Expunging Personnel Records and Creating a Public Record Through Appeals
By Susan Smith
Friday, October 30, 2009
A former Army employee who tried to set aside a settlement agreement stemming from his firing for making threats against co-workers had no luck with the Merit Systems Protection Board and now the federal appeals court. (Benfield v. Department of the Army, C.A.F.C. No. 2009-3198 (nonprecedential), 10/9/09)
The facts summarized below are taken from the appeals court's decision.
When Benfield, a Visual Information Specialist, ran into his employment problems he had worked at the U.S. Army Management Staff College at Fort Belvoir for some sixteen years. When his facilities manager reported that Benfield had "threatened to ‘shoot' or ‘blow out the brains' of four specifically identified AMSC employees," the agency moved quickly. The Fort Belvoir installation commander issued a bar order that prevented Benfield from entering the base, a criminal investigation was initiated, and a removal action was initiated for "disruption of the workplace." (Opinion p. 2)
Within about 5 weeks of the reported threats made by Benfield, he was removed from his job. He appealed to the MSPB and eventually the case was settled with approval of the Board's Administrative Judge who entered the settlement into the record. Benfield agreed to withdraw his appeal and complete a counseling program. Once he finished the program, the Army would rescind the removal for cause "from his official personnel records and replace it with an SF-50 indicating resignation for personal reasons effective on the same date as the removal." (p. 3)
The agency also agreed to "expunge from [Benfield's] personnel file any and all related documentation stating that [Benfield] was removed for cause," and provide a "neutral employment reference" when asked by prospective employers. (p. 3)
Benfield does not dispute that the agency did purge his personnel files, replaced the removal SF-50 with one showing resignation, and instructed that he be given a neutral employment reference. However, he sought enforcement of the settlement agreement from the Board because the Army did not lift the order barring him from the base. He argued that the agreement required the Army to purge its files on his debarment from the base and to end the bar order. (p. 4)
The MSPB disagreed, ruling that the agency's obligation under the agreement only related to the personnel files. The federal appeals court agrees with the Board.
The court finds the Board properly ruled that the agreement "plainly and unambiguously" spelled out the Army's obligations and the Army had done what it was supposed to. (p. 4) The court further points out in its decision that "during negotiations the Bar Order was addressed, discussed, and specifically excluded from the Settlement Agreement." (p. 5)
It is ironic that this former employee fought so hard to expunge agency records and to gain access back onto the base that he was willing to "go public" by filing an MSPB and court appeal. Now there is a court decision in the public domain that any prospective employer can readily find.
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