The Third Time is the Charm

A former Navy employee argued, in effect, that he did his job well and that removal was an unduly harsh penalty. The Merit Systems Protection Board thought removal was appropriate after the agency had imposed three disciplinary actions. The case then moved into federal court.

The Navy fired a civilian employee for unprofessional conduct and failure to obey in its third disciplinary action against him in his seven years on the job. The employee lost his appeal to the Merit Systems Protection Board and now the appeals court has affirmed his removal. (Koch v Department of the Navy, C.A.F.C. No. 2009-3106 (nonprecedential), 6/4/2009)

Mr. Koch had a rough seven years with the Navy. Three years after joining the agency, Koch was given a 2-day suspension for failure to report for duty. Two years later the Navy proposed to remove Koch for failure to remain on watch, unprofessional conduct and failure to obey. This second disciplinary action resulted in a settlement that reduced the penalty to a 30-day suspension along with Koch’s agreement to take anger management counseling. (Opinion pp. 1-2)

A year later, Koch had altercations with two officials onboard his ship. He yelled at his ship’s purser because she could not immediately help him renew his expired common access card. The purser testified that she felt “physically threatened” by Koch since he is a big man and “kept yelling.” (p. 2)

A couple of days later Koch had another confrontation, this time with the ship’s Chief Mate. According to testimony, Koch cursed, jabbed his finger and only left the Chief Mate’s office after being asked to do so a third time. (p. 2)

The Navy removed Koch, citing him with unprofessional conduct and failure to obey. Koch’s appeal to the MSPB got nowhere, so he took his case to court.

The appeals court has now concluded that the Navy proved its case with substantial evidence to support its charges. The court made short shrift of Koch’s argument that removal was too harsh, pointing out that Koch had acted disrespectfully and inappropriately in both instances, that such conduct could not be condoned in the close environment aboard ship, and that this was Koch’s third disciplinary scrape in his relatively short tenure with the Navy. (p. 3)

In short, the court concluded that the Navy’s removal of Koch was not unreasonable.

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.