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Federal Employees News Digest : Oct. 8, 2012
October 8, 2012 Vol. 62, No. 13 5 Visit us on the Internet at www.FederalDaily.com This week in "You Be the Judge," a Government Printing Office employee appeals his termination for misconduct---miscon- duct that the documentation shows was limited to off-duty hours while he was cleared for leave for reserve military duty. The appellant, who will be known here as John Doe,* cited discrimination due to his military service, and appealed for protection under the Uniformed Services Employment and Reemployment Rights Act. Doe says the law clearly supports his claim that his termination was unjustified, and that his military service played a role in his termination. Should Doe's off-duty misconduct be considered adequate grounds for termination? Or was his termination improper, and arose from agency discrimination against him for his military service and should he be protected under USERRA? Read the details of the case, and weigh the law and the precedents. You be the judge. FACTS: Doe worked as an electrician for GPO at the agency's secure production facility at NASA's Stennis Space Center in Mississippi, beginning in March 2008. Just a few months later, in August, Doe prepared to take a long-scheduled leave to do military reserve service. However, a hurricane was approaching the area, and Doe instead was granted an excused absence to return home to his family in light of the potential emergency. The GPO part of the NASA facility was not an approved shelter, according to documents in the case, but under the circumstances the agency authorized employees to take cover and "wait out the hurricane there," if necessary. Doe quickly concluded it was the best place for himself and his family, including a minor child. But GPO's crisis instructions specified that "employees with children and special-needs individuals were [to be] directed to stay at the main NASA facility" nearby, which was authorized to shelter these individuals. On Aug. 29, with the storm closing in, Doe was informed by phone that he could stay in the GPO area, but that his 3-year-old son had to be sheltered in the NASA build- ings or elsewhere. According to the documents, Doe subsequently argued with the administrative officer and with a GPO facility manager, pushing to bring his son there. Contrary to agency instructions, Doe went to the GPO facility with his son and his fiancée's 80-year-old mother. Officials there would not admit any of his party, and---according to the docu- ments---he argued yet again. In addition, and more seriously, "the GPO facility manager had received a telephone call that [Doe] was behaving in a threatening manner towards other GPO personnel." Doe and his family sheltered elsewhere. The hurricane passed, the GPO facility reopened and Doe returned to duty status. However, on Sept. 26, 2008, agency management terminated Doe as a probationary employee, citing negative "personal conduct" and "failure to follow instructions" regarding the temporary shel- ter. Doe appealed his termination, arguing that that "the agency terminated him based on discrimination motivated by his mili- tary service," according to documents in the case. He asked for protection under USERRA, taking his appeal to the Merit Systems Protection Board as permitted even for probationary employees in such cases. But, on March 27, 2012, the board ruled against his appeal. "[Doe] presented no evidence to show that his military service was a motivating factor in his termination," the board concluded. Doe later took his appeal to the U.S. Court of Appeals for the Federal Circuit. Should Doe be protected under USERRA, and restored to service? DECISION: The court agreed to hear Doe's case, noting that it can counter MSPB cases only under three conditions, where that panel's decision is found to be: "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evi- dence." 5 U.S.C. § 7703(c). Citing precedent, Sheehan v. Department of the Navy (2001), the court noted that in USERRA cases, it is the appellant's respon- sibility to demonstrate by preponderant evidence that in the adverse agency action at issue, the military service was "a sub- stantial or motivating factor." Further, the agency can counter by demonstrating that it would have taken the adverse action regardless of the appellant's military service. Here, the court found against Doe: "The evidence shows that on two occasions, Doe acted inappropriately," Hence, the court concluded, it was legitimate for the agency to charge Doe regardless of any pos- sible administrative bias against his military service. Furthermore, the court answered Doe's second argument---that since he was off-duty, the alleged misconduct in this case should not be germane to his employment status. On this point, too, the court rejected Doe's claim. The applicable federal law, Section 2302(b)(10), only protects against off-duty discrimination "on the basis of conduct which does not adversely affect the per- formance of the employee or applicant or the performance of others," the court concluded. Here, that is not the case, the court found---and accordingly, Doe's termination stands. (U.S. Court of Appeals for the Federal Circuit, Docket No. 2012- 3115, 8/10/12) *Names have been changed, but facts are based on an actual case. Should GPO employee be fired for off-duty misconduct?
Oct. 1, 2012
Oct. 15, 2012