Failure to Disclose Conviction Leads to Removal Without Appeal

By on February 22, 2012 in Court Cases, Current Events with 5 Comments

A recent court case (Younies v. Merit Systems Protection Board, CAFC No. 2011-3031 (12/5/11)) describes the following scenario:

A probationary employee (Younies) failed to disclose on his application for a supervisory EO Specialist position with the Department of Labor that he had previously been convicted of a crime. Younies checked “no” on the application both when he submitted the form originally and again when the agency asked him to sign his application when he reported for duty.

The agency ran a background check on Mr. Younies and lo and behold it turned up that he had been convicted of disturbing the peace under California law and had served one-year probation. The DoL met with Younies to do some fact-finding. He admitted, both at the meeting and in a written statement he submitted to the agency the following day that he had been arrested but insisted he had never been convicted, calling his sentence “informal probation.” He explained that because the incident had been five years before, he sort of forgot about it. He helpfully provided the criminal case number.  He also provided a copy of a letter from his attorney indicating, “Mr. Younies had pled guilty to Disturbing the Peace…” and including a copy of the “Order for Relief in his case. (Opinion, pp. 1-3)

That Order specifically stated, “This order does NOT [emphasis in original] relieve the defendant of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office….” (p. 3)

Most HR specialists would tell you that Mr. Younies was in deep trouble for failing to disclose the prior conviction both in the two applications and in the fact-finding meetings with the agency where he insisted he had not been convicted of anything.

Not too surprising that the agency terminated Younies during his probationary period. He appealed to the MSPB only to be told that the Board lacked jurisdiction because the DoL did not rely on pre-probationary reasons for his termination. (p. 2)

On appeal to the Federal Circuit, Younies argued that because he was dismissed for lack of candor on his employment application that it did amount to “pre-probationary” reasons and therefore the MSPB had jurisdiction and should not have thrown his case out.

The appeals court has sided with the MSPB, pointing out that the agency in its termination letter had specifically cited the second application that Younies signed once he reported for work. (p. 4) It obviously muddled the record that the agency had gone on to state that Younies’ “failure to disclose your probation, beginning in 2004 on the [application form] is not in accordance with the truthfulness that management expects of its employees.” (p. 4)

This gave Younies’ room to argue that indeed the agency had relied on a pre-probationary act—his initial employment application—in terminating him and therefore the MSPB should take jurisdiction. Further, the agency would have been required to have given him advance written notice, the right to reply, and a final written decision in order to terminate Younies, which it apparently had not done in his case. Thus, whether Younies was terminated for “pre-“ or “post-“ probationary activities became an important distinction.

Fortunately for the agency and unfortunately for Mr. Younies, the appeals court was willing to view his signature on the second application after he was hired as separate and apart from his initial application submitted before hire. The court simply did not buy Younies’ contention that the two signatures were in effect one and the same and therefore both constituted “pre-probationary” actions. (p. 6)

One lesson to glean from this case is the importance of ensuring that applicants sign their applications again when they report for duty.

Younies v. Merit Systems Protection Board

© 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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