“PROBATIONER” IN LINE FOR 8 YEARS BACK PAY
Why did we put the word probationer in quotes? Because MSPB just issued a decision highlighting that there are times when the agency might consider someone a probationer, but s/he is not. In this case, although the Dep’t. of Interior did not know that, Brandy Branstetter did—and he is now in line for eight years of back pay, health insurance coverage, promotions, step increases, seniority, retirement credit, etc. Here is how Brandy did what most agencies lead their new employees to believe is impossible, i.e., overturn the termination of a probationer.
Brandy’s Federal service preceding his competitive-service appointment as a Utility Systems Operator (USO) consisted of seven temporary appointments. The last six were alternating appointments to the position of Maintenance Worker, served from spring to fall, and Laborer, served from fall to spring. The final temporary Laborer appointment was from October 19 to November 29, 2014. On November 30, 2014, he was appointed to the position of USO, without a break in service, subject to 1-year probation. Id. at 49-50. But on November 19, 2015, the agency separated the appellant from the position of USO during his probationary period.
Brandy appealed to MSPB alleging that he was not a probationer but had full adverse action protection. The Board stated that to appeal an adverse action, such as a removal, an individual appointed to the competitive service generally is required to complete a 1-year probationary period. However, an employee who has not served a full year under his appointment can acquire appeal rights by tacking his prior Federal service onto his probationary service, provided that his prior service was completed with no more than one break in service of 30 days or less, and was in the same agency and line of work. (See 5 C.F.R. § 315.802(b)). The positions are in the same line of work if they involve related or comparable work that requires the same or similar skills. In Brandy’s case, the MSBP found, “The administrative judge did not address these allegations and found that the appellant’s prior Federal service was not in the same line of work as his probationary appointment because the USO and Laborer positions had different job descriptions. In doing so, she erred.”
So, when a probationer approaches you to ask if there is anything the union can do to overturn his proposed removal, don’t believe the agency-driven rumor that it is impossible. In fact, FEDSMILL.com has listed over a dozen ways it can be done in a 2012 post entitled, “Ways Probationers Can Appeal Terminations.” Beyond that, just click into the word Probation Period in the right-side index on our home page for even more information. You can find the details of Mr. Branstetter’s case here: BRANDY BRANSTETTER, v. DEPARTMENT OF THE INTERIOR, Doc. No. DE-315H-16-0125-I-1 (April 27, 2022).
The Board sent the case back to the regional office to finalize the details.