Here’s a case involving a Human Resource Specialist fired by the Army for failing to mention he had been fired from a previous government job. (Seda v. Department of the Army (CAFC No. 2012-3173, nonprecedential, 2/8/13)
According the court’s opinion, Mr. Seda was fired by Social Security Administration although the reasons for this are not explained. Nevertheless when Seda applied to Aberdeen Proving Ground, Maryland, he failed to disclose the firing. Recall that the Federal employment application has a “declaration” that asked whether the applicant within the previous five years has been fired or quit a job by mutual agreement or after being told firing was in the works. Mr. Seda checked “no.”
After being hired as an excepted service HR Specialist, Seda apparently thought he should have been hired at a higher grade/pay commensurate with his experience and complained to his new supervisor. This led the agency to look into his past experience a little deeper and the Army learned about Seda being fired from an earlier job. Not too surprisingly, the Army terminated Seda during his probationary period for misrepresenting this on his application form. (Opinion pp. 1-3)
Somewhere between learning he was about to be fired by the Army and the effective date, Seda complained about his treatment to both his Congressman and the Office of Special Counsel. The Army eventually decided that Seda had in fact completed his probationary period, so it rescinded the probationary termination and issued a notice of proposed removal following adverse action procedures. Following the final decision of removal, Seda appealed to the Merit Systems Protection Board. Among other things he argued the Army had retaliated against him because of his whistleblowing to a Congressman and OSC. The MSPB did not buy it and affirmed Seda’s removal. (p. 3)
The appeals court has sided with the Army and MSPB and has affirmed Seda’s removal. The court agreed with the MSPB that Seda did not contest the fact of his firing by Social Security and did not provided a “credible explanation regarding how and why he answered question 12 in the negative.” (p. 4) The court found no reason to overturn the Army or MSPB on the penalty of removal. Finally, the court did not buy Seda’s argument that the action was reprisal for whistleblowing: “…there is no evidence of either a protected disclosure or that any such disclosure was a contributing factor in Seda’s removal…” (p. 7)
This case demonstrates that it’s hard to set up a whistle blower reprisal defense after the fact. Also, it’s not a good idea to try to cover up a past firing, especially when the employee is the one whose complaint leads the agency to look harder than it apparently did in the first place.