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Termination letters sent to probationary employees usually say the decision cannot be appealed. That statement is close enough to true that most people stop reading, and it is wrong often enough to be worth checking. A Washington DC Federal Employee attorney reviewing one of these letters looks for four things: the date the probationary period actually began, the reason the agency gave, whether the conduct predated the appointment, and whether any protected disclosure or complaint sits in the timeline. Each opens a different route, and the filing windows are short.
What is a probationary period, and how long does it last?
A probationary period is the initial service period during which an agency may terminate a new employee using simplified procedures. For competitive service appointments it runs one year under 5 C.F.R. Part 315, Subpart H. For supervisors and managers, a separate supervisory probationary period of at least one year applies under 5 C.F.R. Part 315, Subpart I.
Excepted service employees serve a trial period rather than a probationary period, commonly two years under 5 C.F.R. § 316.304, though agency specific authorities vary. Employees in the Senior Executive Service serve a one year probationary period under 5 C.F.R. Part 317.
Whether you remain in probationary status is a factual question, and it is the first one worth resolving. Prior federal service in the same line of work can count toward completion under 5 C.F.R. § 315.802. Agencies sometimes calculate the period from the wrong date, from a reassignment rather than the original appointment, or fail to credit prior service. An employee who completed probation on paper has the full appeal rights of a career conditional employee, including MSPB jurisdiction over a removal under 5 U.S.C. § 7513.
What can a probationary employee appeal to the MSPB?
Two grounds exist under 5 C.F.R. § 315.806. First, a probationary employee may appeal a termination based in whole or in part on partisan political affiliation or marital status. Second, an employee terminated for reasons arising before the appointment, called pre-appointment reasons, may appeal on the ground that the agency failed to follow the required procedures.
The distinction between pre-appointment and post-appointment conduct drives that second route. Termination for performance or conduct during the probationary period requires only written notice stating the agency’s conclusions under 5 C.F.R. § 315.804. Termination based on something that occurred before hiring, such as an omission on an application or conduct at a prior employer, requires the fuller process at 5 C.F.R. § 315.805: advance written notice of the specific reasons, a reasonable time to reply in writing and to submit supporting affidavits, and a written decision at the earliest practicable date.
Appeals go to the Board within 30 days of the effective date of the action or receipt of the decision, whichever is later.
Can a probationary employee file a whistleblower or discrimination claim?
Yes, and these are usually the strongest options available. Probationary status has no bearing on protection under the whistleblower statute or the anti-discrimination statutes.
Retaliation for a protected disclosure falls under 5 U.S.C. § 2302(b)(8) and reaches the Board through an Individual Right of Action appeal after exhausting the Office of Special Counsel process. Exhaustion means either receiving OSC’s written termination notice, after which the MSPB filing deadline is 65 days from that letter under 5 C.F.R. § 1209.5, or waiting 120 days from the OSC filing without corrective action being sought. The agency then bears a clear and convincing evidence burden to show it would have terminated the employee anyway.
Discrimination claims run through the agency EEO office. Contact an EEO counselor within 45 days of the effective date of the termination, then file a formal complaint within 15 days of receiving the notice of right to file. Prohibited personnel practices beyond whistleblowing, including nepotism and improper hiring preferences under other subsections of 5 U.S.C. § 2302(b), can also be raised at OSC.
Veterans have an additional route. A preference eligible probationary employee may pursue a Veterans Employment Opportunities Act complaint with the Department of Labor within 60 days of the alleged violation, and USERRA claims for service related discrimination have no filing deadline.
What should you do in the first week after a termination notice?
Fix the timeline in writing before access disappears. Priorities:
- Pull your SF-50 forms to confirm appointment type, service computation date, and any prior creditable service
- Save the termination letter and any prior counseling documents, along with envelopes or emails showing receipt dates
- Identify whether the stated reason describes conduct before or after your start date
- Note every complaint, disclosure, accommodation request, or EEO contact you made, with dates
- Copy personal contact information for witnesses while you still can
Trial period employees in the excepted service should also check whether they are preference eligibles who have completed one year of current continuous service, which brings limited Chapter 75 appeal rights under 5 U.S.C. § 7511(a)(1)(B).
A probationary termination is not automatically unreviewable, but the openings are narrow and each carries its own clock, some as short as 30 days. Anyone holding a termination letter should have a Washington DC Federal Employee attorney check the appointment dates and the stated reasons promptly, before the deadlines pass on the routes that remain available.
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