What do you do for the probationary employee who calls you from home not only to tell that he resigned last week, but that he wants the union to get his job back? Extend your sympathies? Wish him luck? Tell him that he should have checked with the union before he made that decision?

It is very tough to do anything for that employee, but the situation is not hopeless. As pointed out in “16 Ways That Probationers Can Appeal Terminations,” these employees have more than a dozen options to challenge a dismissal.  For this particular employee the best option might be to argue that the employee’s resignation was based on agency coercion, duress, misinformation or deception.  In short, although he resigned, argue it was an involuntary resignation.

While MSPB has limited powers to review a probationer’s formal removal for performance or conduct, the courts have said, “The MSPB possesses jurisdiction over an appeal filed by an employee who has resigned or retired if … his or her resignation or retirement was involuntary and thus tantamount to forced removal.” Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1340-41 (Fed.Cir.2001) (citations omitted). In other words, “it is hornbook law … that an involuntary resignation constitutes an adverse action by the agency.” Gratehouse v. United States, 206 Ct.Cl. 288, 512 F.2d 1104, 1108 (1975).” (See Garcia, 2006)   The MSPB itself has put it this way more than once, “A decision made ‘with blinders on,’ based on misinformation or a lack of information, cannot be binding as a matter of fundamental fairness and due process.” (Jones, 2012)

While coercion, duress, misinformation and deception each require slightly different proof, an allegation of misinformation may be the easiest to prove.  The union or employee merely must show, (1) that the agency made misleading statements; and (2) that the appellant reasonably relied on the misinformation to his detriment.  (Aldridge, 2009)  Here are some other helpful MSPB and judicial precedents to use in these cases.

  • The Agency Has an Obligation–  “An agency is required to provide accurate information to permit an employee to make an informed, and thus voluntary, decision regarding resignation or retirement.” (SeeAldridge, 2009)
  • The Agency’s Failure to Convey Information– “a finding of involuntary  retirement, based on the agency’s non-conveyance of information which it already had, and policies which it had already formulated, by the relevant date. (See Covington, 1984) When an agency knows an appellant is relying on misinformation, the agency has an obligation to correct it. (See Willis, 2003)
  • The Agency’s Intent–  “There is no requirement that the misinformation be knowingly deceptive, intentionally misleading.” Covington750 F.2d 937; Aldridge, 111 M.S.P.R. 670. The misleading information can be negligently or even innocently provided; if the employee materially relies on the misinformation to his detriment, his retirement is considered involuntary.
  • The Reasonable Person Standard– the standard is not subjective, but, rather, objective: whether “a reasonable person would have been misled by the agency’s statements.” (See Scharf, 1983)  It is “the employee shows that a reasonable person would have been misled by the agency’s statements.”

Consequently, when talking with the newly resigned probationer listen for evidence that he—

  • Told management he was resigning because he was being discriminated against and understood that he had no right to appeal or challenge that,
  • Told management that he was resigning because of all the extra work he was required to do without overtime pay and no recourse,
  • Understood that if his annual appraisal was only Minimally Successful he had to be terminated and wanted to avoid a record of termination.
  • Was told that a final decision had been made by top management to terminate him–when it had not,
  • Was told that he would be better off resigning because his pending termination would prohibit him from ever working for the government again,
  • Was told he was still in his probationary period when he was not.

You may hear this from the former employee, his manager, or even a witness.  Another good place to look is at his formal resignation statement, e-mail messages to management or even phone messages he left.  In any event, if you want to help the employee, check out those sources of information before you make a final decision that he has no chance. regularly addresses the rights of probationers because we believe managers often mislead them into believing there is nothing they can do to fight back during a probationary period.  Check out the topic area PROBATION PERIOD.

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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