This appeals court decision involves a removal action originally taken by the Air Force in 2008, but cancelled and redone in 2012. The court has now sustained the agency’s action but the price was steep. (Howard v Department of the Air Force (CAFC No. 2016-1364 (nonprecedential) 2/27/17))
Sherman Howard was an auditor at Randolph Air Force Base when he received a notice of proposed removal in September 2008, citing four reasons:
- Misuse of government resources stemming from a forensic analysis of Howard’s work computer that found 377 items involving his outside teaching position, most of which were done on official time.
- Conducting outside employment during paid duty hours related to the same facts as the first reason.
- Threatening bodily harm had to do with telling a team leader to “watch yourself” and causing her to be apprehensive and fearful of him.
- Failure to report outside employment involved “several” outside positions that Mr. Howard held but did not receive administrative approval for outside employment.
The procedural fun started when the deciding official cited these reasons, as well as “Mr. Howard’s ‘extremely low production’” as an aggravating factor in reaching his decision. That last item was not in the notice of proposed removal. Nevertheless, the Administrative Judge for the MSPB affirmed Howard’s removal as reasonable. The AJ also cited Howard’s poor performance as a factor in sustaining his removal. (p. 2)
The full MSPB concluded that the agency and the AJ erred in considering Howard’s performance in their decisions since it was not listed as a reason in the notice of proposed removal (NPR). As a quick fix, the Board factored out performance and re-analyzed the case, concluding that removal was reasonable based on the four reasons actually cited in the NPR. (pp. 2-3)
Howard filed his first court appeal. However when pertinent case law came out affecting the matter, the agency petitioned the court to remand to the MSPB for another go. (p. 4)
At this point, MSPB ruled against Air Force, stating it had violated Howard’s due process by considering the performance productivity factor that had not been cited in the NPR. MSPB ordered Howard’s removal be cancelled and Mr. Howard was reinstated in 2012 with full back pay, interest and benefits. (p. 4)
The Air Force issued a new notice of proposed removal to Mr. Howard listing the same four charges as well as “lack of work production over several years” as an additional reason. Howard’s second removal took effect in March 2013. An AJ for MSPB affirmed Howard’s removal in September 2015; Howard elected to skip a request for full Board review; and he again filed with the federal appeals court. This time he did not fare so well.
That court now rules that Howard’s arguments as to why his removal should be overturned are “unpersuasive,” and it affirmed the decision of the MSPB. The court brushed aside his argument that removing him a second time for the same reasons amounted to double jeopardy.
As for the argument that poor performance should not be a sustained reason for his removal, the court ruled that there was ample evidence to support it. The proposing official testified that his productivity was “woefully short” given that Howard produced two “product equivalents” for four years, which was below the norm of 12-13 product equivalents for that time period, or 83% below agency standards for two of those years and 50% below for the other two years.
The critical lesson of this case for supervisors and practitioners is to make absolutely sure the final decision syncs with the notice of proposed removal. The final decision notice is not the time to improvise or throw in extraneous new considerations.
