Did I Mention Those Prior Disciplinary Actions?

A federal employee did not mention a previous job “due to an oversight” although, while in the previous job, he apparently received counseling letters, reprimands, suspensions and put on a temporary probationary status. He was fired by an agency and appealed where his case went into federal court for resolution.

A Transportation Security Administration employee, fired in connection with his omission of material information on his SF-86 (Questionnaire for National Security Positions), has failed to persuade first the Merit Systems Protection Board and now the appeals court to overturn his removal. (Nance v. Department of Homeland Security, C.A.F.C. No. 2008-3126 (nonprecedential), 11/5/08) According to the court’s decision, the key facts in the case were pretty much undisputed at the MSPB hearing.

When Nance was employed in 2002, he filled out the required SF-86. He failed to list a previous 8-plus-years of employment with a county sheriff’s office. And, when the background investigator asked him about his form, Nance apparently opted not to mention this previous employment. (Opinion pp. 1-2)

A few years later, Nance applied for a promotion and on his resume he revealed the sheriff’s office position to the agency in his resume. The agency checked this information against his previous SF-86 and found the discrepancy. An investigator confronted Nance with it, and he admitted that he had failed to reveal the prior position "due to an oversight on my part." He further admitted he had been reassigned in this previous job, and "while not technically a disciplinary action, it has negative career implications. No other disciplinary actions." (p. 3)

But, when the TSA investigated further it found that in this prior job Nance had received 2 letters of counseling, a reprimand, a temporary pay reduction, a second reprimand, two separate suspensions, and finally placement in a one-year probationary status with close supervision. (p. 3)

The agency fired Nance for being "less than candid" in filling out the SF-86 and in responding to the agency background investigator. He appealed to the MSPB, but the Administrative Judge affirmed Nance’s removal. (p. 3)

Nance took his case to the Federal Circuit Court of Appeals, but he had no luck there either. He remains 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.