The federal appeals court has upheld the firing of an air traffic controller for “indirectly threatening a co-worker” and “claiming unauthorized overtime,” even though he was also found to have engaged in protected whistleblowing that had contributed to the decision to remove him. (Morgan v. Department of Transportation, C.A.F.C. No. 2007-3201 (nonprecedential), 11/24/08, p. 1)
Morgan worked at Edwards Air Force Base at the High Desert Terminal Radar Approach Control facility. He found himself in a meeting with a supervisor and his union rep after Morgan signed up for 45 minutes of unauthorized overtime. The meeting was called to discuss the unauthorized overtime as well as to give Morgan a final decision suspending him for 5 days for a previous unrelated incident. After this session, Morgan was enraged and said he was going to kill Frank Ceruti, one of his supervisors with whom Morgan had a “long-term history of conflict.” (p. 2) Morgan later denied making the threat but the agency relied on eyewitness testimony to remove Morgan for the threat as well as claiming unauthorized overtime. (p. 3)
On appeal to the Merit Systems Protection Board, the removal action was sustained. The Board’s Administrative Judge concluded from the evidence that Morgan had indeed threatened to kill Ceruti, that Morgan had claimed the 45 minutes of overtime without proper authorization, and that removal was reasonable under the circumstances. The full Board and the appeals court affirmed the AJ’s findings and conclusions. (p. 3)
As to Morgan’s claim that his removal was in retaliation for whistleblowing and therefore violated the Whistleblower Protection Act of 1989, the MSPB indeed found that Morgan had engaged in protected whistleblowing for his disclosure of false statements made by a co-worker in a report as well as his identification of a safety issue arising from a management order. Further, the Board found that Morgan’s protected whistleblowing were “contributing factors in his removal.” (p. 6)
These conclusions shifted the burden to the FAA to prove by clear and convincing evidence that it would have removed Morgan had there been no protected whistleblowing by him. The Board found that there was such evidence and that Morgan’s removal was justified notwithstanding his protected whistleblowing. (p. 6) Morgan argued to the appeals court that the Board erred in finding there was sufficient evidence to conclude that FAA would have removed him anyway.
The court has affirmed the Board’s handling of the whistleblowing aspect of Morgan’s appeal, citing “the strength of the evidence supporting removal…” and “[i]mportantly, the evidence submitted in support of the serious charge of threatening to kill a co-worker….” (p. 7)
In short, Mr. Morgan struck out with the Federal Circuit Court of Appeals in his bid to get his removal overturned.