How Not To Fire A Federal Employee

An agency proposed to fire an employee and then added another charge when he made a threatening comment. The court sends the case back to the MSPB for further review to see if the removal is justified even if one charge is thrown out.

In Zwagil v. General Services Administration (U.S.C.A.F.C. No. 05-3088 [non-precedential], 2/1/06), the appeals court bounced the agency’s removal action against a police officer with the Federal Protective Service back to the Merit Systems Protection Board (MSPB).

The removal was based on two charges: (1) deliberate refusal to carry out assigned duties where the safety of persons and/or property is involved, and (2) making a threatening comment in the workplace. The agency issued a proposed removal with only the first charge. But when the employee received the notice, he told a co-worker he was going home for the day or otherwise “I will probably end up hurting someone.” When his supervisor got wind of this, he amended the removal notice to include the second charge. (Opinion p. 3)

By the time the dust settled on Mr. Zwagil’s appeal at the MSPB, the AJ had sustained the first charge, did not sustain the second one (concluding that his statement was not meant to be threatening), but nevertheless concluded that removal was appropriate even for the one charge, given the circumstances. (p. 4)

Mr. Zwagil went to the Federal Circuit arguing that the first charge should be thrown out also, but, if it remained sustained, then removal was not a reasonable penalty. The court decision scores one for the agency in that it affirms the Board on the surviving charge, but scores one for Zwagil by sending the case back to the Board to re-consider the removal penalty.

The court was apparently swayed by his contention that the agency might have imposed a lesser penalty had it sustained only the one charge…an interesting result considering the agency initially proposed his removal based on the original charge alone. The court: “…rather than independently determining the appropriate penalty, the administrative judge should have first determined whether the record contained any indication that the agency would have imposed a lesser penalty based only on the sustained charge.” (p. 8)

The decision instructs the Board that if it finds that the agency would have imposed a lesser penalty if only charge one was sustained, then it is to give the agency the chance to institute that lesser penalty. “On the other hand, if the Board finds that there is no indication in the record that the agency would have imposed a lesser penalty if it had considered only the sustained charge, the Board may uphold the penalty imposed if it concludes that the penalty was not in excess of the maximum reasonable penalty for the sustained offense.” (p. 9)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.