We love to pass on stories of probationers winning reinstatement and back pay because too many feds believe that there is nothing unions can do for probationary employees.  Here are the two latest examples. The first employee is going to be reinstated retroactive to December 2007 along with back pay for all that time and compensatory damages. That would include any career ladder promotions, step increases and time towards retirement among other benefits. And here is why she won.

After the employee took three days of sick leave during her first seven weeks of employment, her manager gave her a letter of warning and required she provide medical documentation for any future sick leave request.  About a month later, she called in to get advance supervisory approval for sick leave on November 29, December 2, and December 3, and provided the medical documentation when she returned to work.  But when she told her supervisor she had degenerative disk disease, he terminated her three days later.  She responded by claiming disability discrimination.

When EEOC asked the agency to respond to the employee’s accusations, management said she was fired for excessive sick leave. But the Commission pointed out that her manager had approved the leave in advance and she provided the requested documentation as required.  Moreover, it went on to point out that the agency had an obligation once it knew the employee had a physical disability to try to provide a reasonable accommodation; indeed, its own agency regulations provided a procedure for that process which the manager ignored.  That is all the Commission needed to overturn the termination. For more details check out Complainant, v. Eric H. Holder, Jr., Attorney General, DoJ (FBP) EEOC No. 0720100006 (2021)

The second case did not involve as many years of back pay—just six years of reinstatement and back pay plus all due promotions, raises and benefits. In this case, a newly hired deaf employee requested an interpreter for lengthy conversations and training programs which was rarely provided.  Then, six months after being hired, his manager fired him for refusing to follow orders and performing some duties unsupervised.

But the evidence from coworkers showed that his two supervisors lacked any ability to supervise a deaf employee.  For example, there was testimony the supervisors tried to use hand signals commonly used with dogs to communicate with the employee, pulled the employee around by the lab coat when other communication efforts failed, got loud with the employee when the first statement was not heard, and threw objects against the wall to try to get the employee’s attention.

When EEOC asked the supervisors to explain why interpreter services were not provided more often, the agency’s own Interpreter Services staff testified how it could have been done easily. Check out this case for more details: Lenny W., v. Xavier Becerra, Secretary, DHHS (NIH), EEOC No. 0120170311 (2021).

Unions would be wise to let union members know about case like this and other ways that probationary employees can be successfully represented by unions. Educating them about all the rights they have in their first few days of employment is a favor most of them will respond to by joining up.  Check out this FEDSMILL post for other ways that unions can file appeals on behalf or probationers: 16 WAYS PROBATIONERS CAN APPEAL TERMINATIONS.  If you use our search block to focus on the word “probation” you will find over 30 FEDSMILL posts about how probationers successfully challenged agencies and even a suggested letter the union local could send to newly hired employees to make them aware of all the help the union can be to them immediately.



About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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