Court Upholds Removal After Employee Failed to Reveal Problems With Former Employer

An Internal Revenue Service employee who was fired for making a material false statement on his employment application has gotten nowhere in his efforts to persuade the appeals court to overturn his removal. (Schuster v. Office of Personnel Management, C.A.F.C. No. 2008-3016 (nonprecedential), 3/7/08)

Mr. Schuster indicated "no" in response to a question on the Standard Form 85P as to whether he had ever left a job "under unfavorable circumstances." (Opinion p. 2)

As they are wont to do, the background investigation turned up the fact that he has resigned from Qwest Corporation while being investigated. Apparently Schuster showed up at Qwest one day with a firearm, which was prohibited by company policy. His badge was taken and he was told to go home while an investigation was conducted. A few days later, Schuster resigned. (p. 2)

The IRS concluded that this resignation was under unfavorable circumstances and the agency removed Schuster for not disclosing this when he was hired by the agency. Schuster argued that he resigned from Qwest because he did not like the company’s work environment and therefore he had answered the question on the SF 85P appropriately. (p. 2)

Schuster appealed his removal to the Merit Systems Protection Board. The Board affirmed the agency’s actions. It concluded that the "tipping point" for Schuster’s resignation from Qwest was the investigation involving the firearm. The Board simply did not believe his explanation that he had left under favorable circumstances. The Board also did not agree with Schuster’s argument that he did not intentionally make a false statement, that it was negligence on his part. (pp. 2-3)

The appeals court, noting that the Board’s credibility decisions are "accorded great weight," has concluded that "substantial evidence supports the board’s determination that Schuster made a material, false statement when he applied for federal employment, and was therefore properly removed from his position with the agency. " (p. 2)

In short, the court has declined to overturn the agency and the MSPB. (p. 3)

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

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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.

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