Was This Fed Fired Because of Military Leave or Lying on Employment Application?

What was the reason for firing this federal employee? He argued it was because he was called up for military duty. The agency said it was because he had involvement with convicted felons in his outside employment.

A fired Federal Air Marshal Service employee in Los Angeles tried unsuccessfully to overturn his removal by arguing first to the Merit Systems Protection Board and then the federal appeals court that by firing him the agency had violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) (Kitts, Jr. v. Department of Transportation, C.A.F.C. No. 06-3069 (non-precedent), 7/17/06).

Here are the facts as related in the court’s opinion.

Kitts was a Deputy U.S. Marshal when he applied for and was hired as a Civil Aviation Security Specialist with the Department of Transportation. However, Kitts’ application left out the fact that he was under three separate pending investigations by the Marshal Service for fighting, making false statements, and concealing evidence involving handguns and drugs. In fact, the Marshal Service had placed Kitts on administrative leave pending the outcome of these investigations.

In answer to the question about having ever been fired or left a job under a cloud, Kitts answered “no” to the DOT. In response to questions requiring disclosure of self-employment, Kitts failed to mention that he was self-employed in a business involving hiring convicted felons. Once employed by DOT, Kitts further compounded his problems by not living up to his obligation not to have involvement on the outside with convicted felons. (Opinion, pp. 1-2)

These omissions caught up with Kitts. The DOT Inspector General, acting on a complaint about Kitts, uncovered the false information on the application and the continued consorting with convicted criminals in his outside business. He was fired.

On appeal to the Board, and later before the court, Kitts argued that the real motivation behind his firing was his use of military leave and subsequent orders to active duty, since he was called up just about the time the agency sent a notice of proposed removal.

Nice try, but it did not work.

The facts showed that the agency had decided to remove Kitts before receiving word of his call up to active military duty. Further, as the court stated, “…the Agency’s decision to terminate Mr. Kitts was made because Mr. Kitts lied on his employment application, and hid critical information while employed with the Agency.” (page 5)

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.