Federal Circuit: Federal Employees Can Run, But They Cannot Hide From Notices of Termination

This case law update was written by Emily A. Shandruk, an Associate Attorney at the law firm of Shaw Bransford & Roth, where she joined in January 2024. Ms. Shandruk contributes her extensive experience in state and federal litigation to the firm, showcasing her prowess in authoring dispositive motions and coordinating discovery in complex federal litigation.

Last week, the United States Court of Appeals for the Federal Circuit grappled with the question of whether regulations require probationary federal employees to receive, rather than merely be issued, notice of termination before their probationary period ends for their termination to be effective. The Court answered that regulations only require agencies to do “all that could be reasonably expected under the circumstances” to deliver notice.

Petitioner is a former Bureau of Prisons (“BOP”) correctional officer who was appointed subject to completion of a one-year probationary period, which the parties agree ended on April 8, 2022 at 4:00 PM. On March 30, 2022, Petitioner was placed on paid administrative leave, during which time she was subject to recall to duty at any time and was required to provide a telephone number at which she could be reached during normal duty hours. On April 6, 2022, two days before Petitioner’s probationary period was to end, BOP prepared a termination letter to Petitioner informing her that she would be removed from her position at the end of that day.

BOP took numerous efforts to inform Petitioner of its decision to terminate her. First, on April 5, 2022, BOP directed Petitioner to report to the facility the next day, but Petitioner failed to report amid a claimed illness. Petitioner presented a note from a nurse practitioner stating that she was seen at the clinic on April 5, 2022—the day Petitioner received the instruction to report to the facility—and that Petitioner should be excused from work until April 9, 2022—the day after her probationary period ended.

Second, BOP mailed a copy of the termination letter to Petitioner via USPS Certified Mail and FedEx overnight mail. Petitioner claimed she did not receive the letter until April 12, 2022. Per the tracking information, USPS was unsuccessful in delivering the letter on April 8, 2022, but the FedEx letter was delivered and signed for on  April 7, 2022. Despite this tracking record, Petitioner claimed that she did not receive the FedEx package and the signature was not hers.

Third, BOP’s human resources manager called Petitioner on April 8, 2022 and left a voicemail referencing her removal letter. Petitioner claims she received this voicemail after her probationary period ended, but the human resources manager testified that she left the message before 3:00 PM.

On April 20, 2022, Petitioner’s union filed a grievance claiming that Petitioner had been removed from her position without due process required by the union’s Master Agreement, statute, and regulation. After BOP denied the grievance, an in-person arbitration hearing was held. The arbitrator found that Petitioner was terminated during her probationary period and was not entitled to advanced notice. Notably, the arbitrator did not resolve whether Petitioner received notice before the probationary period ended. Petitioner timely petitioned for review.

Petitioner’s primary argument was that the arbitrator misapplied 5 C.F.R. § 315.804(a), which states that when terminating a probationary employee, an agency “shall terminate his services by notifying him in writing as to why he is being separated and the effective date of the action.” While Petitioner argued that her termination was not effective because she did not receive notice before the end of her probationary period, the Federal Circuit dismissed this argument. The Court held that § 315.804(a) does not require that a probationary employee receive actual notice before the end of their probationary period. Instead, termination is effective if an agency does “all that could be reasonably expected under the circumstances” to timely deliver notice of her termination prior to the conclusion of the probationary period.

Applying this standard, the Court pointed to BOP’s repeated efforts to notify Petitioner of her termination. Because of these efforts, the Court found that no reasonable arbitrator could find that BOP’s efforts to notify Petitioner were not reasonable under the circumstances, or that BOP’s efforts were inconsistent with § 315.804(a). As this Court noted, this result makes “eminent sense in terms of the purpose of the regulation” because if actual notice was required, “a probationary employee could simply evade notice and preclude termination.”

Read the full case: Levis v. Federal Bureau of Prisons