Federal employees who are serving a probationary or trial period often have fewer job protections than permanent federal employees. However, probationary status does not mean an employee has no rights at all. In certain situations, probationary employees may have legal protections, procedural rights, or alternative avenues to challenge an adverse action.
This article explains what probationary federal employees need to know about their rights, limitations, and potential legal options if they are facing termination or other adverse action.
What Is a Federal Probationary Period?
A probationary period is a trial phase of federal employment during which an agency evaluates an employee’s performance, conduct, and suitability for continued employment.
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Competitive service employees generally serve a one-year probationary period
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Excepted service employees may serve a trial period, which can be one or two years, depending on the appointment authority
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Time spent as a contractor or intern typically does not count toward probation
Also, keep in mind that due to new Office of Personnel Management (OPM) regulations in June of 2025, probationary employees cannot move to full tenure status without affirmative approval by their agency. During the probationary period, agencies have broader discretion to remove employees than they do once probation is completed. However, some federal supervisors abuse this process and attempt to terminate employees not on actual merit, but personality dislike or illegal motives.
Can a Federal Agency Terminate a Probationary Employee?
Yes. In most cases, a federal agency may terminate a probationary employee with limited procedural requirements and without providing full appeal rights to the Merit Systems Protection Board (MSPB) or OPM. The probationary appeals process is currently pending transition from the MSPB to OPM based on recent OPM proposed rules.
Unlike permanent employees, probationary employees generally:
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Are not entitled to advance notice of removal
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Do not receive a formal opportunity to respond
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Do not have full MSPB / OPM appeal rights
However, this discretion is not unlimited, and agencies must still follow applicable laws and regulations.
Do Probationary Employees Have Appeal Rights?
In general, probationary employees do not have MSPB or OPM appeal rights. However, there are important exceptions. Many of these rights and appeal procedures are being revised and may be undertaken by the OPM in the near future.
Limited MSPB or OPM Appeal Rights May Exist If:
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The termination is based on pre-appointment reasons, such as alleged falsification of application materials or conduct that occurred before federal service
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The termination is based on marital status or partisan political affiliation
In these narrow circumstances, a probationary employee might be able to file an MSPB appeal or OPM appeal (when the process is finalized) challenging whether the agency followed the law. Previously, these types of appeals were solely handled by the MSPB.
Other Legal Protections for Probationary Employees
Even when MSPB appeal rights are limited, probationary employees may still have other legal avenues available which may provide a better opportunity to litigate a wrongful probationary termination.
Equal Employment Opportunity (EEO) Rights
Probationary employees are protected from discrimination based on:
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Race
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Color
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Religion
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Sex (including pregnancy and gender identity)
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National origin
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Age (40 and over)
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Disability
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Genetic information
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Retaliation for prior EEO activity
A probationary employee who believes their termination was discriminatory may pursue an EEO complaint, regardless of probationary status. Any new changes do not effect the EEO process.
Whistleblower Protections
Federal employees — including probationary employees — are protected from retaliation for making protected disclosures under the Whistleblower Protection Act.
Employees who believe they were terminated for whistleblowing may seek relief through the U.S. Office of Special Counsel (OSC) and ultimately the MSPB.
USERRA Protections
Federal employees in a probationary status are also protected against military discrimination. The Uniformed Services Employment and Reemployment Rights Act (USERRA) permit these individuals to appeal probationary terminations based on military discrimination. If the military discrimination claim arises under USERRA, the MSPB has jurisdiction regardless of probationary status.
Common Agency Mistakes During Probationary Terminations
Agencies sometimes make errors that affect a probationary employee’s rights, including:
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Terminating an employee whose probation has already ended
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Improperly classifying the employee’s appointment status
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Failing to follow required procedures for pre-appointment removals
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Terminating an employee based on whistleblowing
- Terminating an employee based on illegal discrimination
These issues can significantly affect whether appeal rights exist.
Examples
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Example 1: An employee removed for alleged resume falsification may be entitled to appeal to either the MSPB or OPM.
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Example 2: An employee terminated shortly after filing an EEO complaint may have a retaliation claim.
- Example 3: An employee discloses fraud and is terminated in their probationary period as retaliation.
