This case came to our attention because some anti-employee bloggers characterized the MSPB’s decision as “saving” the Dep’t. of Army from a series of blunders its managers committed while firing an employee. But make no mistake, this is an MSPB cover-up, not some well-intended helping hand.  This case explains why employees should always choose to appeal adverse actions to a certified neutral arbitrator rather than MSPB. It also confirms that MSPB gladly will distribute “Get Out of Jail” cards to help management fire an employee. Here is a quick summary of what happened.

An employee working in HR committed a deliberate violation of another employee’s PII (Privacy) in order to learn the name of that employee who worked alongside the HR employee’s husband. She suspected him of having an affair with the woman.  The agency fired the HR employee rather than take any lesser action.  But in doing so, its Deciding Official (DO)–

  • Held the employee to a higher standard because of the employee’s fiduciary responsibilities, even though the employee did not have such responsibilities.
  • Concluded that the agency’s  investigative service had concluded the employee had committed a crime, even though it never said any such thing.
  • Decided to ignore proof of the employee’s mental health condition.
  • Held it against the employee that she tried to defend herself in her reply.
  • Chose to dismiss as inconsequential the employee’s15 years of Federal service, that she consistently received the highest performance ratings, had never been disciplined, and was remorseful.

In other words, even though the Deciding Official’s performance was riddled with errors that cost the agency a 15-year, top performing employee based on a single infraction that harmed no one tangibly, MSPB said that was OK.

A bundle of Supreme Court cases, not to mention a statute, hold that a federal employee is entitled to make a reply to charges before s/he can be terminated.  This employee might as well as have been giving her reply to a wall.  There is no way MSPB should hold that an employee was given her Constitutional protections when the reply is riddled with incompetence and error.

The case is Lott v. Army, SF-0752-16-0490-I-1 (Apr. 10, 2023).  Here is hoping that she has a good attorney or a good attorney eager to crush this stupid piece of case laws finds her.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
This entry was posted in Discipline/Adverse Action and tagged . Bookmark the permalink.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.