Fired Fed Had Multiple Reasons for Not Going to Work But Stays Fired
By Susan Smith
Wednesday, November 14, 2007
A law enforcement employee at Homeland Security, fired for failing to report to work on several occasions, was unable to persuade an arbitrator and the federal appeals court to overturn the removal. (Hawkins v. Department of Homeland Security, U.S. Immigration and Customs Enforcement, C.A.F.C. No. 2007-3213 (nonprecedential), 11/13/07)
Prior to her removal, Hawkins had been demoted because of her reckless behavior involving handling firearms. Her supervisor subsequently had to set up a special schedule stemming from her unsatisfactory attendance record. (Opinion, p. 2)
The final straw was when Hawkins left the job after her previously approved one-week leave had been cancelled due to the imminent arrival of Hurricane Katrina. When the agency realized that she had left for vacation anyway, it put Hawkins in a leave-without-pay status. Adding insult to injury, Hawkins did not return from leave until the day after the previously scheduled leave period. Additionally, over the next several weeks, Hawkins had several instances of failure to report for duty without authorized leave. (pp. 2-3)
The agency removed Hawkins for her unauthorized absences. Her appeal went to arbitration. The arbitrator sustained the removal, finding that mitigating circumstances Hawkins raised in her defense were insufficient to overcome the agency's decision to remove her. (p. 3)
Hawkins took her case to the Federal Circuit Court of Appeals. The court has now affirmed the arbitrator's ruling.
In her appeal, Hawkins challenged the arbitrator's witness credibility determinations since the arbitrator had found the agency witnesses more credible than her witnesses. The court points out that in doing so, Hawkins bears "a heavy burden….[since] credibility determinations are ‘virtually unreviewable' by appellate courts." (p. 5; citation omitted) Her "conclusory assertions to the effect that the arbitrator erred" do not meet the burden. (Id.)
Hawkins also argued legal error in that the arbitrator allowed the agency to consider her previous discipline when making its decision to fire her. The court finds that "Homeland Security did not improperly factor such conduct into its removal decision without providing Ms. Hawkins notice…" (pp. 5-6)
In short, Ms. Hawkins removal by Homeland Security is affirmed.
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