealey’s case.
- The Board reviewed newly submitted documents but found them insufficient to alter the case outcome.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| MSPB jurisdiction over appeal | Sealey qualifies as employee; appealable action | Not enough continuous service; outside Board’s jurisdiction | Board: No jurisdiction |
| Retaliation for EEO complaint | Termination was in retaliation for EEO filing | Retaliation claim invalid w/o jurisdiction | Board: Cannot address |
| Impact of NDAA probationary change | New 1-year rule should apply | Rule not retroactive | Board: No effect on case |
| Consideration of new evidence | Submitted new documents relevant | Evidence insufficient weight | Board: No change in outcome |
Key Cases Cited
- Burton v. Department of the Air Force, 118 M.S.P.R. 210 (2012) (Board lacks jurisdiction to reach merits if appealable action not established)
- Rosario-Fabregas v. Department of the Army, 122 M.S.P.R. 468 (2015), aff’d, 833 F.3d 1342 (Fed. Cir. 2016) (Board cannot decide discrimination/retaliation claims absent jurisdiction)
- Russo v. Veterans Administration, 3 M.S.P.R. 345 (1980) (Board must deny review if new evidence does not alter outcome)