The firing of a Navy Department civilian employee stemming from his improper use of his government computer has just passed muster with the Federal Circuit Court of Appeals. (Winters v. Department of the Navy, C.A.F.C. No. 2007-3106 (nonprecedential), 7/11/07)
Winters was a GS-11 Electronics Specialist at the Naval Surface Warfare Center in Crane, Indiana. Unfortunately for him, the Navy had to access his computer in order to respond to a Freedom of Information Act request. When the agency’s computer people found “unusual” documents on Winters’ computer, they notified his boss. It would seem Winters had more than 250 pages of unauthorized materials on a website he had set up using his government computer. This website said Winters was a Navy employee, talked about his job duties, and also talked about his unhappiness with his job and co-workers. (Opinion, p. 2)
NSWC policy required employees to avoid putting materials out on the computers that “reflects adversely on the Department of the Navy.” (p. 2)
Winters was fired for poor judgment, wasting an excessive amount of government time, misuse of government equipment, and making a threat against a supervisor in a statement on his website. The Merit Systems Protection Board sided with the agency and sustained the firing. Winters took his case to court, but found no more sympathy there.
Arguing the case on his own, Winters tried to convince the court that Navy had obtained the evidence against him in violation of the agency’s contract with its computer company (Huh?) The court first noted that the contract was not even introduced into the record to support this argument, then indicated the obvious–that the contract had no bearing on the matter since Winters was not a party to the contract. (p. 3)
He also tried to argue that the agency’s FOIA procedures were violated in gaining evidence against him. In quickly dismissing this argument, the court pointed out patiently that these regulations governing an agency’s process for gathering information to respond to a FOIA request are not for the protection of agency employees. (p. 3)
Next up was Winters’ argument that the evidence against him was not first-hand and should only have been offered by expert witnesses. Not so, said the court. The employees who testified did have sufficient expertise and personal knowledge of the computer training Winters received, “the voluminous amount of non-work-related material discovered on Winters’s computer, and the log file compiled…indicating that Mr. Winters accessed his website ‘at all hours of the day on many occasions.'” (p. 3)
Skipping over several other minor arguments quickly disposed of by the court, we turn to Winters’ argument that he was not on notice of the agency’s rules on computer usage. This was equally unpersuasive to the court: “…the record contains substantial evidence demonstrating that Mr. Winters knew of the agency’s computer policy, including an email reminder regarding the policy that was sent to Mr. Winters and evidence of his attendance at four computer training sessions where the agency’s computer policy was presented.” (pp. 4-5)
Finally, Winters took issue with the Board’s conclusion that he had “questionable” potential for rehabilitation. Disagreeing with his argument, the court called Winters’ conduct “serious and prolonged,” and indicated that the material on Winters’ website “demonstrated a deep-seated antipathy toward his colleagues and supervisors.” (p. 5)
In short, the court declined to overturn the agency and the Board, and Winters stays fired.
