Federal employees separated during their probationary period have very limited appeal rights—supposedly.
This recent court decision shows how various multiple appeal routes were used to get more than one “day in court” for a probationer who was fired by OSHA for insubordination and “failure to exercise good judgment while conducting agency business.” (Gomez v. Department of Labor, C.A.F.C. No. 2006-3194 (non precedent), 8/14/06) The facts are taken from the court’s decision.
When he was separated in 2002, Gomez first went to the Merit Systems Protection Board and raised the argument that his termination was due to his being Hispanic and a Methodist. The Board dismissed for lack of jurisdiction since Gomez was a probationary employee.
At the same time, he raised the same allegations through the Department of Labor administrative EEO complaint procedure. Eventually, the agency found that there had been no discrimination.
Gomez appealed that finding to the Equal Employment Opportunity Commission, but that appeal was rejected for reasons not spelled out in the court’s decision.
Gomez then tried his hand at the Office of Special Counsel where he brought up for the first time that he was fired in retaliation for whistleblowing. (Opinion p. 2)
The whistleblowing allegation gained Gomez’ efforts to challenge his termination new life in that it led to a hearing before an administrative judge. The point of the hearing was to determine whether the agency’s action was in fact retaliation for protected whistleblowing. Apparently Gomez’ supervisor had ordered him not to participate in an interview being conducted by a female co-worker to avoid a situation where Gomez might end up being accused of sexual harassment. (It would seem that Gomez had made sexually suggestive remarks to women in the work place on two previous occasions, which is why the supervisor gave the instruction.) (Opinion pp. 2-3)
Gomez ignored the supervisor’s directive and participated in the interview anyway. He apparently then complained about the behavior of the female co-worker who conducted the interview in that she had “acted improperly toward the witness in the course of the interview.” Gomez argued that his complaint was a protected disclosure and this is what led to his termination during probation. (p. 3)
Unfortunately for Gomez, the AJ concluded “the agency would have terminated this probationary employee, even in the absence of this disclosure.” (p. 3)
He fared no better with the appeals court. The court stated, “Although Mr. Gomez argues at length about the facts of the case….the standard of review on an appeal from factual findings of the Board is a difficult one for an appellant to overcome….’such evaluations are “virtually unreviewable.” (p. 4) The court sustained the Board’s ruling—four years after Gomez’s probationary separation. (p. 5)