Military Veteran Attorney Challenges Termination By SSA

May 19, 2020 10:51 AM , Updated June 1, 2020 3:07 PM
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McGuffin v Social Security Administration (2017-2433 (11/7/19) involves a Uniformed Services Employment and Reemployment Rights Act (USERRA) challenge to termination of a military veteran. The court’s opinion contains detailed facts. Here are the key points.

McGuffin was hired by Social Security Administration (SSA) in Raleigh, North Carolina, in its Office of Disability Adjudication and Review. He was an attorney advisor and his duties entailed researching and drafting decisions that were then handed off to an SSA Administrative Law Judge (ALJ). Without re-hashing the complex rules applicable to his hiring, the key factor is that after serving one year he would, as a military veteran, attain civil service status subject to all the required adverse action procedures. In contrast, a non-veteran coworker hired at the same time would serve a 2-year probationary period.  The facts demonstrate that agency officials were made well aware that they had one year to terminate McGuffin due to his veteran status. Facts also demonstrate that a few days before his year was up, the bosses rushed a decision to terminate McGuffin for “failure to demonstrate” the ability to do the job notwithstanding several compliments from some of the ALJs he wrote decisions for. (Opinion pp.2-4)

McGuffin appealed to the Equal Employment Opportunity Commission (EEOC) alleging disability discrimination. During the EEOC hearing, McGuffin elicited testimony from agency witnesses that there had been a rush to terminate his employment before he attained civil service status and that his military status was a factor since it meant he only faced a one-year probation period.  After his unsuccessful EEOC appeal, McGuffin took his case to the Merit Systems Protection Board (MSPB). There he argued that SSA had violated USERRA. The MSPB ruled against him, so he took his argument to the federal appeals court.

The court concluded that Mr. McGuffin had met his burden under USERRA. This meant that SSA had to prove it terminated McGuffin for a valid reason. Where the MSPB found that SSA proved it terminated because he was a poor performer who failed to show he met the requirements of “productivity, timeliness and quality after a year of training,” the court begged to differ, finding that the evidence does not support that conclusion. (p. 19)

The court opined that the agency applied McGuffin to a higher standard than that it was supposed to apply during the first year, namely it held him to meeting his “fair share” of work on cases. In fact the bosses seemed “fixated” on McGuffin not being able to meet his fair share even though the personnel advisors cautioned them that this was an evaluation factor that was not applicable during the first year. In fact, McGuffin’s evaluation report a few months before his termination indicated that he had successfully performed in the two work requirements applicable during the first year on the job, as evidenced by several favorable comments from various ALJs that he supported. (p. 19)

The court has now reversed the MSPB, found that USERRA was violated, and remanded for the Board to determine an appropriate remedy. Moreover, the court ordered the government to pay Mr. McGuffin’s costs. (p. 20)

© 2020 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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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.

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