Patrice Shane' Taylor v. Department of the Navy
Background
- Taylor was provisionally appointed as an excepted-service Police Officer under the VRA on Feb 8, 2016, subject to a 2-year trial period.
- The Navy terminated her in May 2016 after learning of a Feb 3, 2016 protective order that barred her from possessing a firearm, a job requirement.
- Taylor appealed to the MSPB; the AJ dismissed for lack of jurisdiction without holding the requested jurisdictional hearing.
- Taylor argued she informed supervisors, was reassigned to a non-firearm duty, and the protective order was later rescinded.
- The Board granted review, found Taylor had nonfrivolous jurisdictional allegations because the protective order predated her appointment, and remanded for a jurisdictional (and if needed, harmful-error) hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board has jurisdiction over a probationary termination based on pre-appointment conditions | Taylor: termination was at least partly based on a protective order that existed before appointment, so Board jurisdiction under 5 C.F.R. § 315.806(c) applies | Agency: argued lack of Board jurisdiction (initial decision dismissed appeal) | Board: remanded for a jurisdictional hearing; found nonfrivolous allegation of jurisdiction because the protective order predated appointment |
| Whether the appellant was entitled to 5 C.F.R. § 315.805 procedural protections (advance notice, opportunity to respond, consideration) | Taylor: claims she was not provided required notice/response and that the protective order was rescinded soon after termination | Agency: did not show in the record that required procedures were provided before removal | Board: concluded Taylor was entitled to those procedural protections and remanded to develop the record and hold a hearing on whether procedural failure occurred |
| Whether any procedural failure would constitute harmful error requiring relief | Taylor: argues rescission of protective order shortly after termination suggests error could be harmful | Agency: argued termination justified; record lacked proof of procedural deficiency | Board: Harmful error is Taylor's burden; because the AJ dismissed without a hearing, the record is undeveloped; remanded to determine whether any procedural error was harmful |
| Whether new, pro forma allegations (sexual orientation/marriage discrimination) establish jurisdiction | Taylor: raised possible discrimination at review | Agency: maintained jurisdictional posture; lacked detailed rebuttal in record | Board: held the allegation was pro forma and insufficient to establish jurisdiction under § 315.806(b) |
Key Cases Cited
- Maddox v. Merit Systems Protection Board, 759 F.2d 9 (Fed. Cir. 1985) (MSPB jurisdiction is statutory and appellant bears burden of proof)
- LeMaster v. Department of Veterans Affairs, 123 M.S.P.R. 453 (MSPB 2016) (probationary termination partly based on pre-appointment condition entitles employee to § 315.805 protections)
- Ferndon v. U.S. Postal Service, 60 M.S.P.R. 325 (MSPB 1994) (nonfrivolous jurisdictional allegations entitle appellant to a jurisdictional hearing)
- Smirne v. Department of the Army, 115 M.S.P.R. 51 (MSPB 2010) (marital-status discrimination claims require more than pro forma allegations to establish jurisdiction)