Alexis Gonzalez v. Department of Justice ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALEXIS GONZALEZ, DOCKET NUMBER
Appellant, NY-315H-14-0239-I-1
v.
DEPARTMENT OF JUSTICE, DATE: November 18, 2014
Agency.
THIS ORDER IS NONPRECEDENTIAL *
Sidney Baumgarten, Esquire, New York, New York, for the appellant.
Tara Roberts, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal of his termination during his
probationary period. For the reasons discussed below, we GRANT the
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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appellant’s petition for review, VACATE the initial decision, and REMAND the
case to the field office for further adjudication in accordance with this Order.
¶2 Effective March 24, 2013, the agency appointed the appellant to a GL-05
Correctional Officer position in the competitive service subject to the successful
completion of a 1-year probationary period. Initial Appeal File (IAF), Tab 5
at 12-14. By notice dated March 20, 2014, the agency informed the appellant that
he was terminated during his probationary period, “effective midnight on
March 21, 2014,” based on alleged misconduct. Id. at 34-36, 42.
¶3 On appeal, the appellant asserted that he completed his probationary period
when he finished his tour of duty on March 20, 2014. IAF, Tab 10. The
administrative judge, however, found that the appellant was still a probationer
when his termination became effective. Initial Decision (ID) at 3. Because the
appellant was terminated for post-appointment reasons and did not make a
nonfrivolous allegation that his termination was based on marital status
discrimination or partisan political reasons, the administrative judge dismissed
the appeal for lack of jurisdiction. ID at 5-6. The appellant petitions for review
of the initial decision and the agency responds in opposition to the appellant’s
petition. Petition for Review (PFR) File, Tabs 1, 3.
¶4 A probationary period ends at the completion of the last day of the
employee’s tour of duty before his anniversary date. Herring v. Department of
Veterans Affairs, 72 M.S.P.R. 96, 100 (1996); 5 C.F.R. § 315.804(b). We cannot
determine from the record when the appellant’s probationary period ended. His
anniversary date was March 24, 2014, and so he would have completed probation
when he finished his last tour of duty on or before March 23, 2014. In order to
take advantage of the procedures applicable in probationer cases, the agency had
to have made the appellant’s termination effective before the moment he finished
his last tour of duty on or before March 23, 2014. See Ward v. Department of
Agriculture, 60 M.S.P.R. 306, 308 (1994). The termination was effective at
midnight on March 21, 2014. Therefore, if the appellant was scheduled to work
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on March 21, 22, or 23, 2014, he was terminated before the end of his
probationary period. While both the appellant’s and the agency’s representatives
have expressed their views about the appellant’s work schedule on those 3 days,
they have not done so in the form of evidence but in the form of unsworn
statements made in pleadings. See Hendricks v. Department of the Navy,
69 M.S.P.R. 163, 168 (1995) (the statements of a party’s representative in a
pleading do not constitute evidence).
¶5 There is no evidence in the record concerning whether the appellant was
scheduled to work on any or all of those 3 days. Moreover, the agency has
presented some evidence on review to show that the appellant was working in a
relief post, and did not necessarily have a regular schedule with the same days off
every week, PFR File, Tab 3 at 6-7, and it is not at all clear whether the appellant
had a schedule that was established in advance.
¶6 The appellant has the burden of proving the Board’s jurisdiction over his
appeal. See, e.g., Baggan v. Department of State, 109 M.S.P.R. 572, ¶ 4 (2008).
Therefore, it is his burden to prove that he was not scheduled to work on
March 21, 22, or 23, 2014. In light of the fact that the appellant first argued that
he had completed his probationary period in a pleading filed 2 days before the
administrative judge issued the initial decision, which deprived the agency of an
opportunity to respond below, and because there is an issue of material fact that
bears substantially on the question of jurisdiction that neither party has fully
addressed, we find it appropriate under the circumstances of this case to remand
the appeal for further development of the record including a jurisdictional
hearing. Cf. Boechler v. Department of the Interior, 109 M.S.P.R. 619, ¶ 16
(2008) (the Board has an interest in ensuring that jurisdictional determinations are
correct), aff’d, 328 F. App’x 660 (Fed. Cir. 2009).
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ORDER
For the reasons discussed above, we REMAND this case to the field office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.