UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
DAWN SIKORA, DOCKET NUMBER Appellant, AT-315H-25-0250-I-1
v.
DEPARTMENT OF AGRICULTURE, DATE: August 14, 2026 Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Ruth Sikora , Lisle, Illinois, for the appellant.
Patrick John O’Connor and Dora Malykin , Washington, D.C., for the agency.
BEFORE
Henry J. Kerner, Vice Chairman James J. Woodruff II, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which dismissed her probationary termination appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review. We AFFIRM the initial decision’s findings regarding the Board’s lack of jurisdiction under chapter 75 and Office of Personnel Management (OPM) regulations,
1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
VACATE the initial decision’s finding regarding the lack of Board jurisdiction over the appellant’s allegation of reprisal for whistleblowing, and REMAND the case to the Atlanta Regional Office for further adjudication of that claim in accordance with this Remand Order.
BACKGROUND
On February 25, 2024, the agency appointed the appellant to the competitive service position of Insect Production Worker, subject to a 1-year probationary period. Initial Appeal File (IAF), Tab 6 at 7. The agency terminated the appellant’s employment on July 30, 2024, prior to the completion of her probationary period, because “all accommodation options ha[d] been exhausted with no reasonable accommodation found,” and her performance “failed to demonstrate fitness or qualifications for continued employment.” Id. at 9-13. The termination notice advised the appellant of her options for obtaining review of the agency’s decision, including her options to file an Equal Employment Opportunity (EEO) complaint, seek corrective action from the Office of Special Counsel (OSC), or obtain limited review from the Board. Id. at 12-13. The notice also advised the appellant that the deadline for filing a Board appeal was 30 days after the effective date of the agency’s action or the date she received the notice. Id. at 12.
On January 2, 2025, the appellant appealed her probationary termination to the Board, arguing that her employment was terminated in retaliation for engaging in protected activities and because of discrimination based on her disabilities, marital status, and “perceived political affiliation.” IAF, Tab 1 at 2. She alleged that her requests for reasonable accommodation were denied, that her supervisors took “retaliatory actions” against her, that her colleagues harassed her, that her bathroom use was monitored, that she was subjected to false allegations, and that discriminatory remarks were made about her marital status and political affiliation, all of which created a hostile work environment. Id. The
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administrative judge issued an acknowledgement order advising the appellant of what she must allege to establish Board jurisdiction as either an employee with a statutory right to appeal, or a probationary employee with a regulatory right to appeal a termination based on marital status, partisan political reasons, or conditions arising before appointment. IAF, Tab 2 at 2-5. The order also explained how the appellant could show that she had completed her probationary period by tacking on prior service. Id. at 4-5. The appellant did not respond. Without holding the requested hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction, finding that the appellant failed to nonfrivolously allege any statutory or regulatory basis for Board jurisdiction over her probationary termination. IAF, Tab 7, Initial Decision (ID) at 3-4. He also determined that, because the Board lacked jurisdiction over the appeal, he could not address her whistleblower and EEO retaliation and discrimination claims and did not need to address the potential untimeliness of the appeal. ID at 4.
The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, the agency has filed a response, PFR File, Tab 5, and the appellant has filed a reply to the agency’s response, PFR File, Tab 9. On petition for review, the appellant claims that the initial decision contains erroneous findings of fact and is based on an incorrect interpretation of law or regulation. PFR File, Tab 1 at 4-5. She further argues that new and material evidence has become available and that procedural errors or abuses of discretion affected the outcome. Id. at 5-7.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the Board lacks jurisdiction under chapter 75 and OPM regulations over the appellant’s probationary termination.
The Board’s jurisdiction is limited by law, rule or regulation, and therefore, it does not have jurisdiction over all matters that are alleged to be unfair or
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incorrect. See, e.g., Roberts v. Department of the Army, 168 F.3d 22, 23-24 (Fed. Cir. 1999); Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985); Winns v. U.S. Postal Service, 124 M.S.P.R. 113, ¶ 7 (2017), aff’d sub nom. Williams v. Merit Systems Protection Board, 892 F.3d 1156 (Fed. Cir. 2018). For the Board to have jurisdiction over an appeal from a competitive service termination, the appellant must (i) not be serving a probationary or trial period under an initial appointment, or (ii) have completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less. 5 U.S.C. §§ 7511(a)(1)(A), 7512(1), 7513(d); McCormick v. Department of the Air Force, 307 F.3d 1339, 1342-43 (Fed. Cir. 2002).
