Removal of Air Force Nurse Upheld Despite “Discomfort With Harshness” of the Penalty

In an Air Force case, a registered nurse is fired and stays fired despite the court’s “discomfort with the harshness” of the removal penalty.

In spite of its “discomfort with the harshness” of the removal penalty, the appeals court has sustained the firing of an Air Force registered nurse at Lackland AFB. (McGachey v. Department of the Air Force, C.A.F.C. No. 2009-3304 (nonprecedential), 8/3/10, Opinion p. 9)

The Air Force brought three charges against nurse McGachey, two were sustained on her appeal to the Merit Systems Protection Board, and those charges were enough to support the agency’s removal decision, according to the Board and now, apparently reluctantly, the appeals court.

The first sustained charge was “failure to follow leave procedures and absent without leave.” (p. 3) It stemmed from an incident where McGachey called in to request sick leave. Instead of talking to the designated contact to get the required permission, she left word with the night unit coordinator that she would not be in. The coordinator told McGachey that she needed to get approval from the element leader, but McGachey disagreed and hung up. She did not leave contact information, did not ask for a call back, did not call back herself to request permission for the leave, and simply showed up for work the next business day. (pp. 2-3)

The second sustained charge was for “misuse of government property.” The agency opened an investigation when told that McGachey was using an agency computer and printer for union business. The investigation concluded that indeed she had violated the agency’s policy on computer use by downloading and modifying union materials on her computer profile. (p. 3)

In deciding on her removal, the agency took into account prior discipline—a letter of reprimand for AWOL and discourteous conduct and a 10-day suspension for sleeping on duty and failing to carry out assigned duties.

McGachey argued to the court that the AWOL charge should not have been sustained because she followed the procedures spelled out in the union’s collective bargaining agreement with the agency. The court disagreed, pointing out that the night coordinator was not the official designated to act for the supervisor and had no authority to approve sick leave. The court was bothered by McGachey’s failure to try to contact the element leader on duty, her not leaving contact information as required by the leave policy, and her failure to contact her supervisor “as soon as feasible,” as required by the agency’s policy. (p. 11)

As for the misuse of government property, the court found there was plenty of evidence to support the charge. The investigating official testified in detail as to the information found on McGachey’s computer, and McGachey admitted she had stored the information on her computer. Her argument was that the collective bargaining agreement (CBA) permitted use of agency computers for the purpose. The court countered that the CBA did not permit the kinds of documents that she had used the computer for. Further, there were two computers designated for this purpose. Yet, McGachey used her computer rather than the designated equipment. In short, the court found there was substantial evidence to support the misuse of equipment charge.

While the court had no problem affirming the charges, it apparently choked a bit on the penalty, calling it “quite harsh for the conduct at issue, particularly in light of the administrative judge’s dismissal of the charge of refusal to carry out assigned duties.” (p. 9) But, because the agency made very clear in its decision that it would have removed McGachey even for the two charges that were sustained, the court sustains the removal…”despite our reservations about the severity of the penalty…” (p. 9)

If all of this hand wringing was not enough, one of the three judges on this unanimous decision felt compelled to write an addendum to the decision, called “additional views.” Circuit Judge Gajarsa , while “in complete agreement with the conclusions and the judgment reached in this case…” felt compelled to “note and emphasize” his concern “about the severity of the penalty and the fact that each of the charges were classified….with a penalty range of reprimand to removal even for the first offense.” Mysteriously he concludes from this that it “seems to indicate that more than a mere personnel action was the underlying focus of the proceeding…It is important for an agency not to be biased towards its personnel or allow unstated reasons to be the cause and purpose of the removal action. But this court may not substitute its opinion in personnel matters…even if some might consider the action egregious.” (pp. 10-11)

So, if it says reprimand to removal for the first offense in the table of penalties that is somehow suspect?

Practitioners who are used to seeing agency tables of penalties with this kind of range of penalty for the first offense on many listed offenses, may be equally baffled by this observation.

At the end of the day, Ms. McGachey has lost her appeal. Her firing is upheld.

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.