Each case depends on its specific facts and timing.
Changes Likely Ahead in 2026 and Beyond
As noted, new changes have been proposed by the Government in regards to attempt to limit or change probationary rights. These new policies started in 2025 and have been proposed for 2026. Expect additional changes to the probationary appeals process in the future. It is expected that OPM will take on more of the probationary period appeals in the future. These changes do not affect discrimination or whistleblower appeals involving probationary employees.
Frequently Asked Questions
How long is a federal probationary period?
Most competitive service employees serve a one-year probationary period, but some excepted service positions require a longer trial period. Additionally, an agency must affirmatively approve the transition from probationary to tenured employee.
Can a probationary employee appeal a termination to the MSPB or OPM?
Usually no — but limited MSPB or OPM appeals may be available in specific circumstances, and other legal claims may still exist like EEO or Whistleblower complaints.
Does probationary status mean I have no rights?
No. While rights are limited, probationary employees are still protected from discrimination, retaliation, and certain prohibited personnel practices.
Why Legal Guidance Matters
Because probationary rights are limited, currently changing and highly technical, timing and classification issues are critical. Employees may lose potential claims simply by missing deadlines or misunderstanding their status.
An experienced federal employment attorney can help determine whether:
- OPM appeals exist if MSPB appeals do not
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An EEO or OSC claim is appropriate
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The agency followed required procedures
Conclusion
Federal probationary employees have fewer protections than permanent employees, but they are not without rights. Understanding the scope and limits of those rights is essential when facing termination or other adverse actions.
If you believe your probationary termination violated federal law or merit system principles, seeking timely legal advice may help protect your interests.
Many federal employees quit when things become toxic or discriminatory. They shouldn’t have to suffer these issues in the federal workplace but do. Many resign or retire and then ask whether or not there is any remedy. This is where the concept of constructive discharge comes up. Our federal employment lawyers represent these federal employees.
📞 Call (703) 668-0070
What is a Constructive Discharge?
A constructive discharge is a forced resignation or retirement by involuntary means. Many federal employees are confused about this concept and whether it may apply to their case.
The most clear example of a constructive removal involves a federal employee who has suffered continuous discrimination in the workplace to the point that they are suffering significantly at work (mentally and/or physically) and the employee’s very well being requires that they resign.
This type of argument can be made at either the Equal Employment Opportunity Commission (EEOC), in the context of a Merit Systems Protection Board (MSPB) appeal, in the courts and before other forums.
Examples of Constructive Discharge in the Federal Sector
1. An agency failed to address ongoing sexual harassment at work against a female federal employee, where the employee fears for their safety and resigns after their agency has not remedied the situation after she had reported it.
2. A federal employee is forced to apply for disability retirement when a federal agency refuses to take steps to determine whether his medical disability could be reasonably accommodated.
3. A federal employee, rather than facing daily acts of retaliation at work for having filed an Equal Employment Opportunity (EEO) complaint against their supervisor later resigns because his manager, still angry about the earlier EEO complaint, continues to retaliate against the employee severely. The federal employee, despite her attempt to notify upper management of these acts of retaliation, begins to suffer anxiety and depression. The employee resigns based on these intolerable working conditions to protect her health.
4. A federal employee working for at an air base restaurant was found to have been at an subjected to unlawful harassment based on his sexual orientation when a server at the restaurant repeatedly called him a derogatory name used to insult gay men and threatened him with bodily harm. Because the federal employee’s resignation was seen as reasonable, given the threats, the EEOC held that he was constructively discharged from his position. Silas T. v. Dep’t of the Air Force, EEOC No. 2019003996 (EEOC OFO 2021).
How to Establish a Constructive Discharge Claim
The key issue in a constructive discharge or removal case is whether the agency, through discrimination, retaliation, harassment, etc., made the employee’s conditions at work so horrible that any reasonable person in the same situation would have felt compelled to resign or retire. Constructive removals or discharges do not happen in every case and the EEOC, MSPB and the courts review these cases in degrees to determine whether or not a resignation or retirement was effectively forced due to the intolerable working conditions.
