Romance, Performance Appraisal, and Getting Fired at USDA

The Department of Agriculture has won a court decision that challenged the removal of a scientist who had “romantic relationships” with three female subordinates. (Robacker v. Department of Agriculture, C.A.F.C. No. 2009-3289 (nonprecedential), 7/9/10) The facts are taken from the appeals court decision.

Robacker had worked for the agency as a research entomologist for 25 years when he ran into trouble.

Over the years he apparently got involved with three different women who worked for him. When one of these ladies threatened to report him for sexual harassment, Robacker went to the agency’s Outreach Diversity and Equal Opportunity Office for counseling. One can only guess that he was trying to head off the looming harassment complaint. In any event, he explained his personal relationships with the three women. He also explained that he had worked out an arrangement with one of the women that she would receive the exact same performance rating each year that Robacker himself received. (Opinion pp. 1-2)

Not surprisingly, Robacker’s revelations caused the agency to look into the matter. Eventually Agriculture proposed Robacker’s removal for conduct unbecoming. Robacker elected to retire to avoid the inevitable. (p. 2)

Robacker appealed to the Merit Systems Protection Board, lost, and took his case to the appeals court. He argued, “consensual romantic relationships between employees are not contrary to any official regulation or policy…” thus the agency had no basis to remove him. (p. 3)

Using phrases like “unprofessional, prevented him from adequately fulfilling his supervisory role…and caused his superiors to lose confidence in his judgment,” the court made short work in affirming the MSPB and the agency’s decision to remove him. (p. 3)

The court also brushed aside Robacker’s argument that the penalty far outweighed the offense, finding Agriculture’s decision to fire him “not unreasonable.” (p. 3)

 

Robacker v. Agriculture 09-3289

© 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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