See pages 15 and 16, here. I'll quote it below -- but the answer. . . is directly contradicted by the time-stamps on emails, and the originating / sending [OPM] party line -- on dozens of which I am aware. Contradicted, on the basis of exhibits already on the record, in the litigation. Several of those are on file as exhibits to the amended complaint by the plaintiffs, as well. Damn. Take a look:
. . .OPM did not direct agencies to terminate probationary employees, based either on performance or misconduct. See Ezell Decl. ¶ 10. Rather, OPM reminded agencies of the importance of the probationary period in evaluating applicants’ continued employment and directed agencies to identify all employees on probationary periods and promptly determine whether those employees should be retained at the agency. See id. Agencies were responsible for reviewing probationers’ performance, and agencies were responsible for deciding which probationary employees to keep and to terminate. See id. Agencies were responsible for taking action to terminate their own employees they no longer wished to retain, and agencies were responsible for taking that action in accordance with all applicable laws and regulations. . . .
[Editorial Nota Bene: In the case I am most familiar with, this statement above is at best. . . wildly misleading (and the plaintiffs' affidavits contradict it -- many of them with proving exhibits -- they aver that their "termination notice" came ONLY from OPM, and only copied the agency head -- no one else). In the case of the probationary employee I am closely familiar with, the employee in question was to attend a pre-scheduled meeting with his direct supervisors by Zoom, to work out the next six months, both on budgets, and on transitional work plans and tasks. But a full-hour before that meeting, he received an OPM email (one that did not even copy anyone in his direct chain of command), saying he was being "terminated for cause -- poor performance". Two weeks earlier, he had received an "exceeds expectations" review, and a raise to a higher G- pay class. So the above is a lie, in at least several cases -- and perhaps, as to tens of thousands of these employees.]
Back now to OPM's answers:
. . .Probationers are applicants for employment with the burden to demonstrate their fitness for continued employment; there is no presumption that they will be retained. See Ezell Decl. ¶ 11. Agencies are obligated to use the probationary period to determine the fitness of probationary employees and must terminate employees’ services if they fail to demonstrate fully their qualifications for continued employment. See id. This determination must take into account the existing needs and interests of government. See id. The probationary period is part of the hiring process; agencies are not required to hire every employee whose performance is “satisfactory.” Id. An agency [Nota Bene -- not OPM, but the actual agency that employed the person] may determine, and OPM has determined, that only the highest-performing probationers in mission-critical areas demonstrate the necessary fitness or qualifications for continued employment. . . .
Again, that second answer to Judge Alsup's pointed question. . . is largely. . . non-responsive -- and argumentative. As such, the able USDC Senior Judge Alsup is likely to deem OPM "admitted" -- to the charge that these probationaries were fired NOT with any performance metric in mind -- at all. Note that Judge Alsup's second question actually was "how can you lawfully do that?" The last paragraph by OPM above does. . . nothing to answer his question.
Indeed, consider that my son was rated "exceeds expectations" by his own superiors. And they were utterly unaware he had been let go, by OPM, when he opened the Zoom meeting and informed them of the OPM email. [This all transpired in the Eugene, Oregon federal offices.]
Onward, tomorrow's hearing. . . it will be a banger -- in San Francisco.
नमस्ते
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