In Chavies v. Department of the Navy, MSBB Case No. DC-315H-06-0054-I-1, (November 27, 2006), the MSPB continues to strengthen the rights of non-probationary employees who leave jobs in one federal agency for another federal agency. While some “gaining” agencies still try to treat such employees as starting all over again as probationary employees, the MSPB continues to block efforts to do so, instead holding that these employees, once having obtained job protections as non-probationers, continue to retain such rights on the new job.

In this case, Mr. Chavies had already passed his probationary period as a police officer with the Defense Logistics Agency before transferring to the Department of the Navy as a police officer in a higher graded position. Within two months of starting his new job, the Navy notified him of his immediate separation due to his alleged inability to complete certain aspects of training and for being tardy on at least one occasion. The Navy did not afford Mr. Chavies the rights of a non-probationary employee, under 5 USC ? 7511, which include advance notice of a proposed termination and the right to reply to the proposal. Chavies appealed to the MSPB arguing that he was not a probationary employee and, therefore, could not be summarily terminated without the due process protections of a proposal and reply. The Board’s administrative judge agreed that Mr. Chavies was discharged without the required due process and ordered him reinstated with full back pay and benefits.

The agency appealed this decision to the full Board. In its appeal, the agency did not argue with the judge’s conclusion that Mr. Chavies had satisfied the requirements on a non-probationary employee, i.e., he was a competitive service employee who had completed one year of current continuous service at the time of his separation. Rather, the agency claimed that at the time he was hired, Mr. Chavies signed a “Statement of Understanding” (SOU) acknowledging that he was starting his new job as a probationary employee. The agency argued that because Mr. Chavies signed this SOU prior to starting his new position and because he received a promotion in his new position, the SOU constituted a valid “waiver” of Mr. Chavies’ job protection rights as a non-probationary employee. The MSPB rejected this argument.

Noting that Congress has set out these job protections for employees by statute, the Board emphasized that these rights serve to ensure that minimum Constitutional due process is given to tenured (non-probationary) employees before they are terminated. The Board recognized that while under some circumstances an employee can waive his rights, to enforce such a waiver it must be clear that the employee knew of the rights he/she was waiving. In other words, there must be evidence of an “intentional relinquishment or abandonment” of rights in order for a waiver to be effective.

In reviewing the facts of this case, the Board held that there was nothing in the record to indicate that Mr. Chavies knew of the rights he was allegedly waiving at the time he signed the SOU. The SOU itself, which could have expressly mentioned the rights being waived, did not do so. The mere fact that the SOU mentioned that Mr. Chavies was going to serve a new probationary period did not establish that he was not entitled to the protections of 5 USC ? 7511. The Board held that the SOU was simply a notice to Mr. Chavies of the rights the agency believed he had and his acknowledgment that he understood the information in the notice. Consequently, the Board held that the failure to provide Mr. Chavies with advance notice of the proposed removal, and the opportunity to respond, constituted a denial of his statutory and Constitutional right to due process, and the removal therefore could not be sustained.

While Board Member Barbara Sapin agreed that the removal of Mr. Chavies was a denial of his rights, she would have upheld the reversal of his removal on broader grounds. Member Sapin would hold that the rights of federal employees to due process can not be prospectively waived at the time of hire. Reviewing the law of waivers, Member Sapin notes that while waivers of rights concerning events that have actually occurred can be made if knowing and voluntary, the courts have generally not upheld “prospective” waivers, i.e., waivers based on conduct that has not yet occurred. For example, an employee cannot waive his/her rights not to be discriminated against in the future. Member Sapin noted that “routine waivers,” such as what the agency was advocating in this case, are inconsistent with the public’s interest in seeing that tenured civil servants receive the rights that Congress provided them. Finally, member Sapin concluded that if agencies were permitted to require employees to waive their Chapter 75 rights as a condition of employment, the rights under Chapter 75 would be applied in only the rare case, rather than the generally applicable system that Congress designed and intended.

The issue of whether federal agencies can require employees to waive their Chapter 75 rights as a condition of employment, and under what circumstances such waivers will be held valid, will continue to be an area of law all federal employees should watch with great interest.

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.

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