U.S. Merit Systems Protection Board 
Case Report for July 8, 2016 

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Note:  These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.

BOARD DECISIONS

Appellant:  Stephen B. LeMaster
Agency:  Department of Veterans Affairs
Decision Number:  2016 MSPB 25
Docket Number:  DE-315H-15-0241-I-1
Issuance Date:  July 5, 2016
Action Type:  Probationary Termination

Jurisdiction
 - Probationers
Harmful Procedural Error

    The appellant petitioned for review of an initial decision that dismissed his probationary termination appeal for lack of jurisdiction.  Effective November 16, 2014, the appellant received an appointment to the competitive service position of Program Support Clerk, subject to a 1-year probationary period.  The agency terminated his appointment during his probationary period citing "conduct issues" relating to the terms of a 2007 court-ordered probation agreement that was entered following the appellant's release from prison for bank fraud.  The agency's termination notice cited the terms of the probation agreement, which, among other things, required him to inform any employer or prospective employer of his current conviction and supervision status, prohibited him from possessing or using a computer with access to any online computer service without the prior written approval of the court.  The termination notice stated that, during his employment, the appellant failed to disclose to the agency that his computer access and use was in violation of his probation agreement and that his inability to use the agency's computer system prevented him from performing his job duties.  The prelliminary issue for jurisdictional purposes was whether the agency terminated the appellant's appointment for pre-employment reasons, as the appellant contended, or for post-appointment reasons, as the agency contended.  If the termination was based in whole or in part on conditions arising before appointment, the appellant was entitled to appeal his termination to the Board on the ground that the termination was not effected in accordance with the procedural requirements set forth in 5 C.F.R.  315.805, which requires notice and an opportunity to respond.  The administrative judge found, without conducting a hearing, that the agency terminated the appellant's appointment for post-appointment reasons because, although the conditions of the appellant's probation existed prior to his appointment, he was not terminated based on the existence of the probation conditions themselves, but rather, based on his failure to inform the agency that he was violating the terms of his probation after he began his employment and used agency computer systems.  

Holdings:  The Board granted the appellant's petition for review, reversed the initial decision, and remanded the case to the field office for further adjudication:

1. Under 5 C.F.R.  315.806(c), a probationary employee whose termination was based in whole or in part on conditions arising before his appointment may appeal his termination to the Board on the ground that it was not effected in accordance with the procedural requirements set forth in 5 C.F.R.  315.805.  

2. The Board agreed with the appellant that his termination was based, at least in part, on pre-appointment reasons.  The agency's termination letter specifically cited the terms of the 2007 probation agreement, and both below and on review, the agency maintained that it terminated the appellant based on the conditions of his probation agreement, as well as on his failure to disclose that such conditions would prevent him from performing his duties.  The Board disagreed with the agency's contention that the appellant was terminated based on post-appointment reasons because his probation was merely a preexisting condition that affected his post-appointment performance by preventing him from performing his duties, and distinguished the cases on which the agency relied.  

3. It was undisputed that the agency did not afford the appellant the procedural protections of 5 C.F.R.  315.805, which include advance notice of the termination, an opportunity to respond, and consideration of the response.  Nevertheless, this failure does not warrant reversing the personnel action unless the agency's failure to follow these procedures was harmful error.  An agency error is harmful only when the record shows that it was likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error.  Remand to the administrative judge is necessary to determine whether the procedural errors in this case were harmful.  



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