"Last Chance" Agreement Means What It Says

A mail handler fired by the Postal Service unsuccessfully tried to talk first the Merit Systems Protection Board, and now the Federal Circuit Court of Appeals into reversing the adverse action that was based on her violation of a last chance agreement. No dice, says the court. (Fiori v. United States Postal Service, C.A.F.C. No. 2008-3026 (nonprecedential), 6/4/08)

A few years ago, the agency proposed to remove Fiori for drinking alcohol while on duty. When the dust settled, the parties had signed a last chance agreement. For the uninitiated, the agreement in essence gave Fiori one last chance. The agency agreed to hold off on firing her. In turn, Fiori acknowledged the charges were true and removal was appropriate, but in return for getting this last chance, for two years she would submit to random drug and alcohol testing. If she tested positive, she agreed this would violate her agreement and she could be immediately removed. (Opinion pp. 1-2)

Sadly, a little over a year later, Fiori tested positive for alcohol. She was removed for violating the last chance agreement. She appealed to the Merit Systems Protection Board. The Administrative Judge found that the last chance agreement was valid, Fiori had violated it, and removal was appropriate under the circumstances. (p. 3)

Fiori tried to argue that the positive test results were not hers since the time stamped on them was about an hour before she actually took the test. However, the agency proved to the MSPB’s satisfaction that the time clock on the machine had not been re-set for daylight savings time, that the technician had only administered one test that day, and that Fiori he had verified the results with Fiori and had her sign the results. (p. 4)

Fiori argued that removal was unreasonable given her length of service and her otherwise good work record. She got nowhere with the court, however. Its decision points out that “we cannot disturb the penalty chosen by the agency unless it is ‘so “outrageously disproportionate” to the charged offense…as to constitute an abuse of discretion.'” (p. 5)

Fiori also contended that she had signed the last chance agreement under duress, but the court would have no part of this argument, finding that there was no evidence supporting this whatsoever. (p. 5)

Before employees sign a last chance agreement it is imperative that they fully understand its significance and the consequences for violating its terms.

© 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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