Telling Employee to Continue Working Can Be Dangerous

A federal supervisor who told an employee to work an extra 30 minutes ended up in a scuffle with the employee and the employee was fired. The employee argued his case all the way to federal court but stays fired.

It’s generally not a good idea to refuse to follow a supervisor’s order or to attack a supervisor—a lesson learned by one part-time letter carrier. (Fleming v. United States Postal Service, U.S.C.A.F.C. No. 06-3048 (non-precedent), 4/11/06)

Mr. Fleming was ordered by his supervisor to work an extra half-hour. He refused to do it. A scuffle ensued.

The Postal Service terminated his employment. The deciding official found both offenses—the physical contact and the refusal to follow an order—to be serious matters warranting removal. The deciding official also took note of prior discipline for aggressive behavior, including intimidation of customers on his route, as well as for insubordination. (Opinion, p. 2)

Fleming appealed to the Merit Systems Protection Board. In his testimony before the Administrative Judge, Fleming admitted that he had refused to comply with the supervisor’s order. But, he argued that working the extra half-hour would cause him to exceed his 8-hour workday requirement.

The AJ did not buy this argument because the facts showed that the extra half-hour would not have caused the 8-hour limit to be exceeded. This charge was sustained. (Opinion, pp. 1-2)

As for the charge of physical abuse of the supervisor, Fleming’s story was that the supervisor had initiated the contact. The supervisor testified that Fleming “thrust himself” against the supervisor.

Other agency witnesses corroborated the supervisor’s version. As a result, the AJ found the supervisor’s testimony more credible and sustained this charge as well.  The AJ examined the deciding official’s analysis on the appropriateness of removal as the remedy and concluded that removal was justified. (Opinion, p. 2)

When the full Board declined to review the AJ’s decision, it became the final administrative decision. Mr. Fleming went to court. The court concluded that there was substantial evidence to support the Board’s decision on both counts, and it affirmed. (Opinion, p. 4) Mr. Fleming stays fired.

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.