UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ALEXIS GONZALEZ,

Appellant,

v.

DEPARTMENT OF JUSTICE,

Agency.

DOCKET NUMBER

NY-315H-14-0239-I-1

DATE: November 18, 2014

THIS ORDER IS NONPRECEDENTIAL*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 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board