An administrative judge for the Merit Systems Protection Board issued a ruling Thursday that gives employees who were fired shortly after their probationary period ended some hope that they will be able to keep their jobs.
Denyzio Laboy was a federal employee in the equal opportunity employment office at the Cybersecurity and Infrastructure Security Agency who was fired one day after becoming a tenured employee.
The judge found CISA’s actions violated Laboy’s right to due process, including receiving at least 30 days advance notice and a reasonable time of not less than seven days to respond to the decision.
“An agency’s failure to provide a tenured public employee with an opportunity to present a response, either in person or in writing, to an appealable agency action that deprives him of his property right in his employment, constitutes an abridgment of his constitutional right to minimum due process of law,” Steven Giballa, an administrative judge, wrote in his ruling.
Giballa said CISA was using the regulations under 5 C.F.R. § 11.5, which implemented President Donald Trump’s April executive order and the Office of Personnel Management’s regulatory change in June requiring agencies to review and actively sign off on probationary workers’ continued employment before they can be moved out of a probationary period, in terminating Laboy’s employment.
But the judge said CISA circumvented the statutory protections provided by 5 U.S.C. §§ 7511-7513, and when a regulation “conflicts with the statute, the provisions of a statute will prevail.”
Chloe Barrett, an associate attorney with Gilbert Employment Law, which represented Laboy before MSPB, said this was a small but important win for many employees who remained in their position after their probationary period ended and were still fired by their agency.
“Because CISA terminated him on Nov. 6 and his probationary employee status ended Nov. 5, he was a tenured employee and CISA should have to give him minimum due process,” Barrett said. “Agencies are relying on this rule to forget to terminate employees during their probationary period, and then they are getting past their end dates and becoming a tenured employee. But agencies are saying under this rule set up by the EO, employees are automatically terminated unless you get a letter saying they certify the employees’ employment. The judge says, in the case, CISA terminated Laboy’s employment too late.”
An appeal is likely
The judge ruled that CISA had to reinstate Laboy with back pay to November.
CISA Director of Public Affairs Marci McCarthy said in a statement to Federal News Network that “CISA does not comment on ongoing personnel matters.”
Barrett said she expects CISA to appeal to the MSPB board.
“To me it’s a clear-cut error. I’m not sure the board will see the merit in it,” she said. “All agencies who are relying on this rule to fire probationary employees really need to look at this ruling and how they are applying the regulations more closely.”
CISA has until March 5 to file its request for review by the full MSPB board.
Barrett said her law firm is working on several other similar cases where employees moved from probationary to tenured positions and then were fired anyways using the new regulations.
“We have a client who continued to go to work for 2-3 weeks after the end of her trial period and they decided to terminate her. The agency didn’t pay her for time after the trial period. The trial period ended on the 17th of the month, but they terminated on the 9th of the next month,” she said.
Lawmakers push OPM to withdraw rule
The Trump administration is initiating another change for probationary employees, moving their appeal rights from MSPB to OPM’s Merit System Accountability and Compliance (MSAC).
The comment period for the proposed rule ended Jan. 29 and the Office of Management and Budget says it received 326 comments.
A dozen Democrat Senators wrote to OPM Director Scott Kupor yesterday urging him to withdraw the proposed rule.
“MSAC lacks the balanced governing board of the MSPB, reports directly to the OPM director, and has no demonstrated capacity to handle a surge in these types of appeals. Through MSPB review, there is a prudent separation between the agency setting personnel policy and the agency deciding if these policies are being applied lawfully,” the letter stated. “Under this proposed rule, OPM could direct agencies to make probationary terminations and then adjudicate those same actions, eliminating any meaningful independence.”
The lawmakers, led by Sen. Chris Van Hollen (D-Md.), say the federal workforce needs to remain nonpartisan, insulated from political retaliation and have the right to due process.
“This rule is antithetical to those aims. We urge OPM to reject this proposed rule and work with Congress to effectively manage workforce operations,” the letter stated.
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