The case is Hernandez v DOD (CAFC No. 2019-1817 (nonprecedential) 1/17/20). The facts are taken from the appeals court opinion.
Hernandez worked for DODDEA (Department of Defense Education Activity) as a teacher at the Yokosuka Naval Base, Japan. When he was involved in a crash near the base, he was arrested for DUI by Japanese police. When notified of the DUI, the agency and Hernandez worked out a “last chance agreement” (LCA). Under its terms Hernandez received a 30-day suspension and he agreed to avoid misconduct for three years. (Opinion p. 2)
After entering into the LCA, Hernandez pled guilty to criminal charges in Japanese court as the result of his DUI. He was convicted and given a suspended sentence. Based on local Navy Instructions, Hernandez was removed state side as required for a criminal conviction in Japanese court. This meant Hernandez could not report for his teaching duty in Japan, which in turn led to his removal for his inability to report. (pp. 2-3)
A “Catch-22” that Hernandez challenged in his appeal to the Merit Systems Protection Board (MSPB). The MSPB judge affirmed, disagreeing with Hernandez’ argument that both the suspension (and the LCA resulting from it) and removal were based on the same misconduct. The AJ found the suspension was based on the DUI, but the removal was based on his inability to report for his job. There was no obligation on the agency to maintain Mr. Hernandez’ employment by finding him a different job. (p. 3)
The appeals court has now sustained Mr. Hernandez’ removal. It declined to call a removal action a “constructive suspension,” as Hernandez argued it should. It further declined to rule that DODEA had punished him twice for the same DUI offense. The court agreed with MSPB that the suspension and removal were based on different misconduct. The suspension was based on the DUI. The removal was based on his inability to show up for his job in Japan as the result of being kicked out of Japan. (p. 5)
The court also waived off the argument that the LCA required the agency to employ Hernandez for 3 years despite his future misconduct. (p. 6)
In short, Mr. Hernandez is out of a job.
Before an employee signs an LCA it is important to fully understand what the agency can and cannot do with future misconduct.