Federal appeals court overturns a termination because management considered several alleged past instances of misconduct that were "not referenced in the Notice of Proposed Removal, leaving the employee entirely unaware that such incidents would be considered as grounds for his removal." Ward v. Postal Service, #2010-3021, 2011 U.S. App. Lexis 3199 (Fed. Cir.).
    Relying on Ludlum v. DoJ, #01-3093, 278 F.3d 1280 (Fed. Cir. 2002), the Merit System Personnel Board remanded an appeal for additional findings. An investigator was charged with a lack of candor during an I-A interview, but the record did not reveal the questions asked or what he should or should not have been expected to disclose in response to the questions. Robertson v. Dept. of Transportation, #DE-0752-09-0072-I-1, 2009 MSPB 229, 2009 MSPB Lexis 8498.
     Arbitrator overturns the termination of a correctional officer accused of assaulting an inmate, where the only prosecution witness was not credible, a photo lineup procedure was flawed, the polygraph was of little value, the inmate did not testify, there was no physical evidence of assault. Dept. of Justice and AFGE L-2343, FMCS #08/04400, 126 LA (BNA) 1386 (Fowler, 2009).
     Arbitrator sets aside a 60 working-day suspension of a corrections officer for misdirecting a security camera. Management failed to prove that the grievant abused property because of an unproven burst of anger. Clermont Co. Sheriff and Ohio FOP L-112, 125 LA (BNA) 592, FMCS Case #08/00909 (Bordone, 2008).
     Under the bargaining agreement, arbitrator holds that management was not required to call the investigating officer as a witness. Ohio Hwy. Patrol and St. Troopers Assn., Grievance No. 15-03-080129-0007-01, 125 LA (BNA) 95 (Feldman, 2008).
     Merit Board, in a case where a federal firefighter was demoted for "allowing" false time cards to be processed, ruled that the agency was required to show (1) that the time cards were false, not merely incorrect, and (2) that the firefighter intentionally allowed the false time cards to be processed. George v. Dept of the Army, Docket #SF-0752-06-0316-I-1, 2007 MSPB 31 (MSPB 2007). [N/R]
     Appellate court overturns an arbitration award that applied the beyond reasonable doubt standard to the trial of a corrections lieutenant that was accused of having sex with an inmate. N.Y. State Law Enforcement Officers Union C-82 v. State of New York, #500783, 2006 N.Y. App. Lexis 14103, 2006 NY Slip Op 08861 (3rd App. Dept. 2006). [N/R]
     Federal Merit Board orders the reinstatement of a DEA agent that was fired for domestic violence. Although an audiotape of a 911 call created the impression of a woman who was being beaten senseless by an out-of-control husband, a hearing judge found that the audiotape was inaudible and unintelligible and was entitled to "no weight as evidence at all." ID at 6-8. Carlton v. Dept. of Justice, #DE-0752-04-0037-I-1, 2006 MSPB 232, 2006 MSPB Lexis 4127 (MSPB 2006). {N/R}
     Because of a criminal conviction, management did not have to prove at a disciplinary hearing that an employee assaulted coworkers. The doctrine of collateral estoppel applies. Miles v. Dept. of the Navy, #AT-0752-05-0242-I-2, 2006 MSPB 169 (MSPB 2006). {N/R}
     A state training board's finding that a cadet had cheated on an exam needs only be supported by a preponderance of the evidence. A clear and convincing evidence standard is not required. Suber v. Pennsylvania Cmsn. on Crime, #265 C.D. 2005, 885 A.2d 678, 2005 Pa. Commw. Lexis 643 (Pa. Commw. 2005). {N/R}
     Arbitrator rejects the defense that a police officer failed a random drug test because he took nonprescription Living Harvest hemp seed oil to alleviate sinus problems. The health store's record of sales did not confirm his purchases, and the product is manufactured to remove any THC contaminates. City of Dayton and FOP Lodge 44, AAA #53-390-00178-04 (Bell, 2005). {N/R}
     Third Circuit gender bias lawsuit emphasizes the importance of having written supervisory reports of poor performance and/or a record of direct counseling with an underachieving employee. Hugh v. Butler County YMCA, #04-1459, 418 F.3d 265, 2005 U.S. App. Lexis 16909 (3d Cir. 2005). [2005 FP Nov]
     Arbitrator holds that management did not have just cause to fire a worker who was accused of sexually harassing two women coworkers, even though the HR director testified that the women had complained to her, where the complainants refused to testify at the hearing; the "just cause" requirement for discharge must include an opportunity for cross-examination of the complainants. Cincinnati Metrop. Housing Auth. and AFSCME Ohio Council 8, L-1027, 119 LA (BNA) 1389 (Heekin, 2004). {N/R}
     Arbitrator finds that a county did not have just cause to discharge an employee who allegedly threatened to poison a coworker, where all of the evidence was hearsay and some of the statements were inconsistent. Lucas County, Ohio, and Auto. Workers L-12, 119 LA 1063 (Bordone 2003; rptd. 2004). {N/R}
     Arbitrator holds that the Air Force did not have just cause to discharge an employee who was accused of assaulting a coworker in his residence, where a third employee, who was a witness to the alleged assault, decided not to testify. Hearsay statements about the event did not provide sufficient proof to uphold the termination. Warner Robins Logistics Center and AFGE L-987, Grievance #ARB 02-96, 119 LA (BNA) 402 (Nicholas, 2003). {N/R}
     Arbitrator reinstates a corrections officer who was fired for abusive and profane language towards a lieutenant. The lieutenant was no longer employed at the prison and the hearsay evidence against her was not sufficiently persuasive to warrant her termination. Wackenhut Corrections Corp. and Delaware Co. Prison Employees, FMCS Case #02/12669, 118 LA (BNA) 63 (O'Connor, 2003). [2003 FP Jun]
     A divided federal appeals panel affirms the termination of an FBI agent who, during the I-A interview, significantly understated the number of times he had misused a Bureau vehicle. It was unnecessary to prove an intent to deceive his superiors. cards). Ludlum v. Dept. of Justice, #01-3093, 278 F.3d 1280, 2002 U.S. App. Lexis 1128 (Fed.Cir. 2002).   [2002 FP Apr]
     The review of an disciplinary board's decision is a two-step process: whether the agency's finding of guilt is contrary to the manifest weight of the evidence and whether the findings of fact provide a sufficient basis for the board's conclusion. Jones v. Police Board, 297 Ill.App.3d 922 (1998). {N/R}
     Indiana appeals court finds that a “preponderance of the evidence” test is sufficient to terminate a public employee unless a “liberty interest” is involved, which would require "clear and convincing evidence." Burke v. City of Anderson, 612 N.E.2d 559 (Ind.App. 1993). [1994 FP 38-9]
     Terminations of officers reversed, where evidence consisted of a report by a police captain of his internal investigation, including his summaries of statements he received and interviews he conducted. None of the statements were under oath, and none of the persons were available for cross-examination. McLean v. Mecklenburg Co., 448 S.E.2d 137 (N.C. 1994). {N/R}
     A legally-protected property interest may exist by statute, regulation, employee guidance manual, policy or practice, written contract, or express mutual agreement. Without such an interest, there is no right to due process in disciplinary actions. Pesek v. City of Brunswick, 794 F.Supp. 768 (N.D.Ohio 1992). [1993 FP 23-4]
     Demotion set aside because board denied lieutenant assistance of counsel and right to cross-examine. Garrett v. N. Babylon Vol. Fire Co., 433 N.Y.S.2d 218 (A.D. 1980).