Federal Manager's Daily Report

A federal court has said that that the timing of an employee’s removal – just four days before he reached the end of his probationary period and just shy of gaining full appeal rights – was a consideration in its decision to overturn the agency’s action.

The court found that the Social Security Administration failed to present the needed evidence to support its assertion that the removal was justified on performance grounds, saying for example that it held him to a production standard during his probationary period that only applied after such a period had been completed. Also, “supervisors delayed providing him with adequate training and disregarded the positive results of such training as well as ignored positive feedback” on his work, according to an MSPB summary of the ruling.

It said the court further looked at the timing of the action. The position was in the excepted service, where a two-year probationary period typically applies—the exception being that it is one year for veterans, such as the employee in this case.

The MSPB said the court held that the issue is not just whether his preference-eligible veteran status played a substantial or motivating factor in his termination, “but also whether it was a substantial or motivating factor in the agency’s timing of his termination.”

The court found that it was such a factor, recounting that the agency took the action soon after becoming aware of his veterans preference and thus violated his preference rights.

Said the MSPB, “In sum, the evidence demonstrated that [the employee] was not performing poorly, let alone so poorly as to justify the agency’s rush to remove him 4 days before the end of his probationary period. Thus, the evidence pointed to only one reasonable motive—that the agency rushed to terminate [him] solely to prevent him from obtaining” full appeal rights.

More on the probationary period for federal employees at ask.FEDweek.com