Do Not Mess With the IRS

The Internal Revenue Service demonstrates a low tolerance for serious employee misconduct. In this recent case, it took the agency less than two months to get this employee off its rolls. (Spearman v. Merit Systems Protection Board (C.A.F.C. No. 2013-3053 (nonprecedential), 8/8/13))

Mr. Spearman was an IRS Information Technology Specialist. On June 29, 2011, he entered a plea in state court admitting to passing a forged public document. (The court decision does not explain exactly what he forged.) Within three weeks the agency proposed Spearman’s removal. It leveled three charges: conduct unbecoming, making false statements, and failing to timely pay his taxes in a particular tax year. After considering Spearman’s reply, the agency ordered up his firing as of August 23, 2011. He asked if he could resign instead, the agency agreed, and Spearman was gone as of August 26, 2011.

Almost six months later, Spearman appealed to the Merit Systems Protection Board, arguing he had been forced to resign and that the agency took advantage of his learning disability in the process. (Opinion p. 3)

The MSPB held it did not have jurisdiction over the appeal since Spearman had made no showing “to even suggest” that the agency’s reasons for removing him could not be sustained. (p. 3)

Spearman took his case to the appeals court, which has now sided with the MSPB.

The opinion cites the court’s long-standing position that a resignation to avoid being removed is considered voluntary unless the employee can show that the agency could not support its reasons for removing him. Just because the employee faces two unpleasant alternatives—being fired or having to resign—it is not enough to establish the resignation was coerced. (p. 5)

Spearman v. MSPB

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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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