2017 Case Upheld by Federal Circuit
Federal employees are rarely fired, but it happens. The process is often time-consuming and can take years to reach a final decision if various appeals available to an employee are filed. Agency supervisors or managers sometimes decide firing an employee is not worth the time and effort required by the removal process. The result is that the employee continues in the job as a federal employee with full pay and benefits.
In this case, the agency decided to proceed with the removal process. It involves a GS-11 employee fired from her job with the Department of the Army in Fort Riley, Kansas after an event in 2017.
The US Court of Appeals for the Federal Circuit has now affirmed a final decision by the Merit Systems Protection Board (MSPB). The MSPB upheld Roberta A. Lee’s removal from her position as a Supervisory Visual Information Specialist due to insubordination.
Work Now, Grieve Later Upheld After Direct Order Issued
Lee’s case originated from the employee failing to attend a meeting on December 5, 2017, with her supervisor, Randi Hamden. Despite being directed to attend, Lee sought clarification on the meeting’s purpose and insisted that her Equal Employment Opportunity (EEO) representative be present.
The agency clarified the meeting was unrelated to her pending EEO complaint and expected her attendance without representation. Lee did not attend the meeting. She was then placed on administrative leave that same day. On January 12, 2018, the agency’s decision was issued firing Lee for insubordination.
Following her removal, Lee appealed to the MSPB. An administrative judge (AJ) affirmed the agency’s decision. The AJ determined that Lee had received a clear order to attend the meeting and that her failure to comply was insubordination. The AJ also assessed the appropriateness of the removal penalty based on established “Douglas factors,” concluding that it was reasonable given Lee’s supervisory role and the seriousness of her misconduct.
Court’s Decision
After the MSPB decision, Lee filed a petition for review with the Federal Circuit, which addressed several arguments she raised:
- Overlooked Points: Lee claimed that both the AJ and MSPB overlooked critical points in her arguments. The court found this assertion vague and unsupported, noting that she did not provide specific evidence demonstrating any errors in the Board’s decision.
- Lack of Order: Lee argued that there was no proven order for her attendance at the meeting. However, substantial evidence from email exchanges and testimony confirmed that she had been clearly instructed to attend.
- Penalty Assessment: She contended that the agency should have sought an alternative penalty rather than outright removal. The court clarified that agencies are not required to propose alternative penalties before determining a reasonable response to misconduct.
- Proof of Insubordination: Finally, Lee argued that the agency failed to prove insubordination. The court reiterated that insubordination involves willful disobedience of an authorized order, which was established in this case.
The Federal Circuit concluded that there was no error in the MSPB’s findings or the affirmation of Lee’s removal, stating that it did not find any arbitrary or capricious actions in their determination.
Work Now, Grieve Later to Avoid Disciplinary Action
The Federal Circuit affirmed the MSPB’s decision without addressing whether Lee’s late filing of her petition could be subject to equitable tolling, as it found no merit in her appeal regarding insubordination or penalty assessment.
This case supports the common wisdom of “work now and grieve later.” This common wisdom is often upheld in decisions in which an employee has filed an appeal. It means an employee must comply with a direct order. If an employee disagrees with the order, failing to comply is a basis for firing the employee.