Separating a Probationary Employee With Hours to Spare

A Telecommunication Specialist, separated by the Bureau of Customs and Border Protection (part of the Department of Homeland Security) literally on the last day of his probationary period, struck out with his challenge that the agency was required to use full adverse action procedures because it had waited too long. (Honea v. Merit Systems Protection Board (CAFC No. 2012-3199 (nonprecedential), 4/8/13))

Mr. Honea was hired by Customs on January 4, 2010 subject to satisfactory completion of a one-year probationary period. On the very last day of his probationary period, on January 3, 2011, he arrived for work at his usual start time of six a.m. The boss handed Honea a letter notifying him that he would be terminated during probation due to lack of technical skills and the fact that Honea had unauthorized software on his work computer. Honea signed a receipt for the notice of separation. The notice made his separation effective that same day without specifying a time. Agency officials walked Honea through out-processing and he was out the door by 9 a.m. Although his regular shift did not end until 2:30 p.m., Honea was paid for the entire day. (Opinion pp. 1-3)

An Administrative Judge for the Merit Systems Protection Board held that in the absence of a specified effective time for Honea’s probationary separation, it took effect at midnight on January 3, 20ll. This meant, per the AJ’s logic, that Honea had in fact completed his probationary period before the effective date of his termination.  Continuing this logic, the AJ concluded that the agency was required to provide full-blown adverse action rights to Honea, which it had not done. Therefore he ordered up reinstatement. (pp. 3-4)

The agency asked the full MSPB to review the AJ’s decision. That resulted in an order vacating the AJ’s decision and dismissal of Honea’s appeal for lack of jurisdiction. The Board disagreed with the AJ’s logic that the separation letter issued on the last day of the probationary period was required to specify a time. The full Board held “that other evidence could be used to establish the time of termination.” (p. 4) And, in this case the facts showed clearly that Honea had been separated and was out the door before the end of his tour of duty that last day.

The appeals court has sided with the full MSPB on this one, saying “It stands to reason that if an employee is terminated before he has completed his probationary period, he has been terminated during his probationary period. That is what occurred here.” (p. 6)

What the agency, the full MSPB and the court had to work around was pretty specific language in the Office of Personnel Management Guide to Processing Personnel Actions. The Guide says that all separations are effective at midnight of the end of the day of separation unless an earlier time is specified on the separation form. The Guide provides that a probationary termination “must be effective on a day prior to the last day of the probationary period, or at a specific time of day before the end of the employee’s work day on the last day of the probationary period.” (p. 6) Oops!

The court sidesteps this problem by holding that while the agency may not have complied with the Guide, “those regulations do not mandate a finding of Board jurisdiction due to a failure to adhere to [it..] (p. 6) Or, expanding further, the court concludes the Guide “is only a relevant consideration in evaluating personnel actions, not a conclusive one.” (p. 6)

Because the agency was able to show the definitive actions it took in walking Honea out the door before the end of his tour of duty on the very last day of his probationary period, the court was willing to side with the Board in finding that he had been properly terminated in time.

One cannot help but wonder if the agency realized it was cutting this one dangerously close. The lesson learned from this case is to keep an eye on the deadline and act at least a day or two ahead of it whenever possible.

Honea v. Merit Systems Protection Board

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

Tags:

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.

Top