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Hardy v. Merit Systems Protection Bd.

Decided: January 5, 1994.


Appealed from: Merit Systems Protection Board

Before Mayer, Rader, and Schall, Circuit Judges.


MAYER, Circuit Judge.

Jerry D. Hardy appeals the decision of the Merit Systems Protection Board, No. DE315I920364-I-1, November 19, 1992,*fn1 in which the board held it had no jurisdiction to hear Hardy's appeal of the termination of his appointment to a supervisory position with the Federal Law Enforcement Training Center in Artesia, New Mexico, because he was a probationary employee at the time. We affirm.


On January 8, 1991, Hardy was assigned as the acting chief of the Artesia Training Division, Federal Law Enforcement Training Center, United States Department of the Treasury (agency). Prior to this, he had been a training instructor in the division. On May 5, 1991, Hardy was officially promoted to chief of the division, subject to a one year probationary period. On May 4, 1992, he was provided a letter signed by his supervisor, David McKinley, which said that he would be demoted to his former position as of that day at 4:00 p.m. However, when he received the notice of removal, he was on approved annual leave from May 4 at 10:00 a.m. until May 5 at 4:00 p.m. Nevertheless, his removal was effected.

Hardy appealed to the board, which informed him that his appeal raised a question about jurisdiction and provided him an opportunity to address the issue. The board declined Hardy's request for a hearing because he had raised no facts, which if proved, would establish jurisdiction.

The board held that Hardy's probationary period would have ended on May 4, 1992, at 5:00 p.m., regardless of the fact that he had acted as chief for 117 days prior to his official promotion and was on annual leave that day. Because the board concluded that the agency removed him on May 4, 1992, at 4:00 p.m., before the probationary period ended, it concluded that there was no jurisdiction to hear the case. This appeal followed.


A probationary employee on initial appointment to a supervisory position who is removed to a nonsupervisory position has no right to appeal to the Merit Systems Protection Board unless the employee offers a non frivolous allegation that removal was based on partisan political reasons or marital status. 5 U.S.C. § 7511(a)(1); 5 C.F.R. § 315.908.*fn2 Hardy does not so allege; instead, he contends that he was not a probationary employee when he was demoted. To show this, and establish board jurisdiction, Hardy must prove that the agency's action did not become effective before the end of his probationary period. For the reasons set out below, we agree with the board that Hardy did not sustain this burden.

Ordinarily, an employee's one year probationary period ends on the completion of the employee's tour of duty on the last day before the anniversary date of the employee's appointment. See Federal Personnel Manual (FPM) Ch. 315, § 8-4(d) (April 27, 1982). A "tour of duty" is an employee's regularly scheduled hours and days of duty. See FPM Ch. 296-33, Subch. 35 (January 8, 1993). Although the last day before his anniversary date was May 4, 1992, and his regularly scheduled tour of duty ended at 5:00 p.m., Hardy attempts to demonstrate that his probationary period ended at or sometime prior to 4:00 p.m. on May 4, 1992, the time at which the agency purported to demote him by the letter.

Hardy first argues that the probationary period ended on May 4, 1992, at 10:00 a.m., when he went on approved annual leave. He analogizes his case to those in which the board has held that where an employee's anniversary date falls on a Monday, and the employee has no tours of duty on Saturday or Sunday, the probationary period ends at the close of his or her tour of duty on Friday. See, e.g., Hawkins v. Dept. of Treasury, 52 M.S.P.R. 686 (1992); Ibrahim v. Dept. of Agriculture, 51 M.S.P.R. 269 (1991). Without passing on the correctness of these cases, we reject Hardy's contention that annual leave is the same as weekend and holiday periods.

Hardy does not dispute that his regularly scheduled duty hours were Monday through Friday from 8:00 a.m. to 5:00 p.m., with one hour for lunch from noon to 1:00 p.m. He was required to request annual leave for his absence on May 4 and 5, 1992, specifically because he was scheduled to work on those days. His taking of annual leave did not alter the fact that he was regularly scheduled to work until 5:00 p.m. on May 4, the day before his anniversary date. We see no error in the board's determination that Hardy's annual leave did not alter the end of his probationary period.

In the alternative, Hardy argues that the 117 days in which he acted as chief of the division prior to his official appointment to that position should be applied toward his probationary period. Office of Personnel Management regulations governing probation on initial appointment to a supervisory or managerial position refer to the Federal Personnel Manual for the conditions under which prior service is counted toward completion of a probationary period. 5 C.F.R. § 315.906 (1993).*fn3 Chapter 315 of the FPM covers career and career conditional positions generally, and subchapter 8 of that chapter governs probation. In turn, subchapter 8 ...

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