Case for wrongful termination?

[mrkraftjr]

What is the name of your state (only U.S. law)? Virginia

I am a medical professional with a federal agency. As part of gaining employment processing applicants must complete and "pass" both a medical/psychological and security evaluation for a clearance.

In the Fall of last year the son of the Director of Security (i.e. the person in charge of all staff and applicant security clearance issues) processed as an applicant. He was disqualified on psychological grounds by an examining psychologist and later confirmed by a reviewing psychiatrist. At the time I was in a position within the Security chain of command. My immediate boss came to me and asked me to intervene with the medical office to overturn the disqualification since this was the son of her (and my) boss. I refused and said stated it would be unethical for me to intervene in that manner.

I will state also that up to this time I had 17 years of excellent performance reviews, promotions, and awards, and zero disciplinary issues ever.

Within a matter of months a security investigation of me was instituted (by the same office of security). They stated that after "reviewing" my computer use in detail I had accessed files I should not have (a claim that is vague, trumped up, and ultimately false), even though I only accessed programs that I had access to as part of my daily duties.

I was then placed on administrative leave by the same Director of Security whose son I refused to intervene with and am now potentially facing termination or at least some form of disciplinary action.

As an aside, the Director's son's disposition has been overturned in my absence on leave and he will be soon coming on as staff. This overturning was done without any further medical/psychological evaluation or testing and was done by the front office managers of the medical department. Based on nothing but pure nepotism.

I believe that the security investigation and potential disciplinary action are retaliation for my refusing to intervene and that the Director of Security has acted in a clear conflict of interest by being the one to place me on admin leave.

If I am disciplined or terminated do I have an wrongful termination case? This certainly is not right.

 

[commentator]

Right off the cuff, I'll say no. But then, you may want to wait until something happens and see what it is, if it does.

 

[Taxing Matters]

If I am disciplined or terminated do I have an wrongful termination case? This certainly is not right.

You might have a basis to assert that termination is wrongful. The exact details of the termination would matter, especially what the basis of the termination is and whether you can make out a convincing case that this was retaliation for your refusal to aid in something that was illegal or unethical under the rules that apply to federal employees. But you would first appeal the proposed termination to the federal Merit Systems Protection Board (MSPB). You’d want to consult a lawyer who handles federal employee wrongful discharge matters ASAP once termination is proposed. Federal government wrongful discharge claims are handled significantly differently than are claims against private employers.

 

[ShyCat]

They stated that after "reviewing" my computer use in detail I had accessed files I should not have (a claim that is vague, trumped up, and ultimately false), even though I only accessed programs that I had access to as part of my daily duties.

Interesting wording there. How does "I only accessed programs that I had access to as part of my daily duties" prove that you had not in fact "accessed files I should not have". If you accessed files you should not have, it doesn't matter if you used only allowed programs to do so.

 

[mrkraftjr]

Interesting wording there. How does "I only accessed programs that I had access to as part of my daily duties" prove that you had not in fact "accessed files I should not have". If you accessed files you should not have, it doesn't matter if you used only allowed programs to do so.

Thanks for all the responses. My use of different words there wasn't intentional. Without getting into the weeds basically their take is to make a "computer misuse" case bc it is easy and nearly impossible to counter. But it is completely fake. For example they questioned why I was looking at the daily calendar of appointments everyday or viewing security interviews (remember I was a medical officer acting as a liaison in a security setting) when that was exactly my job. Another was reading articles on an open internal website that an internal training told the class they should read to be better officers. It's a little hard to explain it all without giving too much away. My bottom line is I did nothing that was not part of my every day duties.

I do have a separate question- how or if I should handle EEO. Should I make a complaint to my agencies EEO? If so should I do it now before any action has been taken or after? The way the process works here is admin leave is not considered a disciplinary action (laughable). So at some point they will tell me that either 1) there will be no further action, 2) some reprimand type action will be taken, or 3) I will be taken to a personnel board where all of these things plus termination are possible outcomes. For now I have not pursued any action bc I am wary to rock the boat and am hopeful that someone will come to their senses.

 

[eerelations]

Thanks for all the responses. My use of different words there wasn't intentional. Without getting into the weeds basically their take is to make a "computer misuse" case bc it is easy and nearly impossible to counter. But it is completely fake. For example they questioned why I was looking at the daily calendar of appointments everyday or viewing security interviews (remember I was a medical officer acting as a liaison in a security setting) when that was exactly my job. Another was reading articles on an open internal website that an internal training told the class they should read to be better officers. It's a little hard to explain it all without giving too much away. My bottom line is I did nothing that was not part of my every day duties.

I do have a separate question- how or if I should handle EEO. Should I make a complaint to my agencies EEO? If so should I do it now before any action has been taken or after? The way the process works here is admin leave is not considered a disciplinary action (laughable). So at some point they will tell me that either 1) there will be no further action, 2) some reprimand type action will be taken, or 3) I will be taken to a personnel board where all of these things plus termination are possible outcomes. For now I have not pursued any action bc I am wary to rock the boat and am hopeful that someone will come to their senses.

I'm not sure what interest EEO would have in all this. Have you been discriminated against based on something like your race, gender, disability, religion and/or age? (If you have and have described it here, I apologize for somehow missing it.)

