Defining “Fired” From Any Job

An Air Force employee who was fired for giving false information on her background investigation questionnaire contended she had answered correctly as she understood she was only to report being fired from a federal job–not the times she was fired by a private sector employer. After review by a court, she remains fired from the Air Force job.

A former Air Force civilian employee, fired for giving false information on her background investigation questionnaire, was not able to convince the appeals court to overturn her removal. (Wolfbauer v. Office of Personnel Management, C.A.F.C. No. 2008-3173 (nonprecedential), 7/10/08)

When Wolfbauer went to work for the Air Force, she completed a “Declaration for Federal Employment.” In answer to a question whether in the previous 5 years she had been fired, quit after being told she would be fired, or left any job by “mutual agreement because of specific problems,” she answered “no.” The Office of Personnel Management did a background investigation and concluded that this answer was false since it had found that at least four employers had discharged Wolfbauer in the preceding five years. (Opinion, p. 2)

OPM found Wolfbauer to be unsuitable and told the Air Force to remove her. Wolfbauer’s story is that the question was ambiguous and she had answered truthfully as she understood it: Since the form title talked about federal employment, she argued that she had answered truthfully since the previous firings had not been by a federal employer. (I am not making this up.) (p. 2)

The Merit Systems Protection Board did not buy Wolfbauer’s argument, and sustained her removal. She took her case to the Federal Circuit Court of Appeals, but met the same result. The court points out that Wolfbauer undercuts her own argument in her written submissions that admit she was “let go” by one former employer since she was not “getting the whole of th[e] job.” She further wrote in her appeal papers that another employer had dismissed her “with the excuse that I was not doing a good enough job.” (p. 3)

The court goes on to patiently point out that the question at issue specifically requests whether the individual had been discharged from “any job.” (p. 3) The court sums up the bad news for Wolfbauer: “We discern no ambiguity in question 12 and thus affirm….” (p. 3)

In short, she now has one more firing to disclose the next time she fills out this or a similar form.

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.