Federal Circuit: Hasty Probationary Period Removal Motivated by Preference-Eligible Status
The Social Security Administration removed a preference-eligible veteran from his position as an attorney advisor near the end of his one-year probationary period due to allegedly poor performance. The employee filed for corrective action with the Merit Systems Protection Board, alleging that the agency violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) when it removed him because of his preference-eligible status. An MSPB administrative judge denied the request for corrective action, and the employee appealed to the Federal Circuit. On November 7, 2019, the U.S. Court of Appeals for the Federal Circuit reversed the MSPB decision, and remanded the case to the MSPB for a determination of the appropriate corrective action.
The employee argued that his preference-eligible veteran status was a substantial or motivating factor in his termination. Preference-eligible veterans like the employee in this case have a shortened probationary period before gaining access to Civil Service Reform Act benefits like appeal rights. He introduced testimony at hearing that showed that the agency, after becoming aware of his preference-eligible veteran status, rushed to terminate him prior to the conclusion of his one-year probationary period. The appeals court found that the “proper inquiry” on appeal is not only whether an employee’s preference-eligible status is a substantial or motivating factor in the termination itself, but also whether it is a substantial or motivating factor in the timing of the termination.
The appeals court held that the one-year timeline for obtaining appeal rights was afforded to veterans because of their service, and was therefore inextricably linked to their service. Therefore, the appeals court deduced, if an agency treats a veteran differently because of the one-year timeline compared to non-veterans with a two-year timeline, it is discriminatory. The appeals court observed how a one-year timeline could transform from a benefit bestowed by Congress to a potential harm to veterans, with agencies eager to terminate employees early to avoid the inconvenience and burden of defending the decision during an appeal. The dynamic described here played out in this case as well, with evidence showing that the agency was considering terminating two attorney advisors for what it deemed lackluster performance, but chose not to make an immediate decision on the non-veteran employee because her probationary period was two years instead of one. That employee was ultimately not terminated, and instead promoted.
The appeals court also found that substantial evidence did not support that the agency terminated the employee based on valid reasons. It found that contrary to the agency’s allegations and the Board’s finding, the documentary evidence showed that the employee was performing well. The appeals court held that this documentary evidence overcame the testimony at hearing from the employee’s supervisors, who largely testified that they would have terminated any employee performing as poorly as they alleged the employee in this case performed. While the Board found the supervisors’ testimony to be credible, the appeals court held that the Board erred by using credibility determinations to insulate its findings from the objective documentary evidence that contradicted the witnesses’ stories. In this case, the record reflected that the employee’s supervisors did not pursue training opportunities in favor of early attempts to terminate the employee, and then completely overlooked the significant improvement in the employee’s performance following an eventual training assistance plan. The appeals court found that the employee “was not performing poorly, let alone so poorly to justify the agency’s rush to remove him four days before his one-year mark.” Instead, the appeals court found that there was only one reasonable motive for the employee’s termination: “SSA rushed to terminate [the employee] four days before he completed his first year at the agency solely to prevent him from obtaining CSRA benefits.”
For the above stated reasons, the United States Court of Appeals for the Federal Circuit reversed the MSPB administrative judge decision, and remanded the case back to the administrative judge for a determination of an appropriate remedy.
Read the full case: McGuffin v. Social Security Administration.
This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.