Legal Briefs: Transfer trouble

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.

Marilyn A. Whitworth, an Army quality assurance specialist, was transferred from the Sierra Army Depot in Herlong, Calif., to a post in Germany in 1996. Whitworth and her husband sold their home, packed up and moved to Germany, operating under the assumption she wouldn't be returning to the same base. Three years later, Whitworth was transferred to an Army ammunition plant in Missouri. When Whitworth submitted her reimbursement vouchers for her moving expenses, the Defense Finance and Accounting Service (DFAS) refused to reimburse her for the costs she incurred while selling her home near the Sierra depot.

Whitworth hadn't been officially informed that she wouldn't be transferred back to Sierra, so she should not have sold her home and expected the Army to pay for it, DFAS argued.

Under federal travel regulations, Whitworth cannot be reimbursed for the expenses of selling her home if that home was sold before she was officially notified that she would not be moving back to the same base she was transferred from.

But Whitworth said she was 99 percent sure she wouldn't be sent back to Sierra for three reasons. First, her reemployment rights were not with that depot. Second, in two tours of duty overseas, she had never been reassigned to the same location she left. Third, the Sierra depot was targeted for base closure when she left for Germany.

The General Services Administration Board of Contract Appeals said they didn't blame Whitworth for thinking she would not return to the Sierra depot. Nonetheless, they said, "the prospect of an event occurring-even the very likely prospect of an event occurring- is not official notification that the event will occur."

Whitworth's claim for reimbursement was denied.

Lesson:There's a right way, a wrong way and a DFAS way.

Marilyn A. Whitworth v. Defense Finance and Accounting Service, General Services Administration Board of Contract Appeals (15174-RELO), February 18, 2000.

Double Jeopardy

Joe Arredondo was fired from his job with the Postal Service because of a sexual harassment complaint. The manager of a postal operation called Arredondo's manager to say he had received a complaint from two of his employees about Arredondo standing near their work station. According to the manager, Arredondo "did something sexual that was unacceptable to the two female employees." According to Arredondo, the event never took place.

The matter ended in a settlement agreement, and Arredondo returned to work. But shortly thereafter, the agency tried to fire Arredondo again based on the same charge and other incidents. Arredondo appealed to the Merit Systems Protection Board, saying the prior settlement prevented him from being fired for the same charge. He also alleged the Postal Service never proved the charge of sexual harassment, and that the second firing was racially motivated.

Upon review of the case, MSPB agreed with Arredondo that the evidence of sexual harrassment was mere hearsay. The two managers, the two women and the supervisor who fired Arredondo did not testify before MSPB and the agency failed to produce a witness. Additional witnesses testified that Arredondo's supervisor referred to him as "his Mexican" and often made racial slurs.

Such direct evidence established that the supervisor had a discriminatory attitude, and that it influenced Arredondo's firing. MSPB ordered the Postal Service to restore Arredondo to his position.

Lesson:It takes real evidence, not hearsay, to fire someone.

Joe Arredondo v. U.S. Postal Service, Merit Systems Protection Board (DA-0752-98-0524-I-1), February 9, 2000.