UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

KATARZYNA DOMINCZAK,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBER

AT-315H-15-0029-I-1

DATE: May 6, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Terry Trivedi, Orlando, Florida, for the appellant.

Teena Mathew Makil, Esquire, Dallas, Texas, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed her probationary termination appeal for lack of jurisdiction. Generally, 

we grant petitions such as this one only when: the initial decision contains 

erroneous findings of material fact; the initial decision is based on an erroneous 

interpretation of statute or regulation or the erroneous application of the law to 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
2

the facts of the case; the judge’s rulings during either the course of the appeal or 

the initial decision were not consistent with required procedures or involved an 

abuse of discretion, and the resulting error affected the outcome of the case; or 

new and material evidence or legal argument is available that, despite the 

petitioner’s due diligence, was not available when the record closed. See Title 5 

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). 

After fully considering the filings in this appeal, and based on the following 

points and authorities, we conclude that the petitioner has not established any 

basis under section 1201.115 for granting the petition for review. Therefore, we 

DENY the petition for review and AFFIRM the initial decision, which is now the 

Board’s final decision. 5 C.F.R. § 1201.113(b). 

BACKGROUND

¶2 On September 9, 2013, the agency appointed the appellant to the position of 

Contract Price/Cost Analyst, a career-conditional appointment in the competitive 

service, subject to the satisfactory completion of a 1-year probationary period. 

Initial Appeal File (IAF), Tab 6 at 11. The agency issued a notice of termination 

during her probationary period for unacceptable performance on September 4, 

2014, effective the following day. Id. at 33. The termination memorandum noted 

performance concerns previously expressed to the appellant by her supervisor

during her second- and third-quarter periodic progress assessments. Id. The 

appellant filed an appeal with the Board, alleging, among other things, that the 

agency had illegally terminated her and that her supervisor had failed to comply 

with collective bargaining agreement provisions, including the grievance and 

counseling procedures prescribed therein. IAF, Tab 1 at 4-5, 16. She specifically 

alleged that her supervisor had not followed the collective bargaining agreement 

provision regarding agency actions based upon unacceptable performance and that 

the agency had not offered the union representation to which she was entitled. Id. 

at 17-21.
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¶3 The administrative judge notified the appellant that the Board may lack 

jurisdiction over her termination and informed her how to establish that she had 

appeal rights under 5 U.S.C. chapter 75 or regulatory appeal rights as a 

probationary employee in the competitive service as set forth at 5 C.F.R. 

§ 315.806. IAF, Tab 3 at 2-4. The appellant responded that the Board has

jurisdiction over her appeal under the “procedural protections” of 5 C.F.R. 

§§ 315.805, 315.806, governing the termination of probationers for conditions 

arising before appointment, but she provided no specific facts concerning the 

reasons for her termination. See IAF, Tab 5 at 1. The agency filed a motion to 

dismiss the appeal, arguing that the Board lacks jurisdiction over the appeal 

because the appellant was a probationary employee when she was terminated for 

post-appointment reasons. IAF, Tab 6 at 7. The agency stated that the 

termination letter had clearly outlined the reasons for the appellant’s termination, 

and that she had provided no evidence or support for her allegation that the

termination was based on pre-appointment reasons. Id. at 7-8. The appellant 

responded, arguing that she should not have been terminated for several reasons, 

including her membership in a bargaining unit, the agency’s having committed an 

unfair labor practice by violating the grievance procedures in the collective 

bargaining agreement, and the agency’s failure to fully respond to her discovery 

request below. IAF, Tab 7 at 1-2.

¶4 In an initial decision issued without holding the requested hearing, the 

administrative judge dismissed the appeal for lack of jurisdiction, finding that the 

appellant failed to allege facts supporting a finding that she was an “employee” 

with Board appeal rights or that her termination “fell within the limited 

circumstances in which the Board may adjudicate the termination of a 

probationary employee.” IAF, Tab 8, Initial Decision (ID) at 4. The 

administrative judge noted that the appellant had not alleged that she was 

terminated because of partisan political reasons or marital status and that, in 

contrast to her bare allegation that her termination was for pre-appointment 
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reasons, the termination notice clearly stated that she was terminated for 

post-appointment unacceptable performance. See ID at 3-4. The administrative 

judge found that the appellant’s allegations regarding the agency’s alleged breach 

of the collective bargaining agreement failed to address the jurisdictional issue. 

ID at 4 n.2.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 On review, the appellant argues that the initial decision contained erroneous 

findings of material facts, primarily contesting the administrative judge’s finding 

that the nature of her appointment determines her Board appeal rights and instead 

asserting that the nature of her employment is part of her contract. Petition for 

Review (PFR) File, Tab 1 at 1-2. She argues that the administrative judge 

ignored her discrimination complaint concerning an alleged hostile work 

environment in which mentors spoke Spanish in front of her and thus excluded

her from conversations. Id. at 2. She also argues that the Board has jurisdiction 

over her appeal because she is a dues-paying bargaining unit member covered by 

the collective bargaining agreement. Id. at 4. She asserts, moreover, that the 

administrative judge’s “rulings were not consistent with required procedures and 

did not provide enough weight to the case,” but she makes no allegations of 

specific procedural errors or evidence improperly weighed in the initial decision. 

Id. In addition, she argues that she would like to submit “new and material 

evidence” on review, but asserts that her agency computer was “confiscated” and

“contained vital information that would help to establish jurisdiction.” Id. She

also raises additional allegations against her former supervisor, without reference 

to any findings in the initial decision or argument that these allegations pertain to 

the jurisdictional issue in her appeal. Id. at 5-12.

