DISMISSED PROBATIONER GETS 8 YEARS BACK PAY & BENEFITS
Pass This On To Unit Members: Can a probationary employee appeal his/her termination? You bet s/he can. In fact, there are more than a dozen different arguments a probationer can raise. Your union rep can fill you in on them. But in the most recent victory for a probationer, the employee established that Social Security managers violated his rights under USERRA or the Uniformed Services Employment and Reemployment Rights Act. As a preference eligible veteran, the employee’s probationary period was only one year as opposed to the normal two years. This office of SSA uses a less demanding performance standard to evaluate the employee’s first year than it does for the second and subsequent years. As the end of the one year approached,…
SSA decided to hold the employee to the more demanding second year performance standard because he was a disabled veteran. Management wanted to avoid firing him after he acquired full appeal rights after one year. It even went so far as to modify the formal performance standard just for this employee to incorporate a part of the tougher second year standard. (So, much for SSA’s “Thank you for your service” program.) That enabled the agency to fire him February 2011.
But, this employee decided to push back and appealed to EEOC and MSPB to overturn the termination. When they did not, he stood firm for himself and veteran employee rights by taking his case to federal court. There, the three judges who ruled unanimously that the law protecting vets had been violated.
The record showed that a manager actually admitted that the employee’s veteran preference status and entitlement to a one-year probationary period was related to management’s decision to terminate the employee when it did. The judges took it from there, writing,…
If employers could discriminate against veterans based on this one-year timeline, then what Congress created as a benefit to veterans for their service—a shortened timeframe for obtaining CSRA protection—could be turned against the veteran by employers, who, like ALJ McGraw, “would prefer not to have to go through the formal process of an MSPB hearing.” (See McGuffin v. SSA, Federal Circuit court)
In other words, USERRA was not passed to make things tougher on vets. Only an idiot–and SSA management–thought that. Management tried to resurrect its case by pointing out that the employee was not performing up to standards that he would have to meet after his first year of employment, but the court even shot that claim down saying the evidence did not support that claim nor was it fair to change the standard just for veterans.
We like this case because it is yet another one showing that probationary employees can overturn their removals and win massive dollar awards. Eight years of back pay at this employee’s salary rate, plus interest, retroactive leave credits and retroactive TSP matching contributions should get this employee over a million dollars.
If you know of a probationary employee being fired, be sure to tell him or her to contact the union which has the expertise to assess the facts against the more than one dozen criteria for reversing a probationer’s removal.