Was This Federal Employee Too Clever by Half?

A federal employee removed for poor performance refused to accept or sign for the notice of termination. On appeal he argued harmful error in that the agency had not served him with proper notice. See how the appeals court deals with this ploy.

A recent appeals court decision considered whether an employee’s steadfast refusal to accept or sign for his notice of termination by the Internal Revenue Service led to harmful error that required reversal of his performance based removal. (Weathersbee v Department of the Treasury (CAFC No. 2016-2628 (nonprecedential) 1/12/17)) These facts are taken from the court’s opinion:

A Revenue Officer with the IRS, Weathersbee handled tax delinquency cases. When he was rated unsatisfactory in four of five critical elements, IRS followed the textbook process for notifying, correcting, and eventually removing him for poor performance. First came the 60-day counseling plan to let him improve performance of those four critical elements. When that did not work, the boss told Weathersbee he was still unsatisfactory in performing these critical elements, citing 47 examples of his failure to meet minimum performance standards. Moreover, Weathersbee was given 24 specific recommendations for improving his performance and set up weekly meetings to review his progress and mentor him. (pp. 2-3)

Weathersbee refused to participate, indicating he was not paid enough “to listen to [my supervisor’s] assessment of my performance.” (p. 3)

The next level supervisor proposed Weathersbee’s removal based on performance, he replied in writing and the Area Director signed a decision terminating Weathersbee, sustaining the reasons and specifications laid out in the proposed removal. The agency sent this letter by three methods: first class mail, first class certified mail, and UPS overnight delivery. (p. 3)

At a hearing held by the Merit Systems Protection Board Administrative Judge, Weathersbee argued that the agency failed to deliver the notice to him and this amounted to harmful error requiring that his removal be overturned. The AJ rejected this argument, finding that the facts demonstrated that Weathersbee sent a “global direction” to the mail processing center that all mail from the IRS should be refused; therefore the two requiring his signature bounced back to the agency. The regular mail letter, however, was not returned as undeliverable. Further, Weathersbee appealed his removal to the MSPB less than a month after the removal letter was sent, supporting the AJ’s finding that he had in fact received the removal notice. (p. 5)

After losing at the MSPB, Weathersbee tried his argument with the appeals court. Pointing out that he had not rebutted the agency and MSPB’s presumption that the notice sent by regular mail had indeed made its way to Weathersbee, the court found the Board’s decision was supported by substantial evidence. Agreeing with the MSPB that his failure to receive two of the letters was not due to anything the IRS did, the court concluded that there was no harmful error.

Bottom line: Mr. Weathersbee’s tactic of refusing to accept or sign for mail from the IRS, thus ducking receipt of the notice of termination, did not pan out for him in the end.

This case is a good study of how to process a performance-based removal, and how to counteract the employee who tries to set up a defense by refusing to sign for the termination notice. It is worth a read for practitioners or supervisors confronting similar issues.

Weathersbee v. Treasury (2016-2628)

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.