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Joking With a Knife Leads to Removal

By Susan Smith

Friday, May 29, 2009

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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.

A fired explosives operator at the Army's Pine Bluff Arsenal in Arkansas could not convince the appeals court to overturn the Army and the Merit Systems Protection Board. (McGuire v. Department of the Army, C.A.F.C. No. 2009-3060 (nonprecedential), 5/26/2009)

The facts are taken from the appeals court decision.

Mr. McGuire was charged with threatening a female co-worker with a knife. He pulled out a pocketknife, opened the blade, and told his co-worker "he would cut the buttons off her overalls." (Opinion, p. 2). In October 2006, the agency issued a letter removing the employee from his position and he filed an appeal.

McGuire admitted to the knife incident, but claimed he was just joking. (p. 2) The co-worker testified that she felt threatened and did not take it as a joke. Unfortunately for McGuire, there were three witnesses who testified that the co-worker was "visibly upset" after the incident. (p. 2)

The MSPB administrative judge found the co-workers' testimony to be more credible than McGuire's. The AJ concluded that the elements of making a threat had been proved by the agency. The Board sustained McGuire's removal. (p. 2)

McGuire took his appeal to the Federal Circuit. He has found that the court pretty much defers to the Board's witness credibility determinations, calling them "virtually unreviewable." (p. 3) Because McGuire offered no reason to the court as to why it should review the unreviewable, the court has upheld his removal. He remains fired.

This case should serve to remind that it is pretty dumb to flash a knife at a co-worker, even if in jest. Rightly so, government agencies pretty much do not find such behavior funny and will tend to react quickly and seriously.

 

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Readers' Comments

  • No Admin Assistant you are correct if you value a long career you best just keep to yourself for numerous reasons that I have seen in 35 years. Humor is an excuse that will come back to haunt you!...
    Posted: June 11, 2009 8:10 AM
  • My husband always has a pocket knife with him. It comes in handy for many things such as opening the packaging of new windshield wipers. The one thing he has NEVER done is joke around with it....
    Posted: June 2, 2009 8:47 AM
  • There is appropriate humor and there is inappropriate humor, and many times humor appropriate in a particular context is not appropriate in another (duh). Humor correctly used can actually improve the products we supply to our customers. I believe that it is obvious the the attempt an "humor" i...
    Posted: June 1, 2009 9:56 AM

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