Mama Bear's Efforts to Save Her Son's Job Added Up to Nepotism

Cases involving charges of nepotism are relatively few and far between. But in this recent appeals court decision, that is apparently the offense that led to the U.S. Patent and Trademark Office to propose demotion of a supervisor to a non-supervisory position.

In Nguyen v. Merit Systems Protection Board (CAFC No. 2015-3144 (nonprecedential) 5/6/16), Ms. Nguyen put in her retirement papers rather than be demoted for trying to prevent her son, a probationary patent examiner, from being dismissed during his probationary period. She asked two directors to have her son transferred to their departments to head off his termination.

The agency decided to demote Ms. Nguyen in grade and take away her supervisory duties, alleging her actions added up to prohibited nepotism, calling her actions “unacceptable and inappropriate.” (p. 3).

Following the demotion decision, a less than glowing performance appraisal, and curtailment of her access to supervisory functions in the agency’s computer systems, Ms. Nguyen went by the human resources office and got retirement papers. She then apparently informed her bosses that she would accept a thirty-day suspension in lieu of the demotion and would, in return, waive any appeal rights. She further said that if the agency refused, she was prepared to retire. She ended up making her retirement effective one day before the effective date of her demotion. (p. 4)

Nguyen then appealed to the MSPB, arguing that she was forced to retire. The Board’s Administrative Judge ruled that she failed to support her claim. The full Board agreed, finding that she “has not made allegations that, if proven, could show that a reasonable person in her circumstances would have viewed retirement as the only viable alternative.” (p. 5)

Nguyen took her case to the federal appeals court, but to no avail. The court agreed with MSPB that it has no jurisdiction to hear an appeal from what amounts to a voluntary retirement. Absent evidence showing that her retirement was forced, Ms. Nguyen has no standing to appeal. The court frowned upon the two instances in which Nguyen tried to save her son’s job, pointing out that if she was so sure the agency could not support the nepotism charge, she should have fought it on appeal from her demotion. As to her argument that she did not have enough time to weigh whether to let the discipline take effect or submit her retirement papers, the court did not agree that the facts added up to improper coercion. In fact, her supervisors had told her to take her time in deciding whether to retire, telling her the decision was hers, and hers alone. Citing prior decisions, the court opined that the “imminence of a less desirable alternative does not render involuntary the choice made.” (p. 9)

In short, Nguyen, “faced with a reduction in grade, voluntarily decided to retire rather than appeal…” (p. 9)

Given previous cases on involuntary resignation or retirement, the result her is no surprise.

Nguyen v. MSPB (2015-3144)

© 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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