Kicked out of SES, Resigned As a GS-15, Lost in Court

A former SES employee who was reassigned to a GS-15 job resigned and then argued he was constructively removed because of sex discrimination and intolerable working conditions. He went to federal court to argue his case but did not make a convincing case.

A Senior Executive Service (SES) employee of the Department of Health and Human Services was removed from his SES position during his probationary period and reassigned to a GS-15 position. He resigned several months later and then filed an appeal with the Merit Systems Protection Board arguing that he was not properly terminated from the SES and that his resignation amounted to a constructive removal.

The MSPB disagreed, finding that it had no jurisdiction over the claims. The former employee took his case to the Federal Circuit Court of Appeals. In Colodney v. Merit Systems Protection Board and Department of Health and Human Services, C.A.F.C. No. 2007-3013 (nonprecedential), 7/17/07, the appeals court has sided with the MSPB.

Colodney’s SES position was Director, Office of HIPAA Standards (i.e. the Office of Health Insurance Portability and Accounting Act Standards). The SES appointment required that he serve a one-year probation. After various staff members complained about his “inappropriate comments,” Colodney was removed from his position and put into a GS-15 Health Insurance Specialist position. (Opinion p. 2)

Colodney held his GS-15 position for almost 5 months, at which point he resigned. He then filed an EEO complaint alleging he was constructively removed because of sex discrimination. The agency processed the complaint and eventually concluded there was no discrimination and no intolerable work conditions that forced Colodney to resign. (p. 2)

Colodney took his case to the MSPB. However, the Administrative Judge, backed up by the full Board, found that the Board had no jurisdiction. Specifically, there is no right to appeal to the Board over removal of an SES employee during probation. Further, Colodney did not meet his burden of showing “intolerable working conditions” that left him no alternative but resigning his GS-15 position. (p. 2)

In affirming the Board, the appeals court noted that Colodney had held the GS-15 position for almost 5 months, “so he was able to work in the …position for a number of months.” Under the circumstances the Court ruled that the Board was correct to find it had no jurisdiction. As the court states, “Mere allegations of an unpleasant work environment do not rise to the level of forcing an employee to resign.” (p. 4)

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.