Frosted Windshield Leads to Twice Fired

Here’s a case that is notable just because of its interesting facts. Gerhard v. Office of Personnel Management, (CAFC No. 2012-3187 , nonprecedential, 2/11/13)

How does a foggy windshield lead to OPM declaring an individual ineligible for government employment? The appeals court decision explains. Read on.

When Ms. Gerhard successfully applied for the position of Nurse Practitioner with the Pawhuska Health Center in Oklahoma, she checked “no” on Question 12 of the application form—the question that asks whether the applicant has within the preceding five years been fired.

Unlucky for her the agency learned that she had been fired less than two years ago by the Department of Health and Human Services Indian Health Service facility located in Poplar, Montana. Apparently while still a probationary employee at DHHS, Gerhard, while driving a government vehicle, hit a pedestrian. A police report was filed and indicated that Gerhard had admitted to the officer that the windshield had been covered with frost during the accident. DHHS terminated Gerhard for unsafe operation of a government vehicle. (p. 2)

Fast forward to Gerhard checking “no” on Question 12 thus failing to disclose her probationary firing. She was asked to explain. She submitted a statement describing the accident and this is how the court relayed her explanation: “…. she had been in her car defrosting the front window, …the car had not been moving, and … upon exiting the car she noticed a woman crawl out from under the car.” (p. 3) So, I guess the accident was not her fault?

Following the agency’s investigation, OPM stepped in and in May 2011 declared Gerhard ineligible for the Nurse Practitioner position. The charges stemmed from the original accident, her dishonesty in later statements about it and her false statement on Question 12. OPM also cancelled Gerhard’s eligibility and debarred her from government employment until January 2014.  (p. 3)

Gerhard unsuccessfully appealed to the Merit Systems Protection Board and now tries her arguments on the appeals court. Her arguments that OPM should have taken into account that she had not been given a ticket for the accident and that she did not understand that being “released during her probationary period” was not a firing did not persuade the appeals court.  The court further did not buy Gerhard’s disingenuous argument that DHHS had been negligent in not discovering the earlier firing sooner causing her to incur expenses to relocate to the DHHS position so she should somehow be given a pass. The court’s exact words were “without merit.”

Gerhard stays fired—again.

This case and one reported about the same time both involved covering up a previous firing. Cases like these raise the question how do these people actually make it to the government’s employment rolls in the first place without the previous firing being detected during the application process? Am I the only one who is surprised that they get that far before agencies find out their prize new employee was fired by another federal agency within the last few years? Has the Federal HR screening process changed? Does anyone care?

© 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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