A probationary employee in the competitive service who does not have a statutory right of appeal to the Board nevertheless may have a regulatory right to appeal if she makes a nonfrivolous allegation that the agency terminated her because of discrimination based on marital status or partisan political reasons, or because of conditions arising before appointment to the position in question. 5 C.F.R. §§ 315.805-315.806. 2 Nonfrivolous allegations are allegations of fact which, if proven, could establish a prima facie case that the Board has jurisdiction over the matter at issue. Smirne v. Department of the Army, 115 M.S.P.R. 51, ¶ 8 (2010); 5 C.F.R. § 1201.4(s).
The parties do not dispute the administrative judge’s finding that the appellant was not an “employee” with a statutory right to appeal her termination because she was serving a probationary period and had less than 1 year of current continuous service. ID at 3. Rather, on review, the appellant argues that the administrative judge erred in finding that she failed to nonfrivolously allege that
2 The regulatory right of an employee in the competitive service to appeal a termination to the Board on these grounds was rendered inoperative and without effect for actions taken on or after April 24, 2025, and has now been formally rescinded as directed by Executive Order 14284. See Strengthening Probationary Periods in the Federal Service, 90 Fed. Reg. 26727-01 (June 24, 2025). The appellant was terminated before April 24, 2025. IAF, Tab 6 at 9.
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her termination was based on marital status discrimination and partisan political reasons because she raised these claims in her EEO complaint. PFR File, Tab 1 at 4-5. This argument is unavailing for several reasons.
First, the appellant’s EEO complaint was not in the record before the administrative judge. Indeed, the appellant did not submit any EEO-related materials until she filed her reply to the agency’s response to her petition for review. PFR File, Tab 9. The Board generally will not consider evidence submitted for the first time on review absent a showing that it was previously unavailable despite the party’s due diligence. See Washington v. Department of the Navy, 77 M.S.P.R. 525, 528-29 (1998); Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d). To constitute new and material evidence, the information contained in the documents, not just the documents themselves, must have been unavailable despite due diligence when the record closed. Grassell v. Department of Transportation, 40 M.S.P.R. 554, 564 (1989). Even if we assume, arguendo, that the appellant’s EEO documents were previously unavailable to her, she has not adequately explained why she was unable to repeat the allegations of marital status and partisan political discrimination that she raised in her EEO complaint in her Board appeal before the record closed below. 3 Second, the allegations contained in the appellant’s 1,588-page reply do not amount to nonfrivolous allegations of marital status and partisan political discrimination. As noted, a nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. Smirne, 115 M.S.P.R. 51, ¶ 8; 5 C.F.R. § 1201.4(s). An allegation generally will be considered nonfrivolous when, under oath or penalty of perjury, an individual makes an allegation that is more than
3 For example, the appellant vaguely asserts that “key evidence” was previously “inaccessible . . . due to disability-related barriers and technical issues,” PFR File, Tab 9 at 6, and that she failed to respond to the administrative judge’s acknowledgment order because the request for additional information was not sufficiently clear or detailed, and her disability creates “communication challenges,” PFR File, Tab 1 at 6.
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conclusory, plausible on its face, and material to the legal issues in the appeal. Lewis v. Department of Defense, 123 M.S.P.R. 255, ¶ 7 (2016). The appellant’s allegations of marital status discrimination are (1) that her marital status was a factor in her termination, because “as a single person with a disability, it is harder to prepare for work,” and (2) that a colleague remarked that he felt “[s]orry for [her] future husband.” PFR File, Tab 9 at 7, 37, 131. As for partisan political discrimination, the appellant’s allegations are (1) that her political affiliation was a factor in her termination, because “it is part of the sexual harassment component” of her EEO claims, and (2) that she was “barr[ed] . . . from sitting on the shaded patio due to political affiliation,” i.e., that her coworker “restrict[ed] seating based on bias.” Id. at 7, 12, 37, 131. These allegations do not meet the nonfrivolous standard.
Also for the first time on review, the appellant contends that the agency violated 5 C.F.R. § 315.805 because it did not provide her with advanced written notice and an opportunity to respond prior to effecting her probationary termination. PFR File, Tab 1 at 5, Tab 9 at 6. This argument likewise fails. The agency was obliged to comply with the procedural requirements set forth in 5 C.F.R. § 315.805 if the agency terminated the appellant for reasons arising before the appointment. See Blount v. Department of the Treasury, 109 M.S.P.R. 174, ¶ 5 (2008). However, the Board distinguishes between a preexisting condition and the effect that the condition has on an employee’s performance during her probationary period. West v. Department of Health and Human Services, 122 M.S.P.R. 434, ¶ 10 (2015). Thus, the appellant’s inability to perform her job duties because of disabilities that existed preappointment, and of which the agency was aware, is nonetheless a postappointment reason for termination. See Cunningham v. Department of the Army, 119 M.S.P.R. 147, ¶ 8 (2013). Therefore, we agree with the administrative judge that the appellant failed to nonfrivolously allege any statutory or regulatory basis for Board jurisdiction over her probationary termination.
