A Customs and Border Protection Officer at JFK Airport, fired for a prohibited association with an illegal alien, could not convince the appeals court to reinstate her. (Olmos v. Department of Homeland Security, C.A.F.C. No. 2010-3009 (nonprecedential), 2/4/10)
Ms. Olmos worked 15 years as an Immigration Inspector when her job was transferred to the new Department of Homeland Security in 2003. The new department had a provision in its standards of conduct that prohibited employees from associating "with individuals or groups who are believed or known to be connected with criminal activities. This limitation on association covers any social, sexual, financial, or business relationship with…a suspected or known criminal, or an illegal alien, subject to being removed from the United States of America." (Opinion, p. 2)
Just in case this provision was not entirely clear, the agency held a "muster" on the rules in mid 2005 at which Ms. Olmos was present. (p. 2)
Olmos began dating Rafael Vanegas only to learn in the fall of 2005 that he was an illegal alien. She married him anyway.
Vanegas returned to his native Colombia a year later to work on getting an immigrant visa. Olmos began submitting forms to her agency to get her new husband’s immigration status changed. The agency put two and two together and eventually charged Olmos with "knowingly associating with an illegal alien," proposing her removal. The final agency decision took into account the relevant factors, including Olmos’ years of service and her four prior suspensions for various infractions. The decision was removal.
Olmos appealed to the Merit Systems Protection Board. In her testimony, Olmos admitted that she knew Vanegas was an illegal alien before she married him and that her actions would cause her problems with the agency. She claimed that the union president and two CBP supervisors had told her that marrying such an individual was allowed under the agency rule. She also argued that other employees had married illegal aliens without being disciplined; however, she was unable to name names other than of people who had married aliens who were in the country legally. (pp. 2-3)
The Administrative Judge was unmoved, noting that Olmos had never consulted the Human Resources office on the issue even though she clearly understood the rules; that the union president was not authorized to speak for the agency; and the supervisors were not expert in personnel matters. (pp. 3-4) While the penalty was "harsh," the AJ found it to be "within the limits of reasonableness in light of her four suspensions, her lack of remorse, and no evidence of disparate treatment." (p.4)
Ms. Olmos took her case to court, but has fared no better. She argued that she did not have notice of the rule prohibiting her from marrying an illegal alien. Not so concluded the court. The standards of conduct are on the agency website, Olmos attended the "muster" on the topic of inappropriate associations not too long before her marriage, and she herself said she realized she was in "big trouble" when she found out Vanegas was an illegal alien. As for her arguments that other employees had married illegal aliens without repercussions, and that others had advised her it was okay to marry, the court agreed with the AJ that she failed to prove these points. (pp. 6-7)
Finally, as to penalty, the court—obviously swayed by the four previous suspensions–did not agree that removal was too harsh. The suspensions occurred from 1999 through 2006, and each was increasingly longer than the previous one. Pointing out that the deciding official found these previous suspensions showed a "severe lack of judgment" by Olmos, and that the AJ cited her insistence that she had not done anything improper and her lack of remorse, the court sided with the agency and the MSPB. (p. 7)
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.