Firing A Probationary Employee is Easy–If The Employee is Really Probationary

By on March 1, 2006 in Current Events with 0 Comments

The Federal Circuit Court of Appeals has vacated and remanded to the Merit Systems Protection Board a case involving probationary separation of a federal air marshal. In this case (Coradeschi v. Department of Homeland Security, U.S.C.A.F.C. No. 05-3075, February 27, 2006), the question was whether the appellant was properly classified as a probationary employee which was critical to the Board taking jurisdiction of his termination appeal—if he was a probationary employee as the Department argued, then there was no Board jurisdiction.

Mr. Coradeschi had worked for the Immigration and Naturalization Service as an agent. He took a job with Homeland Security as an air marshal, a position requiring new appointees to serve a probationary period after receiving their security clearance.

As an INS agent, he had carried a firearm, been involved in law enforcement, and was authorized to arrest illegal aliens. When he took the air marshal position, both the offer letter and the appointment document stated that he would be required to serve a one-year probationary period. However, he claims he was told verbally that he would not have to serve the probationary period because of his previous position with INS. (Opinion p. 2)

When he was dismissed during his probationary period as an air marshal, he appealed to the MSPB. The Administrative Law Judge dismissed his appeal for lack of jurisdiction, finding that his previous work with INS was not sufficiently similar to permit him to avoid having to serve the new probationary period as an air marshal. In so ruling, the AJ did not hold an evidentiary hearing on this issue. (p. 4)

The appeals court did not like the fact that the Board did not hold an evidentiary hearing in the case to consider whether Coradeschi’s INS position and his air marshal position were sufficiently similar: “From the limited evidence presented without even a hearing, it appears that both positions required Coradeschi to apprehend and subdue criminals, carry and be proficient with a firearm, and investigate criminal activity. Moreover, both positions carried an 1801 occupation code…The AJ and the government place too much emphasis on job description dissimilarities.” (p. 9)

The appeals court held “that Coradeschi made sufficient non-frivolous allegations that he is an employee for purposes of … MSPB jurisdiction.” The court vacated the MSPB decision and remanded to the Board to take action consistent with the opinion of the court. (pp. 10-11)

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.