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Consequently, we also agree with the administrative judge that the Board lacks jurisdiction over the appellant’s disability discrimination claims. It is well established that, absent an otherwise appealable action, discrimination claims or other allegations of prohibited personnel practices under 5 U.S.C. § 2302(b) do not provide an independent basis for Board jurisdiction. Pridgen v. Office of Management and Budget, 117 M.S.P.R. 665, ¶ 7 (2012) (citing Garcia v. Department of Homeland Security, 437 F.3d 1322, 1342-43 (Fed. Cir. 2006) (en banc) and Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982)). Accordingly, we affirm these findings. However, for the reasons discussed below, we vacate the administrative judge’s finding that the Board lacks jurisdiction over the appellant’s claims of retaliation for engaging in protected activities under the whistleblower protection statutes. ID at 4; see Hessami v. Merit Systems Protection Board, 979 F.3d 1362, 1367 (Fed. Cir. 2020).
We remand this appeal for further proceedings because the appellant did not receive explicit notice of what is required to establish Board jurisdiction under the whistleblower protection statutes.
We find that remand is required for further proceedings because it appears that the appellant may be attempting to bring an individual right of action (IRA) appeal under the whistleblower protection statutes. An appellant must receive explicit information on what is required to establish Board jurisdiction. Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985); Burwell v. Department of the Army, 78 M.S.P.R. 645, ¶¶ 8-9 (1998) (remanding an appeal due to the administrative judge’s failure to advise the appellant what was required to establish Board jurisdiction over an IRA appeal). The administrative judge’s acknowledgment order, the initial decision, and the agency’s submission below did not provide the appellant with notice on the jurisdictional requirements of an IRA appeal. IAF, Tabs 2, 6, 7; see Harris v. U.S. Postal Service, 112 M.S.P.R. 186, ¶ 9 (2009) (stating that an administrative
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judge’s failure to provide an appellant with proper Burgess notice can be cured if the agency’s pleadings or the initial decision contain the notice that was otherwise lacking). Although the appellant’s appeal form indicates that she did not file a whistleblower complaint with OSC, she explicitly alleged that her termination violated the whistleblower protection statutes because it was effected in retaliation for “protected activities, including reporting sexual harassment and filing an EEO complaint.” IAF, Tab 1 at 2-3.
The appellant must receive notice that to establish Board jurisdiction over an IRA appeal, she must show that she exhausted her administrative remedies before OSC and make nonfrivolous allegations of the following: she made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity as specified in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). Williams v. Department of Defense, 2023 MSPB 23, ¶ 8; Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016); see Smolinski v. Merit Systems Protection Board, 23 F.4th 1345, 1350 (Fed. Cir. 2022). Because the appellant was not so informed, it is necessary to remand this appeal to the regional office to provide her with an adequate opportunity to establish jurisdiction. 4 Burwell, 78 M.S.P.R. 645, ¶ 9.
4 If, based on the appellant’s jurisdictional response, it appears that the timeliness of any such IRA appeal is at issue, the administrative judge shall inform the appellant of the applicable law relevant to the timeliness issue and provide the appellant with an opportunity to submit evidence and argument establishing that her appeal was timely filed or that there is a basis for equitable tolling of the statutory deadline. See Heimberger v. Department of Commerce, 121 M.S.P.R. 10, ¶¶ 9-10 (2014).
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ORDER
For the reasons discussed above, we remand this case to the Atlanta Regional Office for further adjudication in accordance with this Remand Order. The administrative judge may incorporate his prior findings regarding the Board’s lack of jurisdiction over the appellant’s probationary termination under chapter 75 and 5 C.F.R. §§ 315.805-315.806 in his remand initial decision. 5
FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board
Washington, D.C.
5 On March 5 and March 21, 2025, the appellant filed motions for leave to file additional pleadings regarding purported difficulties in serving the agency representative, issues with the Board’s e-Appeal system, and her desire to “preserve a full and accurate account of the procedural issues that arose in [her] case.” PFR File, Tab 4 at 3-4, Tab 8 at 3-4. We deny the appellant’s motion because she has not shown how the evidence she seeks to submit is material to the dispositive issues in this appeal. See 5 C.F.R. §§ 1201.114(a)(4), 1201.115(d). On remand, the appellant may submit evidence relevant to the issue of Board jurisdiction over her IRA appeal consistent with the Board’s regulations and the administrative judge’s instructions.