The Fine Print of Firing

HR offices have a lot to learn about appeal rights for employees who get the ax.

Human resource offices have taken a disproportionate hit from government downsizing over the years. Their numbers were once sufficient enough to allow specialization. Now a typical personnelist must address many areas-discipline, performance, retirement, classification and awards-unable to become expert in any one field. Part of the fallout is that many agencies can't figure out the rules regarding employee appeal rights, resulting in an enormous waste of time and money, not to mention disruption of people's lives. Agencies regularly fire people who end up reinstated by the Merit Systems Protection Board with reimbursement of back pay and attorney fees.

Since time immemorial, federal agencies, including the Office of Personnel Management, have believed that imposing a period of probation allows them to quickly and efficiently get rid of anyone they hired, especially from outside the agency. Not necessarily so.

On July 31, 2000, the Navy hired John Stoute as a machine tool operator, a competitive service position with a one-year probationary period that he successfully completed. On Sept. 9, 2002, Stoute was hired for another Navy competitive service job as a machinist, which required another one-year probationary period. Eleven months later, on July 29, 2003, he was fired. Stoute was afforded neither prior notice of the charges nor an opportunity to respond-sacked without due process.

Continuous Service

One year before the Navy fired Stoute, the Court of Appeals for the Federal Circuit ruled in a landmark decision that a competitive service employee had the right to appeal to the Merit Systems Protection Board under one of two circumstances: If the employee was not serving a probation period, or if the employee had completed one year of "current continuous service," excluding temporary appointments of one year or less.

It doesn't take the likes of Pythagoras or Euler to do the math. When he was fired, Stoute had been a federal employee just shy of three years, and none of the service included a short temporary appointment. In hearing his case, the MSPB said, "A competitive service employee serving a probationary period is nevertheless entitled to appeal to the board if he has completed one year of current continuous service other than under a temporary appointment limited to one year or less." The board ruled that Stoute was terminated without due process, reversing his removal and entitling him to reinstatement and back pay.

The appeals court ruling applies even if an employee's previous service was with another agency and in a totally different job. In that 2002 landmark case, Ann McCormick had been a social insurance specialist with the Health and Human Services Department for just over eight years. In 1999, she took a new job with the Air Force as a contract negotiator and was fired six months later. But the appeals court remanded the case to the MSPB, saying the U.S. Code specifically states that federal employees in the competitive service have full appeal rights if they either are not on probation or if they have completed one year of continuous service.

Agency Misfires

The misconceptions of personnel offices don't stop there. For example, just because an employee receives a letter stating that a probationary period is a condition of the employment offer doesn't mean he consents to the forfeiture of his appeal rights.

Also, if a person with more than a year of service "voluntarily" resigns after being told he has no MSPB appeal rights, the resignation is deemed involuntary because the agency misled the employee.

Whether the agency did so in good or bad faith is immaterial. In effect, the employee's decision to resign was made "with blinders on," the board said in a 1998 decision.

Last but not least, the usual 30-day window in which an employee can appeal to the MSPB can be extended indefinitely. If an agency fails to provide proper notice of appeal rights, an employee's late appeal can be excused, even if he resigned or retired.

Excepted Service

The rules for excepted service employees are more cumbersome. To gain appeal rights, they must have completed two years of current continuous service (instead of only one for competitive service people) and cannot count temporary appointments of two years or less (again rather than one) to reach the minimum. The two years must have been in the "same or similar positions." Preference-eligible veterans, such as combat theater or disabled vets, need only one year of continuous service, but it must be in the same or similar positions.

Three years after the eye-opening court decision on employee appeal rights, numerous personnel organizations still don't have a clue. Perhaps the problem is a deficiency in training or just an inability to keep up with law. Nonetheless, how many more times will the MSPB have to hit agencies over the head before the message sinks in?