 

[mrkraftjr]

I'm not sure what interest EEO would have in all this. Have you been discriminated against based on something like your race, gender, disability, religion and/or age? (If you have and have described it here, I apologize for somehow missing it.)

Hmm well I guess I'm not sure either lol. I was thinking that wrongful termination/retaliation fell under EEO. So is it possible to sue for wrongful termination outside of EEO? I just don't understand the law.

What about the organization's Inspector General? Same question as before.

 

[cbg]

While many wrongful term cases are based in illegal discrimination, not all of them are. The ones that are fall under EEO. The ones that aren't do not.

 

[mrkraftjr]

While many wrongful term cases are based in illegal discrimination, not all of them are. The ones that are fall under EEO. The ones that aren't do not.

Ah ok thank you I just learned something! Any thoughts on if I should pursue the IG?

 

[Taxing Matters]

Hmm well I guess I'm not sure either lol. I was thinking that wrongful termination/retaliation fell under EEO. So is it possible to sue for wrongful termination outside of EEO? I just don't understand the law.

The agency EEO officer is responsible for ensuring agency compliance with equal employment laws and executive orders in conjunction with the federal Equal Employment Opportunity Commission (EEOC), which by executive order is the lead agency in coordinating equal employment programs in civilian federal government agencies. Federal law prohibits the federal government from discriminating against employees/applicants on the basis of race, color, religion, sex, national origin, age (40 or older), disability or genetic information. In addition, presidential executive orders prohibit agencies from discriminating on the basis of marital status, political affiliation, status as a parent, sexual Orientation, and gender identity. If you believe that you have been discriminated against because of one of these reasons, or because of retaliation for making a complaint about such discrimination, then that is when the agency EEO office should be contacted.

You so far have not alleged discrimination based on any of the things listed in the previous paragraph, so right now I don’t see an EEO issue.

For more information on EEO policies and enforcement in the federal government, see the EEOC page for federal employees:
https://www.eeoc.gov/federal/fed_employees/index.cfm

What about the organization's Inspector General? Same question as before.

Agency IG offices generally investigate matters of fraud, bribery, malfeasance, and other corruption issues. But not knowing which agency it is you work for I cannot say exactly what matters your IG office is charged with enforcing.

As a general matter, a basic wrongful termination case would not be an IG matter. Note too that going to the IG does nothing to save your job. That’s what agency appeals, appeals to the MSPB, etc., are for.

 

[Stephen1]

... But you would first appeal the proposed termination to the federal Merit Systems Protection Board (MSPB). You’d want to consult a lawyer who handles federal employee wrongful discharge matters ASAP once termination is proposed. Federal government wrongful discharge claims are handled significantly differently than are claims against private employers.

Appealing to the Merit Systems Protection Board (MSPB) is an empty promise right now. The MSPB is a 3 member board. A quorum of 2 is required to decide cases. Since January last year they had only 1 member and his term expired 1 March 2018. I don't know whether he was extended. There are no nominees pending for the other positions. After the President gets around to nominating people for the board and then the Senate confirms them there will still be a big backlog of cases to wade through. Of course, federal agencies have no incentive to obey the laws as laws as they know that they can avoid enforcement simply by appealing the decision of the MSPB Administrative Judge (AJ), even if they have no non-frivolous basis for an appeal, knowing that the appeal will make the enforcement action go into deep limbo, perhaps for years.

 

[Dandy Don]

What, if any, is the stated policy on nepotism for this agency?

Is there anything in writing to show you were asked to intervene and do the disqualification?

Are you aware of any similar instances exactly like yours that have occurred in a different department?

Don't waste your time with EEO--they are more likely to accept only cases that are much stronger than yours, where multiple employees have been wronged due to race or gender.

Please consult with a local employment law attorney who would be more familiar with your specific state law and would better be advised on whether you have a worthy case.

I know the situation is upsetting but maybe it is better off for you to know now how they feel about you so that you can now be proactive in continuing your employment with a firm that values you more highly.

 

[mrkraftjr]

Thanks for all the responses. I believe my organization is actually exempt from the Merit Board anyway so that is a non issue. So it sounds like the consensus is that I could[ potentially have a case, not EEO related, but still for wrongful termination and that I just need to consult a lawyer to see.

My friend who is still at work told me today that she asked the examining psychologist about the overturned decision and the examining psychologist said she was told "there is a building named after his father"...so that says it all to me.

 

[Taxing Matters]

Thanks for all the responses. I believe my organization is actually exempt from the Merit Board anyway so that is a non issue. So it sounds like the consensus is that I could[ potentially have a case, not EEO related, but still for wrongful termination and that I just need to consult a lawyer to see.

Again, without knowing all the details and what agency this I cannot say whether you have a good case or exactly what process you must follow. But understand that you must exhaust your administrative remedies before you may sue the federal government in court. So if you need to first appeal through the MSPB then that’s a step you must take notwithstanding how much time it may take to get that appeal resolved. Your complaint about it possibly taking years is noted, but understand that suing the federal government can take years anyway. If you have in mind some fast resolution to your wrongful discharge claim I think you will end up disappointed on that score. I do think seeing an attorney now is a good idea to find out if you even have a worthwhile claim to bring; if the answer is no then the rest won’t matter.