X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The full case caption appears at the end of this opinion. NEWMAN, Circuit Judge. Jodi L. Chase-Baker petitions for review of a final decision of the Merit Systems Protection Board, Docket No. DE315H980337-I-1, dismissing Ms. Chase-Baker’s appeal for lack of jurisdiction. The Board held that Ms. Chase-Baker had no right to appeal her dismissal because she was a probationary employee at the time of her termination and her claims of marital status discrimination were not well founded and thus did not vest the Board with jurisdiction to hear an appeal. Because the Board’s decision was in accordance with the law, based on findings supported by substantial evidence, the dismissal is affirmed. BACKGROUND Ms. Chase-Baker received a career conditional appointment to the position of Office Automation Clerk with the Department of Justice effective March 29, 1998. She was terminated from the position on June 8, 1998 based upon charges of excessive absence without leave. There were two periods of absence without leave leading to the termination: 1) an absence of 32 hours from April 7, 1998 to April 10, 1998 relating to a dental problem; and 2) an absence from May 4, 1998 to June 8, 1998 stemming from substance abuse and mental health problems, during which period Ms. Chase-Baker was a patient in at least two different detoxification and crisis centers. On June 10, 1998, Ms. Chase-Baker filed an appeal to the Board. She argued that her termination was improper for a variety of reasons, including her efforts to contact her supervisor regarding her absence by letter, a mental health disability, and a past head injury. The administrative judge assigned to the case advised Ms. Chase-Baker that the Board appeared to lack jurisdiction of the appeal because Ms. Chase-Baker was a probationary employee at the time of her termination, and thus had limited rights of appeal. The administrative judge explained that a probationary employee may appeal a termination only on the grounds that the termination was based on partisan political reasons or marital status, or on conditions arising before appointment. See 5 C.F.R. �315.806(a)-(c). Ms. Chase-Baker was ordered to show that her appeal was within the Board’s jurisdiction. By letter replying to the order Ms. Chase-Baker asserted, in relevant part: My condition is marital and pre-employment conditional. They knew I was abused by both my spouse and my last boyfriend. They also knew that I was hit by a car because I have to wear a leg brace. Ms. Chase-Baker did not dispute that she was a probationary employee. After the receipt of this letter the record closed, and the administrative judge issued an initial decision on the appeal. As a threshold matter, the administrative judge found that the agency’s action was based on post-appointment reasons, citing the agency’s termination letter stating that Ms. Chase-Baker’s absence without leave was the sole reason for the termination. The administrative judge noted that the only issue which might vest the Board with jurisdiction under �315.806 was Ms. Chase-Baker’s statement that “[the department] knew I was abused by both my spouse and my last boyfriend.” However, the administrative judge found that Ms. Chase-Baker’s allegation was not supported by any factual assertions which would be relevant to the issue of marital status discrimination. The administrative judge dismissed the appeal for lack of jurisdiction and the Board denied review. DISCUSSION The Board’s decision must be affirmed unless it is: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence . . . . 5 U.S.C. �7703(c). The Board’s jurisdiction to hear appeals from probationary employees terminated for post-appointment reasons is defined in 5 C.F.R. �315.806. [FOOTNOTE 1] See Stokes v. Federal Aviation Admin., 761 F.2d 682, 684-685 (Fed. Cir. 1985). It was Ms. Chase-Baker’s burden to establish that the Board had jurisdiction of her appeal. See 5 C.F.R. �1201.56(a)(2)(i) (“The appellant has the burden of proof, by a preponderance of the evidence, with respect to . . . [i]ssues of jurisdiction . . . .”). Ms. Chase-Baker’s allegations that she was dismissed because of her marital status and because of existing pre-appointment conditions do not meet this burden. Ms. Chase-Baker’s assertion of abuse by both her husband and last boyfriend does not vest the Board with jurisdiction. The statute is not concerned with the abusiveness of the appellant’s relationships, but only with any difference in treatment of married and unmarried employees. See McClain v. Office of Personnel Management, 76 M.S.P.R. 230, 242 (1997); Miller v. Department of Justice, 41 M.S.P.R. 353, 356 (1989). Whether or not Ms. Chase-Baker was divorced at the time of her termination by the agency — her statement is not clear — she has presented no evidence or suggestion of disparate treatment based on that status. A conclusory pleading, totally devoid of substantive support, is insufficient to establish jurisdiction. See Stokes v. Federal Aviation Admin., 761 F.2d at 685-86. The Board’s decision that Ms. Chase-Baker’s termination was based on post-appointment reasons is supported by substantial evidence. The termination letter stated Ms. Chase-Baker’s “excessive Absent Without Leave (AWOL) and failure to properly request leave for the absences” as the basis of her dismissal. She does not dispute either her absences or her failure to request permission for the absences. No mention was made of an automobile injury until Ms. Chase-Baker’s response to the administrative judge’s order, and no evidence was offered that the injury contributed to her termination or that the procedures required by �315.805 for termination of probationers for conditions arising before appointment were not followed. Accordingly, Ms. Chase-Baker has not established that the Board had jurisdiction over her appeal. The dismissal is AFFIRMED. :::FOOTNOTES::: FN1 In accordance with Kewley v. Department of Health & Human Services, 153 F.3d 1357, 1366 (Fed. Cir. 1998), a probationary employee may also have a right of action under 5 U.S.C. �2302(b)(8) (the Whistleblower Protection Act); this remedy is not relevant to this case.
Chase-Baker v. Department of Justice United States Court of Appeals for the Federal Circuit 99-3260 JODI L. CHASE-BAKER, Petitioner, v. DEPARTMENT OF JUSTICE, Respondent. Jodi L. Chase-Baker, pro se, of Norfolk, Nebraska. James W. Poirier, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, for respondent. With him on the brief were David W. Ogden, Acting Assistant Attorney General; David M. Cohen, Director; and Mark A. Melnick, Assistant Director. Appealed from: Merit Systems Protection Board DECIDED: DECEMBER 17, 1999 Before NEWMAN, Circuit Judge, ARCHER, Senior Circuit Judge, and RADER, Circuit Judge.
 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