The essential test for a constructive removal/discharge are the following questions:
1. Whether or not there has been discriminatory or retaliatory behavior against the federal employee?;
2. Whether or not the discriminatory behavior has been so severe as to be intolerable by a reasonable person?; and
3. Whether the individual was forced to resign or retire because of these intolerable conditions?
If the answers to these 3 questions are yes, then it is possible to bring a constructive removal or discharge case against a federal agency. It is very important, in the context of a constructive discharge claim, to put the agency on notice of the ongoing negative work conditions before a resignation or retirement takes place. This cannot be emphasized enough. The agency should have a clear record of the efforts made by the federal employee to put management on notice of the ongoing negative work conditions. Doing so before the removal is often key to showing evidence of the intolerableness in working conditions when filing a claim.
Evaluating Evidence for Constructive Removal
Establishing evidence of the constructive removal is important given the way in which the EEOC and the MSPB have evaluated such claims in the past. The MSPB “has recognized that ‘an employee is not guaranteed a work environment free of stress,’ and that dissatisfaction with work assignments, a feeling of being unfairly treated, or difficult or unpleasant working conditions are not so intolerable as to compel a reasonable person to retire or resign. Miller v. Department of Defense, 85 M.S.P.R. 310, 322 (2000). The EEOC, in 2017, in Latarsha A. v. Cochran, 2017 EEOPUB LEXIS 319, EEOC (IHS) 0120150488 (E.E.O.C. Jan. 31, 2017) offered their reasoning:
The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee’s working conditions so difficult that any reasonable person in the employee’s position would feel compelled to resign. Carmon-Coleman v. Dep’t of Def., EEOC Appeal No. 07A00003, 2002 EEOPUB LEXIS 2344 (Apr. 17, 2002). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant’s position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant’s involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep’t of Justice, EEOC Request No. 05940688, 1995 EEOPUB LEXIS 1014 (Apr. 13, 1995).
Remedies for Constructive Discharges / Removals
There are a number of remedies possible for constructive discharge cases. For instance, there can be a return to work, lost backpay, attorneys fees, and compensatory and other damages. Additionally, settlements can often be worked out with federal agencies which rectify a difficult employment situation in any number of ways.
Contact Us
If you need assistance in filing or evaluating a constructive discharge claim, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.
Federal employees can face disciplinary actions for a wide range of issues, from minor reprimands to proposed removals. When your federal career is on the line, understanding the process and asserting your rights is critical.
At Berry & Berry, PLLC, our federal employment attorneys represent federal employees nationwide in disciplinary and adverse action cases. With decades of experience defending federal workers, we help protect careers, benefits, and professional reputations.
Federal Disciplinary and Adverse Actions Explained
Federal disciplinary actions vary and include:
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Letters of counseling or warning
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Letters of reprimand
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Suspensions (14 days or fewer)
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Demotions
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Proposed removals
More serious penalties, those involving suspensions over 14 days, demotions, and removals are considered adverse actions with additional legal rights given to federal employees.
Step-by-Step: the Federal Disciplinary Process
The following includes the 8 parts of the federal disciplinary process that federal employees should consider when going through a disciplinary action.
1. Receiving the Proposed Action
When an agency issues a notice of proposed discipline or an adverse action, it should:
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Explain the allegations or performance issues
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List relevant deadlines
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Provide (or be requested to provide) the evidence relied upon
There are usually at least 2-3 deadlines in a proposed action that you have to consider. These include: (1) the deadline to request the materials relied upon, (2) the deadline to request an oral response; and (3) a deadline to submit the written response. Deadlines can be short (as few as 7 days) or up to 30 days. Missing a deadline can forfeit your right to respond. In some cases, deadline extensions can be sought.
2. Request All Materials Relied Upon
Federal employees have the right to review the agency’s evidence before responding. These materials may include:
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Investigation reports
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Emails, video, recordings, or documents
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Witness statements
Having the full file is essential for crafting a strong written response.
3. How to Prepare a Comprehensive Written Response
Your written response should:
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Address all allegations
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Refute inaccuracies
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Include supporting exhibits (declarations, rebuttal evidence, performance records, character letters)
It’s often detailed (7–20 pages or more), and should also include mitigation arguments known as the Douglas factors — criteria used to argue for a reduced penalty even if some misconduct occurred.
