26 Years of Federal Service + Disrespectful Conduct = Removal
By Susan Smith
Friday, November 9, 2007
A firefighter at the Naval Air Station, Whiting Field, Milton, Florida, could not persuade the appeals court to overturn his firing for disrespectful conduct toward a supervisor. (Pierce v. Department of the Navy, C.A.F.C. No. 2007-3275 (nonprecedential), 11/7/07)
Pierce had 26 years of service including his prior military service. The charge of disrespectful conduct stemmed from two incidents that occurred several hours apart on the same day. Apparently Pierce had a problem with duty assignments that had been posted by his captain. He complained "at length" about his assignment in a disrespectful "loud and abrasive" manner. The executive officer at the Naval Air Station Pensacola was the deciding official. He found the charges to be supported and removal to be warranted. (Opinion p. 2)
The Merit Systems Protection Board held a hearing on Pierce's appeal. The Administrative Judge, calling basis for the charges "confused and contradictory," and did not find all of the facts to be supported by the evidence. (Pierce v. Dep't of the Navy, No. AT-0752-06-0723-I-1, at 3, 6 (M.S.P.B. Dec. 22, 2006)) Nevertheless, weighing the evidence "in the light most favorable to [Mr. Pierce], and with special reference to the testimony of his own witnesses…" the AJ concluded "it is plain that he engaged in disrespectful conduct on both occasions.." (p. 2)
Pierce raised retaliation as a defense before the AJ, citing his alleged whistleblowing as well as a grievance he had filed concerning agency staffing and leave practices. He pointed to a letter he had written to a congressman as well as reports Pierce had filed with the Air Force Civil Engineer Support Agency. However, the AJ found—assuming these were protected activities—that there was no evidence linking Pierce's removal and these activities. As to Pierce's argument that removal was out of line for the offense, the AJ disagreed, citing the "particular need for respect for authority among firefighters" as well as Pierce's prior disciplinary record for similar offenses. (p. 3)
Pierce took his case to the appeals court. Among other things, he argued that the Board's decision is not supported by substantial evidence. Rejecting this argument, the court noted that "Mr. Pierce's own witnesses described the disrespectful nature of his actions though supporting Mr. Pierce's version of the events in the particulars." (p. 4)
Pierce also argued that the Florida unemployment compensation proceedings added up to substantial evidence that he had not been disrespectful since the state reviewing body stated in its decision that "it was not shown that [Pierce] was intentionally disrespectful to his superiors or that he acted inappropriately." (p. 4) The appeals court brushes this argument aside since credibility determinations are the prerogative of the MSPB administrative judge and they "will not be set aside by this court unless the determination is ‘inherently improbable or discredited by undisputed evidence or physical fact.'" (p. 5, citation omitted)
One by one the court rejected Pierce's other disagreements with the Board's decision and affirmed Pierce's removal.
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