In mid-2020, Mr Mungo was a Department of the Army Security Guard (“DASG”) at what is known as the Gillem Enclave, an installation housing several military units. (Mungo v. Department of the Army (CAFC No. 2022-1266 (nonprecedential) 4/4/2023). Mr. Mungo and Mr. Thompson, a fellow DASG, got into a “heated dispute” over food in the office refrigerator. Mungo told Thompson during the altercation that he would “[expletive] him up.” Making things worse for Mungo, he visited one of his guard supervisors and very emotionally “repeatedly threatened to kill Thompson.” (Opinion p. 2)
Piling it on, Mungo called yet another supervisor and according to that official’s testimony, Mungo “repeatedly threatened Thompson, saying that he ‘wanted to hurt him bad.’” (P 2) This second supervisor ordered Mungo to turn in his weapon and leave the premises immediately. The two supervisors then called the Chief of Guards for Gillem Enclave and reported the whole sordid affair. A letter of warning was issued to Mungo and he was counseled. (p. 2)
As it happens, DASGs are required to maintain a certification under the Army “Individual Reliability Program” (IRP). This program is designed to ensure that all guards are fit for duty and “their characters and trustworthiness comport with the high standards expected of law enforcement personnel.” (P. 2)
Following an investigation, Mungo was told he was temporarily suspended from the IRP. He was also referred for a fitness for duty exam, which he apparently passed. Notwithstanding, Mungo was permanently decertified from the IRP due to the refrigerator incident and his multiple intemperate threats and he was warned that this could be cause for his removal. After Mungo responded to this notice, the agency proposed his removal based on conduct unbecoming and failure to maintain his IRP status, a requirement for his job. (P. 3)
The union represented Mungo and, after the agency made the decision to remove him, arbitration was invoked. Following a hearing Arbitrator Dennis Nolan concluded the agency had “just cause to remove [him] for threatening a co-worker,” and that his removal promoted the efficiency of the service by both eliminating a possible threat to the workplace as well as serving as a deterrence to others. (P. 4) As noted by the arbitrator, it clearly was conduct unbecoming to threaten to “[expletive] up, to kill, and to hurt DASG Thompson,” Moreover, as to the second charge the arbitrator found the agency had a reasonable basis to revoke Mungo’s required IRP certification.
Mr. Mungo appealed the arbitrator’s decision to the federal appeals court, arguing the decision was not in accordance with law because Army had not been required to prove the merits of his IRP decertification. Not so, ruled the court: “We disagree.” (p. 5) The court pointed out that there was ample testimony as to Mungo’s repeated threats against Thompson. Further, the deciding official testified he decided to decertify Mungo because “security guards are held to a ‘high standard’ and ‘severe’ threats such as those Mungo made to Thompson could not be ‘tolerated.’” (P. 5)
In short, Mungo’s refrigerator meltdown set off a cascade of events that led to his removal, which an arbitrator and now a court have upheld.
