Litigating a New Employee’s Probationary Period

When does a probationary period begin for a federal employee if an employee is re-hired for the same job?

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)

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47