It’s My Life and I’ll Do What I Want (But Not as a Federal Employee)

An employee with Homeland Security refused to follow orders, attend counseling sessions or to sign off on a letter of instruction. She got fired and went to court to try to save her job.

A Department of Homeland Security employee, fired for refusing a direct supervisory order on several occasions to conduct interviews of alien applicants even though their application paperwork was incomplete, lost her bid to win her job back. (Exum v. Department of Homeland Security, C.A.F.C. No. 2011-3037 (nonprecedential), 10/20/2011)

Exum was an immigration services officer with the DHS U.S. Citizenship and Immigration Service. Her job was to adjudicate applications from aliens seeking to become lawful permanent residents of the United States. The adjudication required that Ms. Exum conduct an interview with each applicant she processed and required that the applicants bring specific documents with them to the interview. (Opinion p. 2)

Exum apparently decided she should not conduct any interview if the applicant had not brought the required documents. Her supervisors did not agree. They instructed her verbally and in writing on several occasions to go ahead and do the interview and get the missing documents through a “Request for Evidence” process. “Ms. Exum, however, refused to comply with these instructions…” (p. 2)

The agency tried to correct the problem by putting Exum on a “performance improvement period.” She was given a written explanation of the requirements to correct her performance and she was directed to attend counseling sessions to help her improve her performance. Ms. Exum refused to sign off on that instruction letter and she did not attend any of the counseling sessions. She also continued to refuse to interview any applicant that did not have all the required documents at the interview session. (p. 3)

Eventually the agency terminated Exum’s employment for refusing to follow instructions. Ms. Exum appealed through the grievance process and her case was heard before an arbitrator. The arbitrator denied her grievance and sustained the agency’s decision to remove her. (p. 3)

The appeals court has now upheld Exum’s removal. It held that the arbitrator’s decision was supported by substantial evidence, there was a “nexus” between Exum’s misconduct and the efficiency of the service, and that the penalty was appropriate. On the last point, the court points out that the agency was willing to work with Exum to correct her performance problems and the court agreed with the arbitrator that this willingness “shows that ‘[m]anagement did not resort to the ultimate penalty in the first instance.’” (p. 7)

It did not work in Exum’s behalf that she “showed no willingness to conform to Agency expectations.” (p. 7) As the court noted, “…even the Union acknowledged that Ms. Exum was ‘stubborn and inflexible.’” (p. 7)

The 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.