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ALLEN v. DEPARTMENT OF THE AIR FORCE

June 21, 1988

CHRISTINE A. ALLEN, Plaintiff,
v.
DEPARTMENT OF THE AIR FORCE, Defendant



The opinion of the court was delivered by: THOMPSON

 Ralph G. Thompson, UNITED STATES DISTRICT JUDGE.

 Before the Court is defendant's Motion to Dismiss or, in the Alternative for Summary Judgment. The plaintiff has responded. Furthermore, at the Court's request, the parties have filed supplemental briefs.

 Plaintiff brings this claim under Executive Order 5396 and the Back Pay Act, 5 U.S.C. § 5596. The Complaint alleges that the plaintiff was wrongfully terminated for service-connected disabilities. In particular, plaintiff states that the termination was due to excessive absences but that the majority of these absences were for medical appointments related to service-connected disabilities. Plaintiff contends that Executive Order 5396 and the Back Pay Act entitle her to attendance without adverse reference for absences attributable to service-connected disabilities. Plaintiff requests reinstatement and retroactive pay and benefits. In the supplemental brief, plaintiff states that she will limit her requested relief to $ 10,000 or less.

 The defendant contends that this Court lacks jurisdiction over the plaintiff's claims because she was a probationary employee. Defendant also states that this Court lacks jurisdiction over the plaintiff's claims under Executive Order 5396 or the Back Pay Act.

 Plaintiff was employed by the Air Force at Tinker Air Force Base, Oklahoma. Her career-conditional appointment was conditioned upon her completing a one-year probationary period commencing January 7, 1985. On October 21, 1985, plaintiff was notified that she would be terminated from employment for failure to qualify during the probationary period. Specifically, the notification stated that plaintiff had used all of her accrued leave and was therefore carried in an absence-without-pay status for an additional 331 hours. After being given an opportunity to respond, plaintiff was notified that she would be terminated effective November 5, 1985. Following this, plaintiff appealed to the Merit Systems Protection Board (MSPB), alleging wrongful termination due to her disabilities and discrimination based on marital status due to her interracial marriage. On January 6, 1986, the MSPB issued a decision finding that it had no jurisdiction and therefore no basis to review the termination because of plaintiff's probationary status. The MSPB further found that there was no basis to review the allegations of discrimination based on marital status and that the allegations of handicap discrimination did not provide an independent basis for jurisdiction. There was no appeal to the full Board, and the decision became final on February 10, 1986.

 The Court agrees with defendant's contention that it lacks jurisdiction to review the administrative decision to terminate the plaintiff due to plaintiff's probationary status. The policy of denying probationary employees the right to challenge such terminations is based on the premise that the probationary or trial period is an extension of the examining process to determine an employee's ability to actually perform the duties of the position. "It is inappropriate to restrict an agency's authority to separate an employee who does not perform acceptably during this period." S. Rep. No. 969, 95th Cong., 2d Sess. 45 (1978), reprinted in 1978 U.S. Code Cong. & Ad. News 2723, 2767. Because Congress could have permitted probationers to challenge removals, but declined to do so, it ...


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