4. Prepare an Oral Reply
In important disciplinary cases, presenting an oral reply before a Deciding Official can make a significant difference. This is your chance to:
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Emphasize key arguments
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Highlight mitigating circumstances
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Reinforce why discipline should be reduced or withdrawn
Experience in oral advocacy can directly influence outcomes.
5. Understanding the Douglas Factors
The Douglas factors are used in federal disciplinary cases to argue for a lesser penalty. Established by the MSPB in Douglas v. Veterans Administration, they include considerations such as:
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Length of service
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Past performance and awards
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Absence of prior discipline
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Whether the offense was intentional or negligent
Agencies must consider these factors when determining a reasonable penalty.
6. What Happens After Your Response
Once written and oral responses are complete, the agency’s Deciding Official issues a final decision. Outcomes may include:
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Disciplinary action upheld
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Penalty reduced
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Proposed action rescinded
You’ll also receive a notice outlining your appeal rights.
7. Appeals Options After an Adverse Action
If the final decision is adverse, you may have one or more appeal options depending on your circumstances.
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Merit Systems Protection Board (MSPB) – appeals for adverse actions like removals and long suspensions
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Agency grievance procedures – if covered by a union contract
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Equal Employment Opportunity (EEO) complaints – if discrimination or retaliation is involved
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Office of Special Counsel (OSC) – for whistleblower retaliation claims
Deadlines for appeals are strict — often as few as 30 days — so prompt legal support is essential.
8. Why You Need an Experienced Federal Employment Lawyer
Defending a federal disciplinary action is not just procedural, it is a chance to reverse or mitigate damage to a federal employee’s career. A skilled attorney can:
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Analyze and challenge agency evidence
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Identify procedural errors
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Craft persuasive mitigation arguments
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Navigate complex appeals, including MSPB and OSC complaints
With decades defending federal employees, Berry & Berry, PLLC helps clients protect their jobs, benefits, and retirement.
Frequently Asked Questions About Federal Employee Disciplinary Actions
What should I do after receiving a proposed suspension or removal?
After receiving a notice of proposed discipline, you typically have a limited amount of time to respond before a final decision is made. This is your primary opportunity to challenge the agency’s allegations, present evidence, and argue for a lesser penalty. Many employees choose to consult an attorney at this stage because an effective response can sometimes prevent or reduce discipline before it becomes final.
How long do I have to respond to a federal disciplinary action?
Response deadlines vary by agency and the type of action, but employees are commonly given 7 to 30 days to submit a written response and request an oral reply. These deadlines are strict, and missing them can limit your ability to influence the outcome. The proposal notice should specify the exact timeframe.
Can I respond orally instead of in writing?
In many cases, federal employees are entitled to both a written response and an oral reply to the deciding official. An oral reply allows you to address concerns directly, clarify misunderstandings, and humanize your position. Written responses, however, are often critical because they create a record that may later be reviewed on appeal.
What are the Douglas Factors and why do they matter?
The Douglas Factors are a set of criteria agencies must consider when determining an appropriate penalty, including your work history, intent, consistency of discipline, and potential for rehabilitation. A strong response often focuses on these factors to argue that the proposed penalty is excessive or unreasonable. Addressing the Douglas Factors can significantly affect the final outcome.
Do I need an attorney before a final decision is issued?
While representation is not required, many federal employees seek legal guidance during the proposal stage because this is when discipline can sometimes be mitigated or avoided altogether. Once a final decision is issued, options may become more limited and costly. Early legal involvement can help ensure your response is strategic and complete.
Can disciplinary actions be appealed to the MSPB?
Some disciplinary actions, such as removals, demotions, and lengthy suspensions, may be appealable to the Merit Systems Protection Board (MSPB). Eligibility depends on factors such as your employment status, length of service, and the nature of the action. Appeal rights are typically explained in the final decision notice.
Get Help Today
If you’ve received a proposed disciplinary or adverse action, don’t wait. Contact us for experienced legal representation at (703) 668-0070 or click here.
