When an employee is about to be fired, it may be understandable that that employee pulls out all stops to try and stay on the public payroll. But, in a new decision, the MSPB the employee details a scenario that shows how one former employee tried harder than most. As this case shows, sometimes trying too hard can work against the employee. (Talavera v. Agency for International Development, Docket No. DC-0752-05-0801-I-2 (January 9, 2007)
The Agency for International Development fired a security specialist based on four charges: Misrepresentation of a material fact; providing false information to a supervisor; inattention to duty; and failing to comply with instructions.
The agency decided that firing the employee was the right decision and implemented the proposal. The employee appealed the decision to the MSPB for relief. On appeal, she argued the agency violated her due process rights because the deciding official considered matters outside those outlined in the notice of proposed removal when the deciding official decided on the penalty to be imposed by the agency.
Consideration of a matter outside the notice of the initial proposal can be a persuasive argument. If an employee is not aware of a charge that is used in making the decision, it would be difficult to make an argument in defense of the employee’s actions.
But this case was unique. In this instance, the employee apparently submitted more false information to the agency in response to the proposed removal–or at least that was the view of the agency official.
One of the charges underlying the proposed firing was providing false information. The agency may have seen some irony when reading false information sent in response to the proposal to fire her for giving a supervisor false information. But the deciding official was not amused. In any event, the deciding official did consider the additional false written statements sent in response to the removal notice.
Perhaps it was a clever way to try and get around being fired. But, said the Board, the fact that the employee sent in more false information after the agency was already proposing to fire her for a similar problem indicated she was not a good candidate for rehabilitation. According to the Board, "In assessing the appellant’s potential for rehabilitation, it would have been entirely appropriate for (the deciding official) to consider the fact that the appellant refused to take responsibility for her actions and made false statements in response to the notice of proposed removal."
The deciding official did not deny the employee due process by considering the additional factor and, even if the deciding official did make a mistake, the Board concluded there was a basis for firing the employee in any event.