- The Washington Times - Monday, April 23, 2001

Federal employees can be terminated without a hearing if they previously agreed in "last-chance" agreements to correct their work problems but failed to do so, the Federal Circuit Court of Appeals ruled two weeks ago.

The case involved Julie Buchanan, an Energy Department employee accused of a history of frequent absenteeism. Initially, her supervisors placed her on probation and allowed her to work from home. After continued absenteeism, they fired her.

Miss Buchanan, who could not be reached for comment, appealed her termination to the Merit Systems Protection Board, the board that rules on federal employment issues. The board allowed her to return to her job but only after she agreed to a last-chance agreement.

A last-chance agreement means employees can return to their jobs as long as they do not deviate from the terms of the agreements. In this case, the agreement said Miss Buchanan agreed to avoid absenteeism and waived any rights to appeal if she was terminated for being late or absent again.

After more attendance problems, she was fired again. She requested a hearing to appeal her termination but the Merit Systems Protection Board refused both the hearing and reinstatement.

Normally, courts have held that federal employees are entitled to hearings any time they are terminated.

For federal employees, "There's a constitutional interest in a person keeping their job," says Jim Eisenmann, a Washington employment lawyer who represents federal employees. "They have a pre-termination right to respond to the charges. That's why public sector employees typically have more protections than private sector employees."

However, last-chance agreements create an exception to the constitutional job protections, Mr. Eisenmann says.

"It's a last resort," he says. "I would very reluctantly recommend that someone agree to that."

In this case, the board said Miss Buchanan waived her appeal and hearing rights by the last-chance agreement.

The Federal Circuit Court of Appeals agreed. The only way Miss Buchanan would have appeal rights would be if she could prove the board acted "arbitrarily or capriciously." In other words, that the board violated constitutional rules on fact-finding or procedures.

Miss Buchanan argued that the board acted arbitrarily in interpreting the requirement in the agreement that she be "on-duty." She interpreted "on-duty" to mean that she entered her office building at the appointed hour and did not leave until the normal end of the work day.

She was terminated the last time because her supervisors were unable to find her for several hours during the work day. She said she was in training but could provide no definitive proof of it.

Her supervisors interpreted "on-duty" to mean that she should be actively involved in the Energy Department's operations during the work day.

Miss Buchanan also said that if she were granted a hearing, she could prove the attendance policy was enforced more stringently against her than other employees.

The appeals court, however, said the degree of enforcement of the attendance policy was irrelevant. The controlling issue was whether the employee obeyed terms of the last-chance agreement, the court said.

By violating the last-chance agreement, she also waived her rights to a hearing and the possibility of reinstatement, the court said.



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