By Barbara Haga, August 14, 2023

[Editor’s note: This is the third in a series of articles on excepted service, trial periods, and appeal rights. Read Barbara’s first two articles here and here.]

This month, we look at even more distinctions between probationary period appeal rights and those of excepted employees. Practitioners need to ensure they have considered these distinctions when taking a termination action.

5 CFR 315 makes a distinction in processing the termination of probationary employees for reasons prior to the appointment (such as falsification of a resume or failure to disclose information on employment documents) and reasons that arose after employment (such as unsatisfactory performance or failure to follow conduct rules on the job).  If the agency does not follow the proper set of procedures for the pre-appointment actions, the Board will have jurisdiction to review the process by which termination took place, not the substance of the reasons why the action was taken.

These determinations sometimes seem like “chicken and egg” situations. In Rivera v. Navy, 114 MSPR 52 (2010), the employee failed to qualify for a credit card. Without a credit card, he was unable to attend the extensive training required for his police officer position. Rivera argued that the prior credit issues before his employment led to the denial of the credit card. Thus, he should have been given notice and a right to respond as required by 5 CFR 315.806. The Board wrote, “there is a distinction between a preexisting condition and the effect that condition has on an employee’s performance during his probationary period.”  In this case, the Board found that while not qualifying for the credit card was attributable to pre-employment conditions, Rivera was actually terminated for a post-appointment deficiency.

The good news is that there is no such consideration for termination of most excepted employees.  There’s no differentiation between pre- or post-appointment terminations notice requirements.

Marital status and partisan politics

5 CFR 315.806(b) provides that a probationary employee may appeal a termination alleged to be based on partisan political reasons or marital status. Appeals on this basis do not extend to excepted employees except as discussed below with appointments that convert to competitive service.  See Allen v. Navy, 102 MSPR 302 (2006). In several cases, the Board has noted that agencies have provided misinformation in their termination notices indicating that employees could appeal on these bases. See Barrand v. Department of Veterans Affairs, 112 MSPR 210 (2009); Ramirez-Evans v. Department of Veterans Affairs, 113 MSPR 297 (2010).

5 USC 75l1(a)(1)(C)(i) excludes from the definition of “employee” those (other than preference eligibles) in the excepted service serving a probationary or trial period under an initial appointment pending conversion to the competitive service.

Because these are competitive positions occupied by excepted employees, OPM has issued regulations explicitly providing competitive-type provisions to these employees.  5 CFR 307.105 states:

Individuals serving under VRAs have the same appeal rights as excepted service employees under parts 432 and 752 of this chapter. In addition, as established in § 315.806 of this chapter, any individual serving under a VRA, whose employment under the appointment is terminated within 1 year after the date of such appointment, has the same right to appeal that termination as a career or career-conditional employee has during the first year of employment.

Given this, a VRA appointee, just like a career or career-conditional employee, may appeal his probationary period termination to the Board if he alleges his termination was based on partisan political reasons or marital status, or that his termination for pre-appointment conditions was procedurally deficient.

In LeMaster v. Department of Veterans Affairs, 123 MSPR 453 (2016), a probationary employee was terminated based on his failure to disclose a 2007 court-ordered probation agreement following his release from prison for bank fraud.  The terms of the agreement meant that he was required to inform any employer or prospective employer of his current conviction and supervision status. The agreement also prohibited him from possessing or using a computer with access to any online service without the prior written approval of the court.

The VA’s position was he was terminated for post-appointment misconduct for failing to disclose the probation agreement. The termination also noted his inability to use the agency’s computer system prevented him from performing his job duties.

The AJ dismissed the case for lack of jurisdiction. Unfortunately for the VA, the Board had a different view. It found LeMaster’s termination was based, at least in part, on pre-appointment reasons, and he was, therefore, entitled to notice and a right to respond as required by in 5 CFR 315.805.

Following that same logic, the Board found a due process violation in Taylor v. Navy, 124 MSPR 111 (2017). Taylor was hired by the Navy as a police officer in February 2016 under a VRA appointment with a two-year trial period. The position required her to possess a firearm.  The Navy terminated her in May 2016 after they learned that a February 2016 protective order stemming from domestic violence allegations prevented her from possessing a firearm.  The Navy did not give notice or provide an opportunity for Taylor to respond.

The AJ found there was no Board jurisdiction in the case. Again, the Board came to a different conclusion. The Board stated:

“Because the termination action was at least partially based on the February 3, 2016, protective order, which arose before her February 8, 2016, appointment, the appellant was entitled to the procedural protections of 5 C.F.R. § 315.805.”

The Board remanded the case and asked the AJ to determine if there had been a harmful error committed.

If confronted with one of these “chicken and egg” type terminations, you can save yourself a lot of grief by giving advance notice and allowing the person to respond before you issue a decision.  There is no mandatory timeframe for notice for this, so it could be very quick.  That way, if the AJ or the Board determines that there are pre-appointment reasons included in your termination, you’ve satisfied the regulatory requirement. Haga@FELTG.com

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