¶6 The agency responds that the petition for review does not establish that the 

initial decision contained erroneous findings of material fact, and it maintains that 

the Board lacks jurisdiction over the present appeal under 5 C.F.R. §§ 315.805, 
5

315.806. PFR File, Tab 4 at 9-11. The agency further asserts that the appellant 

raises new issues in her petition for review regarding alleged violations of the 

collective bargaining agreement and Executive Order 13522, but has not 

demonstrated that her arguments are based on any material evidence that was not 

available when the record closed. Id. at 11.

¶7 The administrative judge correctly found that the appellant failed to make a 

nonfrivolous allegation that the Board has jurisdiction over the present appeal. 

Generally, the Board lacks jurisdiction over a probationary employee’s appeal 

from a termination during her first year of federal civilian employment.

2

 Hurston 

v. Department of the Army, 113 M.S.P.R. 34, ¶ 8 (2010). To establish Board 

jurisdiction under 5 U.S.C. chapter 75, an individual must, among other things, 

show that she satisfies one of the definitions of “employee” in 5 U.S.C. 

§ 7511(a)(1). See 5 U.S.C. § 7513(d); Walker v. Department of the Army, 

119 M.S.P.R. 391, ¶ 5 (2013). The administrative judge properly found that the 

appellant was not an “employee” in the competitive service with adverse action 

appeal rights to the Board because she was serving a 1-year probationary period 

when she was terminated and had not completed 1 year of continuous service 

under other than a temporary appointment limited to 1 year or less. ID at 3. The 

appellant has not contested this finding on review, and we find no reason to 

disturb it.

¶8 A probationary employee in the competitive service may appeal to the 

Board under limited circumstances set forth at 5 C.F.R. § 315.806. The Board 

has jurisdiction over termination appeals under 5 C.F.R. § 315.806 in situations in 

which the agency’s action was improperly based on partisan political reasons or 

marital status, or taken through improper procedures when the employee was 

terminated for reasons based in whole or in part on conditions arising prior to her 

 2 The appellant does not dispute that she was serving a probationary period at the time 

of her termination. See IAF, Tab 1 at 4.
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appointment.3 The administrative judge found that the appellant made no 

allegation that her termination was based on partisan political reasons or marital 

status, and she likewise has made no such argument on review. ID at 4; see PFR 

File, Tab 1 at 1-4. The appellant has neither alleged nor shown error in the 

administrative judge’s finding that she did not make a nonfrivolous allegation that 

she was terminated for pre-appointment reasons, and thus that she has no Board 

appeal rights under 5 C.F.R. § 315.806 on the ground that her termination was not 

effected in accordance with the procedural requirements of 5 C.F.R. § 315.805. 

See ID at 3-4. In fact, the appellant has alleged no facts concerning any 

pre-appointment condition contributing to her termination. See ID at 4; IAF, Tab 

5 at 1, Tab 7 at 2-3.

¶9 We have reviewed the appellant’s remaining arguments and find that she 

has presented no basis for disturbing the findings of the administrative judge 

concerning her failure to make a nonfrivolous allegation of Board jurisdiction. 

Contrary to the appellant’s repeated assertions on review, her status as a member 

of a collective bargaining agreement provides no termination appeal rights before 

the Board, and the initial decision correctly stated that it was the nature of her 

appointment that determined any Board appeal rights. See PFR File, Tab 1 at 2; 

ID at 4 n.2. Thus, despite the appellant’s discussion of the grievance and 

performance-based action procedures outlined in the collective bargaining 

agreement, see IAF, Tab 7 at 2; PFR File, Tab 1 at 1-4, any such contractual 

provisions do not affect her appeal rights. The appellant did not repeat her 

argument below regarding the agency’s failure to produce all requested discovery, 

see IAF, Tab 7 at 2, but instead argues that there was new and material evidence 

on her agency computer that would help to establish jurisdiction, PFR File, Tab 1 

at 4. However, the appellant has failed to show that any additional discovery 

would have affected the jurisdictional issue in her appeal, or that she has been 

 3 The termination notice informed the appellant of these limited appeal rights during her 

probationary period. IAF, Tab 6 at 34.
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prejudiced by the administrative judge having decided the jurisdictional issue 

without this purported evidence. To the extent that the appellant’s general 

reference to a previous Board decision concerning an employee’s removal for 

unacceptable performance under 5 U.S.C. chapter 43 constituted an argument to 

appeal her termination under such provisions, see IAF, Tab 7 at 1, 6-7, she has 

not contested that she was a probationary employee and thus, she was not entitled 

to have her termination effected under chapter 43 procedures. Consequently, 

even assuming any alleged errors by the administrative judge, such actions would 

have no effect on the outcome of this case and provide no basis for disturbing the 

initial decision. See 5 C.F.R. § 1201.115(c); see also Karapinka v. Department of 

Energy, 6 M.S.P.R. 124, 127 (1981). Finally, regarding the appellant’s assertion 

on review that the administrative judge ignored her allegations of discrimination, 

see PFR File, Tab 1 at 2, we note that the Board cannot review her discrimination 

claims absent an otherwise appealable action. See Garcia v. Department of 

Homeland Security, 437 F.3d 1322, 1342-43 (Fed. Cir. 2006). 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 
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and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information is available at the court’s website, 

www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se 

Petitioners and Appellants,” which is contained within the court’s Rules of 

Practice, and Forms 5, 6, and 11.

If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for 

information regarding pro bono representation for Merit Systems Protection 

Board appellants before the Federal Circuit. The Merit Systems Protection Board 

neither endorses the services provided by any attorney nor warrants that any 

attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board