Disrespectful Language and Failure to Follow Instructions Leads to Removal

An employee of the Dept. of Veterans Affairs was fired for failing to follow a supervisor’s instructions and then used “disrespectful language and made inappropriate statements.” The employee argued that she was a whistleblower and that the agency had committed procedural error but, after all appeals, remains a former federal employee.

A four-year employee at the VA’s Fresno facility, fired by the agency following clashes with her supervisor, has lost her appeal before the federal court. (Bruce v. Department of Veterans Affairs, C.A.F.C. No. 2008-3266 (nonprecedential), 1/9/09)

Bruce was a medical technician at the Central California Health Care System. The agency based its removal case on incidents involving Bruce and her supervisor. Bruce failed to follow her supervisor’s instructions not to take a patient into a workout room that was set aside for staff. Bruce then used “disrespectful language and made inappropriate statements” to her supervisor and made similar statements later to her co-workers about her supervisor. (Opinion p. 2) The agency wasted no time removing Bruce.

Bruce appealed to the Merit Systems Protection Board. She challenged the three charges brought against her—failure to follow instructions, using disrespectful language, and making inappropriate statements. She also argued the penalty was unreasonable as well as raised the affirmative defenses of whistleblowing and harmful procedural error. (p. 2)

The Administrative Judge held a hearing. Based on the evidence, the AJ concluded that the agency had met its burden and sustained all three charges against Bruce. The AJ ruled against Bruce on each of the affirmative defenses. Finally, the AJ found removal appropriate, noting the behavior was serious, there were no mitigating factors, and Bruce had a history of similar misconduct that had resulted in separate prior disciplinary actions for using disrespectful language and making inappropriate statements. (p. 3)

Bruce took her case to the Federal Circuit where she tossed out several arguments as to why the agency and the Board were wrong. None of them carried the day with the appeals court. The court was unimpressed by Bruce’s generalized argument that her supervisor’s testimony was false and that the AJ should have accepted Bruce’s version of the facts. (p. 5) As to her argument that it was wrong to consider the prior disciplinary actions, the court sided with the Board. (p. 6)

In short, Bruce’s removal 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.