The Federal Circuit recently issued an opinion in a case involving the removal of an engineer by the Department of the Air Force. (Truxes v. Department of the Air Force, U.S.C.A.F.C. No. 05-3386 (non precedent), 10/14/06)
Mr. Truxes was an Electronics Engineer in the Software Engineering Division at Hill Air Force Base. The notice of proposed removal charged him with misrepresenting hours spent on assigned work and failing to carry out assigned work.
He did not respond to the notice, the agency deciding official adopted it, and Mr. Truxes appealed to the Merit Systems Protection Board. (Opinion, p. 2)
Following a hearing before an AJ, the Board sustained the removal. (Truxes v. Dep’t of Air Force, DE-0752-04-0118-I-1 (M.S.P.B. Oct. 21, 2004 Board Decision)) He went to court where he argued that the Board’s decision to sustain the two charges was not supported by substantial evidence.
He was no more successful with the court than he was at the Board. One interesting argument he raised was that he did not intentionally fail to complete the project or intentionally misrepresented his hours. The court made short work of the argument relating to intent, pointing out that the charge of failing to carry out the work as directed did not carry an intent requirement. The agency carried its burden on this charge by establishing that a clear instruction was given, it was reasonable to expect the employee to complete the assignment within the period allowed, and he failed to do it. “Thus, Mr. Truxes’s intent is immaterial as to at least one of the two charges.” (Opinion p. 3)
The court refused to interfere with the Board’s credibility determination which gave the weight of the evidence to agency witnesses whose testimony showed that Mr. Truxes was a competent journeyman engineer; that the assignment was “a moderate to simple task that could easily be accomplished in 30 days;” that his work product showed only minor changes to the software that should have taken no more than a day to do; that he never raised a flag indicating he was having problems with the project; and a new GS-7 engineer who was given the project to do when Truxes failed to complete it was able to finish it successfully with 40 hours of work. (Opinion p. 4)
As summarized by the court in affirming the Board’s decision, “[T]he record suggests that he did not complete the project within the allotted hours and could not reasonably have spent the 170 hours he billed to the project. In addition, the record supports the inference that Mr. Truxes overstated the hours spent on the project. After all, the junior engineer took only 40 hours to finish the project.” (Opinion p. 4)