The Farm Service Agency of the Department of Agriculture does not have to reinstate a fired Human Resources Assistant thanks to a recent appeals court decision. (Harrison v. Department of Agriculture, C.A.F.C. No. 2010-3150 (nonprecedential), 12/15/10. The facts are taken from the court’s opinion.
Diana Harrison apparently went too far when she made disturbing statements to co-workers about her supervisor. She told one fellow employee that she knew where her supervisor lived and “could have her jumped.” (Opinion p. 2) To another she said that her supervisor had gone into Harrison’s office and “touched her paperwork…” adding that she “wished [her supervisor] was dead.” (pp. 2-3)
When FSA uncovered that Harrison had failed to reveal on her employment application and security forms that she had prior tax delinquencies, and that she had worked out a settlement with a previous agency employer (Federal Emergency Management Agency) to undo her removal by that agency, it compounded Harrison’s problems. (p. 3) FSA had previously reprimanded Harrison for improper disclosure to co-workers of performance review and bonus information for seven agency employees. (p. 4) This time, the agency removed Harrison for “conduct unbecoming” and for “providing inaccurate information on federal documents.” (p. 2)
Harrison unsuccessfully argued on appeal to the Merit Systems Protection Board that the previous reprimand violated her rights as a whistle-blower. The Administrative Judge (AJ) concluded that she had failed to show a protected disclosure or that those who fired her were even aware of the facts surrounding the reprimand. (p. 5)
As to the statements about her supervisor, Harrison claimed she had never made them and her co-workers were lying. The AJ did not buy Harrison’s argument, finding the co-workers’ testimony more credible than Harrison’s. (p. 3)
Finally, the AJ reviewed the evidence and found that Harrison had not answered truthfully on her employment documents about her previous employment with FEMA. The question that tripped Harrison up read in pertinent part: “During the last 5 years, ….did you quit after being told that you would be fired, did you leave any job by mutual agreement because of specific problems…?” (p. 3)
Harrison had answered “no” to the question and the AJ concluded that this answer was false given that she had resigned from FEMA by mutual agreement. (p. 4)
After the MSPB refused to overturn her firing, Harrison turned to the appeals court where she rehashed her arguments. She did not fare any better in court. The court affirmed the
MSPB. It backed FSA’s determination that Harrison’s “threats directed against her supervisor were unprofessional and inappropriate….and … adversely affected the work atmosphere.” (p. 8) As for her misrepresentations on employment documents, the court agreed that they “raised doubts about her trustworthiness.” (p. 8)
This case reflects a scenario that many argue happens all too often in the federal sector. An
employee is fired by one agency, reaches a settlement agreement that wipes out the removal action in favor of a mutually agreed to separation, and goes on to another agency. Problems get passed along, especially if the “gaining” agency does not or cannot get information on the employee’s history. FEMA’s gain was FSA’s loss?
