The Third Time Isn't a Charm

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The Internal Revenue Service has successfully defended its
decision to remove a revenue agent with a history of missing work without
approval. (Johnson v. Department of the
, C.A.F.C. No. 2011-3058 (nonprecedential), 6/22/11).

Johnson had both a five and twenty day suspension on his
record for AWOL and failure to follow instructions. The third time around, the
agency removed him for the same reasons.

Johnson’s supervisor ordered him to review three audit cases
if not closed out by a certain date and to refer a fourth case for audit.
Johnson did not dispute the supervisor’s testimony that these four tasks would
take less than five minutes to complete. Nevertheless, he failed to complete
any of them by the end of the three-week period that his supervisor had
specified. Further, he was absent for 2 days during the three-week time frame
without approved leave. Johnson claims the absence was approved sick leave.
However, he had failed to submit the required medical documentation and instead
asked that the leave be annual leave. No dice, said the supervisor who insisted
that he provide the required medical documentation. Therefore, the two-day
absence was chalked up to AWOL. (Opinion pp. 1-3)

After an unsuccessful appeal to the Merit Systems Protection
Board, Johnson took his case to the appeals court. Brushing aside Johnson’s
arguments that the agency had failed to prove its case, the court concluded
that there was substantial evidence that he failed to follow directives and
that he was AWOL. On the challenge as to the reasonableness of removal as the
penalty, the court sided with the agency and the MSPB, citing John’s “history
of not following directives and being AWOL…part of a clear pattern showing that
Mr. Johnson felt ‘no need to follow orders unless he agree[d] with them.’” (p.

It is often said that it’s impossible to fire a federal
employee. Here’s one case showing how it’s done in a way that the MSPB and the
court will uphold.


© 2020 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


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.