Nine Minutes Late! "You're Out of Here!"

By on February 21, 2007 in Current Events with 0 Comments

Here’s a recent case that should help dispel the myth that it’s impossible to fire a federal employee. (Jones v. United States Postal Service, C.A.F.C. No. 2006-3361 (nonprecedential), 2/9/07) The facts are taken from the court’s opinion.

Jones was a mail processing clerk in Gary, Indiana. The agency removed him based on three charges: unacceptable conduct, insubordination, and absence without leave.

The unacceptable conduct charge involved Jones being nine minutes late from a scheduled work break. The insubordination charge came about from his refusal to obey a supervisor’s directive to move an all-purpose container from the work area, approximately two feet. When he refused to move the container, the supervisor ordered Jones to remove himself from the facility. Jones refused to obey that order several times until the police were called to escort him out. The AWOL charge was for 8 hours when he failed to return to work when instructed in writing. (Opinion, pp. 1-2)

Jones appealed his removal to the Merit Systems Protection Board. On the unacceptable conduct charge, Jones admitted he returned from his break nine minutes late. But he argued to the Board and the court that he was late leaving for his break and was therefore justified. The Board found that Jones’ machine was left unattended as a consequence and concluded that he therefore should have returned on time. As to the insubordination charge, the Board concluded from the evidence that Jones’ argument that it would have been unsafe to move the container amounted to “frivolous” safety allegations. The Board did not sustain the 3rd charge, but held that the first two charges were sufficient to warrant Jones’ removal. (pp. 2-3)

The appeals court now affirms, concluding there was substantial evidence to support the Board’s findings and conclusions. Jones argued to the court that removal was disproportionate and cited his ten years with the agency as well as his military service medals. Apparently sympathetic to Jones, the court nevertheless upheld the removal: “Although it seems to us to be a close decision and a harsh penalty, the removal was within the agency’s discretionary authority, the agency directing our attention to previous notices to Mr. Jones concerning the need to obey orders.” (pp. 4-5)

© 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.