Sky E. Zaloudik v. Department of the Air Force
Background
- Appellant Sky E. Zaloudik, a competitive‑service federal employee, was terminated from an appointment dated November 30, 2015 that carried a one‑year probationary period; termination occurred ~6 months into that appointment.
- Zaloudik asserted he had ~8 years of combined prior service with the Air Force but had resigned his earlier position on August 8, 2014.
- He filed a Board appeal of the probationary termination; the administrative judge dismissed for lack of jurisdiction, finding he failed to nonfrivolously allege employee status under 5 U.S.C. § 7511.
- Zaloudik argued on review that his prior service and a later alcohol‑rehabilitation completion established his employee status and the merits of the termination.
- The Board denied the petition for review, holding the appellant’s prior service did not immediately precede the probationary appointment (break >30 days) and he did not have 1 year of current continuous service immediately preceding the adverse action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Board has jurisdiction because appellant is an "employee" under 5 U.S.C. § 7511(a)(1)(A)(i) (not a probationer) | Prior service with agency should be tacked to count toward completion of probation | Prior service did not immediately precede the November 30, 2015 appointment and there was a break in service >30 days, so tacking fails | Held: No — tacking requirements not met; prior service does not count |
| Whether Board has jurisdiction because appellant meets § 7511(a)(1)(A)(ii) (1 year of current continuous service) | Appellant claims sufficient combined/continuous service | Appellant did not have 1 year of continuous federal service immediately preceding the termination; he admitted at least a 2‑month break | Held: No — appellant did not allege 1 year of current continuous service |
| Whether appellant’s arguments about merits (rehabilitation, future performance) affect jurisdiction | Rehabilitation and improved performance negate termination or show error | Merits arguments are irrelevant to jurisdictional threshold | Held: Not relevant — merits do not establish Board jurisdiction |
| Whether administrative judge erred in applying 5 C.F.R. §§ 315.805, 315.806 for probationary termination jurisdiction | Appellant did not challenge these specific findings on review | Agency relied on those regulations to support lack of jurisdiction | Held: No error found; appellant did not overcome these findings |
Key Cases Cited
- Hurston v. Department of the Army, 113 M.S.P.R. 34 (2010) (sets tacking criteria for counting prior service toward probation completion)
- Ellefson v. Department of the Army, 98 M.S.P.R. 191 (2005) (defines "current continuous service" as service immediately preceding an adverse action without a break of a workday)
- Schmittling v. Department of the Army, 219 F.3d 1332 (Fed. Cir. 2000) (merits ruling is null absent Board jurisdiction)
- Sapla v. Department of the Navy, 118 M.S.P.R. 551 (2012) (appellant’s merits arguments do not affect whether Board has jurisdiction)