Joking With a Knife Leads to Removal

A fired explosives operator at the Army’s Pine Bluff Arsenal in Arkansas could not convince the appeals court to overturn the Army and the Merit Systems Protection Board. (McGuire v. Department of the Army, C.A.F.C. No. 2009-3060 (nonprecedential), 5/26/2009)

The facts are taken from the appeals court decision.

Mr. McGuire was charged with threatening a female co-worker with a knife. He pulled out a pocketknife, opened the blade, and told his co-worker "he would cut the buttons off her overalls." (Opinion, p. 2). In October 2006, the agency issued a letter removing the employee from his position and he filed an appeal.

McGuire admitted to the knife incident, but claimed he was just joking. (p. 2) The co-worker testified that she felt threatened and did not take it as a joke. Unfortunately for McGuire, there were three witnesses who testified that the co-worker was "visibly upset" after the incident. (p. 2)

The MSPB administrative judge found the co-workers’ testimony to be more credible than McGuire’s. The AJ concluded that the elements of making a threat had been proved by the agency. The Board sustained McGuire’s removal. (p. 2)

McGuire took his appeal to the Federal Circuit. He has found that the court pretty much defers to the Board’s witness credibility determinations, calling them "virtually unreviewable." (p. 3) Because McGuire offered no reason to the court as to why it should review the unreviewable, the court has upheld his removal. He remains fired.

This case should serve to remind that it is pretty dumb to flash a knife at a co-worker, even if in jest. Rightly so, government agencies pretty much do not find such behavior funny and will tend to react quickly and seriously.

 

© 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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