MSPB MOMENT: APPEAL FROM A TEMPORARY APPOINTMENT – HOW MUCH TIME IN SERVICE REQUIRED?

Posted on: February 27th, 2017

          Harris Winns served the US Postal Service in a series of four temporary time-limited appointments of less than a year, separated by several days.  On February 6, 2014, he was appointed to a temporary Postal Support Employee position following a 5-day break in service.  Nine months later, before the appointment expired, he was fired for alleged misconduct.

          In order to establish jurisdiction, Mr. Winns would have to show that he had completed one year of current continuous service at the time he was terminated.  The Board in Roden v. TVA, 25 MSPR 363 (1984), held that a preference-eligible employee who held a series of five temporary appointments to the same position, separated by short breaks in service, had engaged in more than one year of continuous service.  Approximately 3 and ½ years later, OPM promulgated 5 CFR § 752.402, which states, “Current continuous employment means a period of employment or service immediately preceding an adverse action without a break in Federal civilian employment of a workday.”  Therefore, Mr. Winns’ service did not count as “current continuous service,” and the Board did not have jurisdiction over the appeal of his termination.

Winns v. US Postal Service, 2017 MSPB 1.

 

          PRACTICE TIP:  Based on the clarification provided by the Board in the above case, when a term or temporary employee has less than one year of continuous service, Kitchens New Cleghorn recommends exploring other bases for appeals, such as incidents of discrimination or whistleblowing.

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