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"Flirtatious" Behavior and a Last Chance Agreement Lead to Removal

By Susan Smith

Thursday, October 30, 2008

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Susan McGuire Smith spent most of her 26-year federal government career with NASA, first at NASA Headquarters Office of General Counsel and then at Marshall Space Flight Center, serving as Chief Counsel there for more than 14 years. Her expertise is in government contracts, ethics, and personnel law. Ms. Smith has a J.D and a B.A. degree from the George Washington University. Her publications include Practical Ethics for the Federal Employee.

Yet another fired federal employee found himself tripped up by a last-chance agreement that he signed to avoid a previous discipline case against him. This time it was a supply technician with the Department of Veterans Affairs. (Melendez v. Department of Veterans Affairs, C.A.F.C. No. 2008-3207 (nonprecedential), 10/15/08) Below are the facts as explained in the court's opinion.

The first time around, VA removed Melendez, charging he had used government computers to send "obscene material" and to place "inappropriate graphic images" on his computer. (Opinion pp. 1-2) On appeal before the Merit Systems Protection Board, Melendez and the agency settled the case by signing a last-chance agreement. The agency reinstated him and in return Melendez agreed that "any action on his part that would support the proposal of any type of disciplinary action will result in the reinstatement of the removal…" and in this event he waived his appeal rights to challenge the reinstated removal action. (pp1-2)

When the agency invoked the agreement several months later and removed Melendez for disrespectful conduct, he appealed to the Board. Unfortunately for him, because he had waived his appeal rights in the last-chance agreement, the Administrative Judge concluded that the Board did not have jurisdiction over his new appeal. (p. 2)

Melendez argued to the federal appeals court that he did not engage in disrespectful conduct and therefore the Board did have jurisdiction over his removal appeal. The court was not buying, however. It pointed out that the evidence—which Melendez admitted to and agreed amounted to being "flirtatious" on his part--showed he had made comments to coworkers such as "what race are you? "are you married?; "girl, don't make those sounds so early in the morning"; "what size pants to do you wear?" (p. 4)

The Board and now the court concluded that the agency had met its burden of proving this was disrespectful conduct. (p. 4)

When a federal employee signs a last-chance settlement agreement, it is important to understand the consequences. "Last chance" means exactly what it says.

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Readers' Comments

  • IT Specialist: I think you missed my point. The fact that we have to even OFFER a "last chance" agreement to an employee is a symptom of government's ineptness in dealing with problems in the workplace. Again, I'm quite sure that in private industry, this step wouldn't even be considered, much les...
    Posted: November 4, 2008 2:12 PM
  • When I was in my 20s, a lot of my single girlfriends would deliberately wear rings on their left finger so guys would leave them alone. Especially at work. Wearing a ring does not mean you are married any more. It can also mean you want to be left alone....
    Posted: November 4, 2008 1:44 PM
  • there was nothing wrong with his behavior e.g. asking 'are you married', how else would you know if you didn't ask ? Maybe management should be congradulated for removing such a vicious personality...
    Posted: November 4, 2008 8:05 AM

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