It’s the Lying Under Oath That Always Gets You

A DHS law enforcement officer, removed for her lack of candor in several agency inquiries, failed to win her job back in arbitration so she took her case to court.

Ms. Moore had held various law enforcement jobs at Department of Homeland Security (DHS) over her 19-year career there, most recently as an Immigration Enforcement Agent (IEA) when she came under investigation. (Moore v Department of Homeland Security (CAFC No. 2018-1985 (nonprecedential) 7/9/19)

Two inquiries looked into and concluded that Moore failed to follow required travel procedures on several occasions and she failed to pay the balance on her agency travel credit card. A third investigation involved whether she had violated agency rules in providing her firearm to someone outside the agency. (Opinion p. 2)

When asked about her failure to follow travel authorization and voucher procedures, Moore replied that “management…here had never shown [her] that it was ever important…they never said a word about it until [she] was served [with] the [performance work plan].” (p. 3)

On top of that when asked by her boss if she had paid her balance on the agency-issued credit card, she said she had when in fact it was not paid for several more weeks. (p. 3)

DOT removed Moore for lack of candor. She opted to take her appeal to arbitration (presumably filing a grievance through the negotiated grievance procedure with the union). After a full hearing with six witnesses called and numerous documents admitted into evidence, Arbitrator John M., Donoghue denied Moore’s grievance and sustained her removal. He noted “the essence of a law enforcement officer’s duty is veracity…The Agency’s loss of faith in Ms. Moore’s ability to perform the essential elements of her job is not misplaced….” (p. 3) He concluded Moore had been “untruthful when she [said],,,that she had never been told that it was important that she follow travel procedures…” and in stating she had paid her credit card. (p. 4)

Moore took her case to the appeals court where she argued it was improper to remove her for “lack of candor” when the agency could not put together a case for removal based on the travel vouchers, credit card payments, and firearms issues. The court simply said to this argument “We disagree.” (p. 4)

The court goes on to state, “Although removal is a severe penalty, it is within the Arbitrator’s discretion so long as the decision ‘reflects a reasoned concern for the factors appropriate to evaluating a penalty. …This is precisely the situation here.’” (p. 6)

As gleaned from the court decision, apparently the agency had offered Ms. Moore a last chance settlement agreement that would have suspended her for 10-days presumably in return for her agreeing to waive appeals. She argued to the court that this was “illegal and amounted to extortion.” (p. 5) The court reiterated its previous decisions that “disparate treatment is not shown by comparing a penalty imposed by an agency with one emanating from a settlement agreement.” (p. 5)

Satisfied that the Arbitrator had done his job properly in weighing the all of the evidence, the relevant “Douglas Factors” in determining the appropriate penalty, the court concluded that his decision to sustain her removal was supported by substantial evidence.

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.