Potential for Violent Behavior Warrants Removal

A federal employee who had been arrested and convicted of assault for biting off a portion of her neighbor’s thumb found herself in a confrontation with her supervisor. The employee argued in court that her past work record should not be used in determining the penalty.

A Philadelphia Tax Examining Clerk was unsuccessful in persuading the Federal Circuit to overturn her removal based on assaulting her neighbor, her conviction for the assault and for inappropriate behavior toward her supervisor. (Wormley v. Department of the Treasury, C.A.F.C. No. 2006-3413 (nonprecedential), 3/13/07) The facts are taken from the court’s opinion.

Wormley’s supervisor requested a meeting with her to discuss her performance. Wormley refused and “became belligerent” with the supervisor. Meanwhile, during a routine background investigation of Wormley, the agency discovered that she had been arrested and convicted of assault for biting off a portion of her neighbor’s thumb during an argument. (Opinion, p. 2)

The agency removed Wormley based on the three instances of misconduct as well as taking into account three other instances of misbehavior in her work record.

Wormley appealed to the Merit Systems Protection Board. She did not dispute the first two instances of misconduct involving the assault on her neighbor and her conviction for that assault. She took issue with the third specification of misconduct involving her confrontation with her supervisor. However, the administrative judge found that the agency had proved its case and that Wormley’s removal promoted the efficiency of the service and was a reasonable penalty. (p. 3)

Wormley appealed to the Federal Circuit. She argued, among other things, that the agency should not have used her past work record in determining the penalty. The court disagreed. As for her argument that removal was not an appropriate penalty, the court had this to say: “The Board correctly found that the removal penalty was reasonable considering Ms. Wormley’s potential for behaving violently and that her job involved working in close proximity to her co-workers and dealing personally with the general public.” (p. 4)

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.