Litigating a New Employee's Probationary Period

Wednesday, September 8, 2004

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A probationary period is the final phase of the hiring process for a job in the federal government. Within this period, a new employee can be fired relatively quickly and easily. That is, the normal avenues of appeal to various third parties contesting the agencies decision to get rid of an employee do not usually apply.

Not surprisingly, there is some dispute as to when a person is a probationary employee.

The issue can get complex. Here is a case in point.

Ronda Shelton worked for the US Air Force. She was employed as a production controller at Tinker Air Force Base from June 1981 until May 1988. In November 2001, she was rehired for the same position at the same facility. At the time of her appointment, she was notified she was going to be in a probationary period and she signed a document acknowledging that she was subject to a probationary period.

The Air Force fired her on October 2, 2002, citing her failure to qualify for the job during the probationary period due to issues of her "general character." This would normally be sufficient to fire a new employee.

But Shelton disagreed. She filed an appeal with the Merit Systems Protection Board (MSPB). The MSPB decided she did not have the right to appeal her dismissal. It reasoned that she was a probationary employee and was not a federal employee with a right of appeal during that period. Shelton disagreed and soon filed an appeal to the Federal Circuit Court of Appeals.

Shelton argued that she was not a new employee. Since she had initially been hired in 1981, she contended she could not be subject to a new probationary period, despite the 13-year gap in her federal career.

In a brief decision, the court decided “… the agency did not exceed its authority in imposing a probationary period after a thirteen-year gap in service. Ms. Shelton was fully informed, and accepted the one-year probationary period. Imposition of a reasonable condition to accommodate a special circumstance is not an illegal employment action. A new probationary period was not an unreasonable condition after thirteen years away from the job….”

Shelton v. Dept. of Air Force, 04-3136 (September 1, 2004)

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Readers' Comments

You have to be kidding!! After a 13 year gap the employee did not want to have a probationary period! Any time a person starts a new job even if for the same agency they should expect a probationary period. This is one time I agree with the courts! The employer needs to have some discretion in h...
Posted: September 8, 2004 11:34 AM
The thing I find odd is how a personnel specialist automatically decides the employer is wrong to insist on a probationary period while the employee is learning the work. For some occupations the learning curve is lengthy, the ability to put the knowledge to use correctly must be demonstrated befor...
Posted: September 8, 2004 9:37 AM
Suggested reading: The MSPB has jurisdiction when an employee meets the definition of "employee" as provided by 5 USC 7511 (1)(a) or (c). If a competitive service employee [(1)(a)] is still serving a probationary or trial period, she may have appeal rights if she has completed one year of current c...
Posted: September 8, 2004 9:13 AM

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Litigating a New Employee's Probationary Period

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