New Jersey Legal Awards (NJLA) 2022

September 29, 2022
Florham Park, NJ

New Jersey Law Journal honors lawyers leaving a mark on the legal community in New Jersey with their dedication to the profession.


Learn More

New York Legal Awards 2022 (NYLA)

October 06, 2022
New York, NY

The New York Law Journal honors attorneys and judges who have made a remarkable difference in the legal profession in New York.


Learn More

Women, Influence & Power in Law Awards (WIPLA) 2022

October 18, 2022
Washington, DC

Women, Influence & Power in Law Awards honors women lawyers who have made a remarkable difference in the legal profession.


Learn More

Litigation Associate


A well-respected regional law firm that has represented businesses in Tampa Bay for decades is seeking a commercial litigation associate to ...


Apply Now ›

Tax and T&E Attorney


The Tampa office of a highly-regarded regional law firm is seeking to add depth to their strong transactional team by adding experienced tax...


Apply Now ›

Employment Litigation Associate


A highly-regarded Tampa Bay labor and employment boutique that represents management is seeking an associate with 1-4 years of labor and em...


Apply Now ›

CHIESA SHAHINIAN & GIANTOMASI

09/26/2022
NYLJ Web

Chiesa Shahinian & Giantomasi : Commitment to the highest standards of service.


View Announcement ›

SCHULTEN WARD TURNER & WEISS, LLP

09/21/2022
DR Web

Schulten Ward Turner & Weiss, LLP is pleased to announce that John Gracia has joined the firm as a partner.


View Announcement ›

WISNIEWSKI & ASSOCIATES

09/12/2022
NJLJ Web

WISNIEWSKI & ASSOCIATES LLC Takes pleasure in announcing that Civil Litigator DOUGLAS R. D ANTONIO has become a Partner of the Firm.


View Announcement ›