STEWARD ALERT!     Managers constantly tell probationary employees they have no appeal rights if terminated, but that is just not true. is working on a longer article about probationary employee appeal rights, but here is a glimpse of what’s possible.

When a probationary IRS accountant was fired for poor performance, she filed an appeal with EEOC alleging that she was the victim of disparate treatment discrimination based on race (black) and national origin (Nigerian).  EEOC allows any probationer to appeal who can show that another similarly-situated employee in a different protected class (race, gender, age, national origin) was not fired despite making the same mistakes.

The first thing EEOC requires is that the employee show he was terminated under circumstances that suggest an inference of discrimination.  This employee met that criterion by showing that her work problems were no different than those of other race and national origins, yet they were not fired.  In fact, she showed that while she was placed under “maximum supervision” for her errors, those others were only considered to need “special treatment.”  The EEOC judge found the former label was intended to put the employee in a less favorable light.

The facts of the case also showed that while the black employee was fired for her errors, a white employee with the same errors was rated acceptable.  On top of that the employee showed the EEOC judge that while she was criticized for lacking the ability to work independently, most of the trainees were regularly seeking help without being criticized for that.  Finally, the employee showed that two other black employees were treated the same way as she was while the majority, but not everyone, retained was of a different race. (Stated differently, an appeal can still succeed if other black employees are retained.)

The EEO Commission looked at this evidence and found management illegally discriminated against the employee.  The Commission noted that “different treatment afforded to just a single individual [of a different protected group] is sufficient to establish a prima facie case of discrimination.”  Although management tried to distinguish the terminated employee from others who were retained by arguing that her errors were different or more serious, it could not overcome the facts in the investigatory file or the statement of the two other black employees and two African-American trainers of the employee’s probationary class who testified that there was a difference in treatment.  (Reading this case makes you wonder who in the management chain of command orchestrated all this if the two trainers were on the employee’s side.)

Not only did the employee get her job back with retroactive pay, but the EEOC also gave her an extra $50,000 for the emotional stress the termination caused her. 

Most probationary employees will not know they can file this kind of EEO appeal or if they do know they will be too intimidated by the situation to fight back.  That is where the union comes in.  It needs to be notified of any probationer’s termination or pending resignation and given the chance to review the facts with the employee before the probationer is tossed out the door.

For their part, unions have to educate their representatives about the appeal options that probationers do have and will help them with that soon.  Watch for an article covering all the probationer’s options.

The case discussed above is known as Oni v. Department of Treasury, IRS, (EEOC OFO 10/11/11)

(Pass this article on to other union representatives who might need it and to any probationers who think that there is nothing the union can do for them.)

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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3 Responses to

  1. CancerFromIRS says:

    Unfortunately IRS employees who are put on fraudulent 2nd probations at IRS are out of luck if they are not minorities (our gov will pay the huge fees at EEO, but only if you are one of the favored minorities). Others – career tenured employees are denied all due process rights, even after having nothing but excellent evaluations for their entire career of close to 20 years. They are denied oral testimony, denied the opportunity to show that the IRS didn’t even identity the correct employee for firing, with narrative of the wrong agent’s cases in their file, backdated memos to the wrong agent, etc.. etc…EEO upholds these fraudulent probations and causes the victim way more pain by forcing them to MSPB, where they waste their life savings and are again denied their due process rights. A terrorist has it much better in the US, with a free lawyer all paid for by us taxpayers.

  2. Shelley Caspary says:

    Very good article

  3. Maine Davis says:

    This article was very interesting, management/personnel here at my agency ususally wait until the last minute to notify the union of the employee’s pending termination. We usually do not have time to submit an appeal, so how does the union get enought notice to file an appeal on the employee’s behalf.

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