Legal Briefs: Trial by firing

Every Friday on GovExec.com, Legal Briefs reviews cases that involve, or provide valuable lessons to, federal managers. We report on the decisions of a wide range of review panels, including the Merit Systems Protection Board, the Federal Labor Relations Authority and federal courts.

Managers can fire people for not performing well, can't they? Sure, if they're willing to embark on a process that could drag on for years. Take, for example, the following story involving a NASA office.

October, 1992: Susan Borgo is hired as a probationary employee at NASA's Office of Small and Disadvantaged Business Utilization.

Feb. 8, 1993: Borgo is removed from her position as executive secretary for the NASA Minority Business Resources Advisory Committee (NMBRAC) because she couldn't get along with NMBRAC's chairman. She also clashed with her immediate supervisor, Ralph Thomas.

April 29, 1993: Thomas sends Borgo a memo expressing displeasure that she signed the office up to participate in a governmentwide conference without asking him or informing him.

May 3, 1993: Borgo replies to Thomas' memo, saying she was bored and in the absence of any specific work assignments, she would find things to do. In a paragraph that would become critical to the case, she stated: "It is my opinion, that if I, a white female, was your manager, and I did not include you, an African-American male, as a full member of the team, and treat you as a competent professional, that, by now, I would have been severely reprimanded or fired by senior management."

May 25, 1993: Borgo is fired by Thomas. Thomas cites unacceptable conduct, deficiencies in attitude and behavior, unexplained absences from work, inability to meet deadlines, and behavior bordering on insubordination as among the reasons for her termination.

1993-present: Borgo pursues a suit in U.S. district court, alleging that NASA first discriminated against her based on her race and sex, and then retaliated against her for complaining of discrimination.

Thomas testified that Borgo's May 3 letter was "the straw that broke the camel's back," leading the district court to decide that retaliation was at least part of Thomas' motive for firing Borgo.

The case moved to the District of Columbia Court of Appeals, which ruled that Thomas' testimony was ambiguous. A reasonable jury could interpret it in different ways. The court declared that the case must go to trial based on its merits.

Lesson: Finalizing a firing can be frustrating.

Susan M. Borgo v. Daniel S. Goldin (98-5503), U.S. Court of Appeals for the District of Columbia, March 3, 2000.

Save Your Receipts

Barry D. Anderson, a Defense Department employee, bought a home in Oklahoma for $20,725, when he was transferred to the area. When he received a check equal to 5 percent of the purchase price to reimburse him for part of his expenses-the amount he is allowed to receive under law-he was confused. Anderson had calculated that he was owed an additional $261 for real estate expenses. Anderson appealed to the General Services Board of Contract Appeals. The board confirmed that the Defense Department correctly calculated the amount owed Anderson for his transfer to Oklahoma, 5 percent of the purchase price of his home.

Lesson: If you're not a Postal Service executive, don't expect generous relocation benefits.

In the matter of Barry D. Anderson, General Services Administration Board of Contract Appeals (15233-RELO), April 26, 2000.

Fair Pay

The Merit Systems Protection Board has made final a rule that makes attorneys' fees more equitable. Former rules dictated that lawyers who appear before the board must be paid for their services at the prevailing community rate. But the rules did not define which community.

As a result, in some cases lawyers were paid whatever the going rate was where the hearing was held. In other cases, attorneys were paid the going rate where they usually practice law. To make things fairer, MSPB proposed that lawyers be paid at their usual billing rate in the community in which they practice, provided that the rate is consistent with other local lawyers' fees.

The rule was made final on April 26, 2000.