Getting Fired For "Off Duty" Actions

By on November 3, 2005 in Current Events with 0 Comments

Do being convicted of a felony for possessing cocaine and having your commercial driver’s license suspended as a result add up to a sufficient nexus to justify firing a postal service tractor trailer driver? The answer is “yes” according to the U.S. Court of Appeals for the Federal Circuit.

In Skelton v. United States Postal Service, No. 05-3140, November 2, 2005, the court affirmed the Merit Systems Protection Board decision that upheld the removal of a 14-year employee by the agency.

Mr. Skelton’s problems began when he was driving his personal vehicle off duty and had a license plate light that did not work. He was stopped by a police officer who discovered that Mr. Skelton was apparently intoxicated. The officer also discovered five bags filled with cocaine. The result was a conviction for possession. As a result he had his commercial license suspended and was sentenced to home detention. He continued driving his tractor trailer during the period his license was suspended.

Mr. Skelton tried to persuade the MSPB and the appeals court that his removal did not promote the efficiency of the service and that there was no nexus between the cocaine conviction and license suspension, and his ability to perform the duties of his position with the Postal Service. Neither argument got very far. The MSPB judge concluded that cocaine use could seriously affect public safety and held that the felony conviction, failure to report suspension of his license, and continuing to drive the agency’s vehicles while his license was suspended was enough to meet the “efficiency of the service” test. The appeals court saw no reason to disturb the MSPB decision.

This case illustrates that one key requirement in trying to discipline an employee for off duty conduct is to tie the conduct into official job performance—the so-called “nexus” requirement. Ignore this requirement and you run the risk of losing before the MSPB. In this case the agency properly and persuasively made the connection.

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.