Appeal Rights of Probationers

A U.S. Court of Appeals recently affirmed the MSPB's dismissal of a probationer's appeal which was based on pre-employment conditions for terminating his employment. Ahmed M. Younies v. MSPB, No. 2011-3031 (Fed. Cir. 12/5/11). While a probationary employee does not have the same MSPB appeal rights as non-probationers, there is an exception for a removal based "in whole or part" on pre-probationary conditions. 5 CFR 315.805. Under the cited Office of Personnel Management regulation, the termination procedures require an advance written notice of the proposed adverse action, an opportunity to respond, and a written notice of the decision.

The factual dispute in this case was whether Younies' signature on the application form signed twice, once before employment and once immediately after his employment began, constituted a post-employment reason for his termination.

In this case, Younies failed to disclose to the Department of Labor, where he was selected as a supervisory EEO specialist, that he had a prior conviction, more than five years earlier, for disturbing the peace under California law for which he served one year on probation. However, Younies argued that his conviction had been expunged under California law and did not need to be disclosed according to the application form. The court only reviewed whether Younies' removal required the agency to have provided him with the procedural protections of the OPM regulation when he was terminated during his probationary period. After determining that the first and second signatures constituted separate events, although based on the same underlying facts, the court upheld the MSPB decision, stating that:

"the MSPB has long held that an employer's reliance on a condition that originates in the employee's pre-employment history - and yet continues to exist during the probationary period - does not necessarily trigger the pre-probationary procedural requirements of § 315.805. See, e.g., Van Doneen v. Dep't of Transp., 33 MSPR 420, 423 (1987) holding that an employee's dismissal based on his failure to maintain security clearance was not a pre-probationary reason even though the security clearance was denied due to the employee's pre-employment history), aff'd, 837 F.2d 1098 (Fed. Cir. 1987) (unpublished table decision)"

Younies's co-counsel was Edward H. Passman, a founding principal of Passman & Kaplan, P.C., who also represented Mr. Von Doneen. With the court's precedential decision in the instant case, both the MSPB and the Federal Circuit have circumscribed a probationary employee's right to challenge his termination before the MSPB. The only other remaining direct recourse to the MSPB is for discrimination on the basis of partisan political activity or marital status. There is also recourse to the discrimination complaint procedure and for alleging a prohibited personnel practice to the Office of Special Counsel.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com/ .