In Lewis v Federal Bureau of Prisons (CAFC No. 2023-2015, decided 3/4/2024, The following facts are contained in the court opinion.
Ms. Lewis was serving as a probationary correctional officer at the Federal Correctional Complex in Butner, North Carolina. Nine days before her one-year probationary period was to end, the Bureau of Prisons placed her on paid administrative leave subject to recall at any time. Two days before her probation ended, the agency issued a notice of removal of Ms Lewis during her probationary period. The reason given for the agency’s decision was “Appearance of an Inappropriate Relationship with an Inmate,” citing two events where she allowed an inmate with her into a dark officers’ station. The events occurred about a month prior to the written termination notice. (Opinion, pp. 2-3)
Having written and signed the notice, the agency then tried mightily to serve it on Ms. Lewis. They ordered her to report for duty the day the letter was ready, but she called in sick. As it turned out, she walked into a clinic the same afternoon she was ordered to report the next day. The clinic issued a note saying Ms. Lewis should be excused from work for a few days and would not be able to report until, coincidentally, the day after her probationary period expired. (p. 3)
After Lewis failed to report as directed, the agency immediately mailed a copy of the letter by both postal service certified mail and overnight FedEx. The latter reported delivery of the package, confirmed by a signature of receipt, the night before Lewis’ probationary period expired. Ms. Lewis later contended that she never received the FedEx package and that the signature on the receipt was not hers. (P. 4)
The postal service package receipt indicates delivery was attempted the day her probationary period expired, but attempts were unsuccessful. Meanwhile, an agency human resources manager called Lewis on the day her probationary period was to end, the call was not answered, but she left a voicemail informing Lewis of the removal notice. Lewis claimed later that she did not hear the voicemail until after her tour of duty ended that day. She also testified that she did not receive any of the written termination notices until after the day her probationary period expired. The HR manager testified later that she left the voice mail message an hour before the end of tour. (P. 4)
The agency terminated Ms. Lewis during probation and her AFGE union Local 408 represented her on appeal before Arbitrator Eberenz, arguing that Lewis had been removed without due process, contending that probationary termination is not effective until the employee actually receives the written notice. Having not timely notified Ms. Lewis of the termination, so the argument goes, she is entitled to full-up civil service adverse action protections.
So, did these facts convince the arbitrator on appeal that the agency failed to properly terminate Ms. Lewis during her probationary period? The arbitrator held a hearing, Lewis was represented by a union attorney, witnesses were called and 25 exhibits were introduced. The arbitrator decided that Lewis was terminated during probation, that actually receiving the written notice was not required, and that termination was not grievable. Lewis petitioned the appeals court to review that decision. Her main contention was that the agency was required to get the written notice to her prior to expiration of the probationary period, it failed to do so, and the arbitrator erred in determining that doing so was not required. (P 6)
The court has now affirmed the arbitration decision. Citing Shaw v. United States (citations omitted), the court opines: “…the regulation does not require that the employee actually receive the notice before the end of the probationary period, as Ms. Lewis contends. Rather, a termination is effective if the agency does ‘all that could be reasonably expected under the circumstances’ to timely deliver the notice.” (p. 6)
The court went on to find based on the record in this case “no reasonable arbitrator could find that BOP’s efforts were not reasonable under the circumstances and… Ms. Lewis was effectively terminated as a probationary-period employee.” (Pp. 7-8)
