"Flirtatious" Behavior and a Last Chance Agreement Lead to Removal

By on October 30, 2008 in Court Cases, Current Events with 0 Comments

Yet another fired federal employee found himself tripped up by a last-chance agreement that he signed to avoid a previous discipline case against him. This time it was a supply technician with the Department of Veterans Affairs. (Melendez v. Department of Veterans Affairs, C.A.F.C. No. 2008-3207 (nonprecedential), 10/15/08) Below are the facts as explained in the court’s opinion.

The first time around, VA removed Melendez, charging he had used government computers to send “obscene material” and to place “inappropriate graphic images” on his computer. (Opinion pp. 1-2) On appeal before the Merit Systems Protection Board, Melendez and the agency settled the case by signing a last-chance agreement. The agency reinstated him and in return Melendez agreed that “any action on his part that would support the proposal of any type of disciplinary action will result in the reinstatement of the removal…” and in this event he waived his appeal rights to challenge the reinstated removal action. (pp1-2)

When the agency invoked the agreement several months later and removed Melendez for disrespectful conduct, he appealed to the Board. Unfortunately for him, because he had waived his appeal rights in the last-chance agreement, the Administrative Judge concluded that the Board did not have jurisdiction over his new appeal. (p. 2)

Melendez argued to the federal appeals court that he did not engage in disrespectful conduct and therefore the Board did have jurisdiction over his removal appeal. The court was not buying, however. It pointed out that the evidence—which Melendez admitted to and agreed amounted to being “flirtatious” on his part–showed he had made comments to coworkers such as “what race are you? “are you married?; “girl, don’t make those sounds so early in the morning”; “what size pants to do you wear?” (p. 4)

The Board and now the court concluded that the agency had met its burden of proving this was disrespectful conduct. (p. 4)

When a federal employee signs a last-chance settlement agreement, it is important to understand the consequences. “Last chance” means exactly what it says.

© 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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