Probationary Termination and Office Politics

This federal employee went from getting good ratings to being terminated during his probationary period after he became involved in internal office politics. But, despite being a probationary employee, he will get his day in court after filing a complaint that he was fired for engaging in protected EEO activity.

A Museum Specialist with the Smithsonian Institution who was terminated during probation recently survived a government motion for summary judgment on the retaliatory discharge count of his complaint against the agency. (Cross v. Small, D.D.C. Civil Action No. 04-1253 (RMC), 9/29/06)

The government tried to have all three counts of the complaint thrown out, but Judge Collyer did not agree and kept the retaliatory discharge complaint alive. The following summary is taken from the court’s Memorandum Opinion.

Cross was hired into the National Air & Space Museum part of the agency and worked at the Garber Preservation, Restoration, and Storage Facility in Suitland, MD. About 2 weeks before his one-year probation ended, he was terminated for use of excessive leave and for being a disruptive influence in the workforce. Cross-claimed that he was fired for engaging in protected EEO activity and he brought this suit against the agency head. (Opinion p. 1)

Cross apparently performed very well, receiving an outstanding performance rating, a within-grade increase, and a recommendation that he be retained beyond his probationary period. About two months later, things had taken a u-turn in Cross’s fortunes and he was terminated. (pp. 2-3)

Judge Collyer’s opinion underscores this turn of events: “What changed, exactly, between Mr. Cross’s favorable reviews….and his termination…is the subject of some disagreement…[B]y reviewing those facts about which the parties do agree and the numerous documents now part of the record, the Court is able to provide an outline that places the controversy in context.” (p. 3)

Without going into the detailed facts, suffice it to say that Mr. Cross got caught up in some explosive office politics. (The court decision is linked so that those readers who want all the back-and-forth on the facts can satisfy their interest.)

The work unit became a divided camp over what many believed (including Cross) was poor and unacceptable supervisory behavior. Among other complaints, there were allegations of sexual harassment on the part of the supervisor against a female worker. Cross served as a sort-of informal spokesman for the “get rid of this bad supervisor” faction and sent numerous messages to the agency Ombudsman. Various Smithsonian managers met with the various work unit factions in an effort to resolve the situation.

Eventually, management reorganized the work unit and put two new direct line supervisors in the organization. About the same time, the decision was made to terminate Cross. (p. 14)

Cross’s complaint had three counts. Only one has now survived the Government’s Motion for Summary Judgment, but that is enough to get his day in court. Mr. Cross will now have a chance to present facts and arguments in an effort to persuade a jury that his discharge was in retaliation of his opposition to sex-based discrimination. In her analysis, Judge Collyer found that Cross had established a prima facie case, and that the government had put forth a “legitimate, nonretaliatory reason for discharging Mr. Cross.” She noted the burden now shifts back to Cross to prove that this apparently legitimate reason was mere pretext for retaliation. (p. 23)

Judge Collyer summarizes her ruling, “As the record now stands, although there is some evidence of misconduct, there is also some evidence that the Government has retreated from its original, perhaps primary, reason for terminating Mr. Cross, poor attendance…..In short, the facts with regard to Mr. Cross’s behavior and his employer’s motivations for terminating him are dramatically in dispute, and a jury…must sort them out.” (p. 24)

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.