MSPB Clarifies Law on Preappointment Reason for Termination
The Merit Systems Protection Board reversed the termination of a Department of Veterans Affairs employee who was terminated after the Agency discovered that a current probation agreement bound the employee to inform prospective employers of his status and prohibited the use of computers with online services and the use of data encryption.
The employee received an appointment to the position of Program Support Clerk, subject to a one-year probationary period, on November 16, 2014. After his appointment, the agency notified him of his termination, effective February 13, 2015, due to “conduct issues.” The agency discovered that on June 22, 2007, the employee had entered into a probation agreement which “required him to inform any employer or prospective employer of his current conviction and supervision status, prohibited him from possessing or using a computer with access to any online computer service without the prior written approval of the court, and prohibited him from possessing or using any public or private data encryption technique or program.
In the termination notice, the agency stated that the employee “failed to disclose” to the agency that his computer access and use violated the terms of his probation agreement. Due to those limitations, the agency concluded that the employee was prevented from performing his job duties. The employee appealed his termination, arguing that although he was not an employee with rights under 5 U.S.C. chapter 75, the Board had jurisdiction pursuant to 5 C.F.R. § 315.806(c) because he had been terminated for preappointment reasons without being afforded the procedural protections set forth in 5 C.F.R. § 315.805. This regulation provides probationary period employees the right to a notice of proposed adverse action and an opportunity to respond, as well as a notice of the adverse decision, if the reasons for the employee’s removal are based in whole or in part on conditions arising before the employee’s appointment.
The employee also argued that his job duties did not violate his probation agreement, as there was a modified court order in 2012 that allowed him to access and use computers subject to the terms of a computer and internet monitoring program. The employee asserted that his probation officer had granted him permission to take the job after speaking with an agency HR specialist and reviewing the position description. However, the agency took a different position, arguing that there was no jurisdiction because the employee was terminated for postappointment reasons. The agency based its theory on the time that the agency learned of the employee’s probation agreement, and on his failure to disclose his inability to perform his job duties to the agency. The MSPB administrative judge dismissed the appeal for lack of jurisdiction, and the employee petitioned the full Board for review.
The Board observed that appeals under 5 C.F.R. § 315.806(c) do not reach the merits, and the only issue in such an appeal is whether the agency’s failure to follow the procedures in section 315.805 was harmful error. The Board agreed with the employee that the employee’s termination was based, at least in part, on preappointment, rather than solely postappointment, reasons. Citing Von Deneen v. Department of Transportation, 33 M.S.P.R. 420, aff’d, 837 F.2d 1098 (Fed. Cir. 1987), and Rivera v. Department of the Navy, 114 M.S.P.R. 52 (2010), the Board distinguished postappointment reasons like denial of a security clearance (even when the reason for denial existed prior to appointment) and failure to qualify for a Government credit card (even when the reason for denial was poor credit history that existed prior to appointment) from the present case. According to the Board, the employee in this case was never denied or failed to obtain a condition of employment based on a preexisting condition like those listed above.
Because the agency based the employee’s termination on the terms of the employee’s probation agreement, which had been in place since 2007, and because the record reflected that the agency’s proferred reason for objecting to the probation agreement (i.e. that the employee would be disallowed from performing his duties) may have been invalidated by a 2012 modified agreement, the Board found that the employee had been terminated for preappointment reasons. Moreover, the Board found that the record contained emails from the employee’s probation officer that indicated that she allowed the employee to accept the job after speaking with an HR specialist and verifying the agency was aware of the conviction and that the employee was under a term of supervision. The probation officer also stated in an email that she would “never have allowed the employee to accept the position if she thought it would have been in violation of the terms of his probation.”
The Board noted that while the agency conceded that the employee identified his conviction and probation status on his declaration for Federal employment, it could not explain why it hired him without doing due diligence on the terms of that probation status. Therefore, the Board found, that “[e]ven if the agency did not become aware of the specific conditions of the [employee’s] probation agreement until after he was appointed, the timing of the agency’s discovery of the specific terms of his preappointment probation agreement does not render the [employee’s] termination to be based on conditions arising postappointment.” The Board noted that the agency is not precluded from terminating the employee, but that it must provide him the procedural protections due to him.
For the above stated reasons and finding that the dismissal of the employee’s appeal prevented the employee from showing that he suffered harmful error (in this case that the agency would not have terminated him had he been afforded advance notice of his termination and an opportunity to respond), the Board reversed the administrative judge’s dismissal of the appeal, and remanded the appeal to the administrative judge to render a new decision after giving the parties an opportunity to present evidence and argument.
Read the full case: LeMaster v. Department of Veterans Affairs
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