Taking Leave, Making A Movie, and Filing Appeals

A federal employee argued that her resignation was involuntary and therefore an adverse action. The case went back to court a second time after the employee, who had been working on a movie set with her husband while supposedly caring for him in his dying days, appealed the denial from MSPB.

The Federal Circuit has issued its second decision involving a Homeland Security employee who tried to make the case that her resignation was involuntary and therefore an adverse action. (Davis v. Department of Homeland Security, C.A.F.C. No. 2008-3252 (nonprecedential), 12/18/08) This time around, the court has affirmed the Merit Systems Protection Board’s decision rejecting Davis’ appeal.

Some readers may recall the Customs and Border Patrol employee who got crosswise with the agency when she took Family and Medical Leave to care for her terminally ill husband, who, as it turns out, was not ill at all but was directing a movie. In fact, Davis was working with her husband on the movie set while supposedly caring for him in his dying days. (For more factual details, see our write-up on the earlier court decision, or take a look at the decision itself.)

In its earlier decision, the appeals court remanded the case to the MSPB, directing the agency to resolve inconsistencies between its administrative decision and the ruling of the Equal Employment Opportunity Commission on Davis’ sexual harassment charge stemming from the same facts. The court made clear that its remand "does not necessarily require that the Board reach a different result…." (Opinion, p. 2)

The MSPB apparently took that assurance to heart. On the second go-around, the Board once again ruled against Davis, dismissing her claim of involuntary resignation. (p. 1) After looking at the EEOC decision, the Board concluded that the incident cited by Davis as sexual harassment had occurred more than a year before her resignation and would not have caused a "reasonable employee" to have resigned. (p. 2) Further, the EEOC’s finding that Davis had involuntarily resigned was "dicta and not binding on the Board." (pp. 2-3)

Davis took her case back to the appeals court. This time, however, the court has sustained the Board’s decision, pointing out that the Board had done exactly what the court had instructed it to do "and reached the same result." (p. 3)

Pointing out that the issues before the EEOC and the MSPB had not been identical and that the involuntary resignation issue had not been before the EEOC, the court found that there was substantial evidence supporting the Board’s dismissal of Davis’ claim. (p. 5)

Short of convincing the U.S. Supreme Court to take this up for review (not likely to happen), Ms. Davis’ resignation stands.

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.