Cases Based on Failure to Meet a Condition of Employment

By Barbara Haga, March 13, 2019

In training classes on developing performance plans, I am often asked about putting language into standards that state employees are required to complete training or obtain necessary certifications. My response is that typically those measures are not needed. We write standards from the standpoint that they have the necessary qualifications to perform the assigned work. Put another way, we write performance standards about how well the work is performed; failure to meet such a requirement is a conduct matter.

Back to Basics

Condition of employment cases under 752 are actually fairly simple. If it is a condition of employment that an employee possess, obtain, and/or maintain a license, certification, or membership status, then failure to comply is often the basis for an adverse action. To win these cases, we need to show the following:

• The employee occupied a job requiring the certificate/license/status,
• The employee failed to obtain or lost the certificate/license/status, and
• If the agency controls granting this certificate/license/status, the agency decision was made in accordance with agency procedures.

The Board deals with the facets of such cases in Gallegos v. Department of the Air Force, 114 FMSR 185 (2014). The Board wrote that the charge of failure to meet a condition of employment contains two elements: (1) the requirement at issue is a condition of employment; and (2) the appellant failed to meet that condition. The key point follows: “Absent evidence of bad faith or patent unfairness, the Board defers to the agency’s requirements that must be fulfilled for an individual to qualify for appointment to, or retention in, a particular position.”

Failure to Meet a Condition of Employment

Gallegos was a GS-1811-13 Criminal Investigator with the Air Force’s Office of Special Investigations (OSI). As a condition of employment in that position, she was required to sign a mobility agreement in which she acknowledged that any failure to accept a geographic reassignment could subject her to separation from federal service. The Board found that the Air Force policy had a legitimate management reason for directed reassignments based upon its need for “civilian mobility” as an essential component of its organizational effectiveness and for employee career progression. The agency policy established that high-level employees were expected to have a variety of work experiences at various locations throughout the Air Force. Thus, mobility agreements for all civilian Criminal Investigators were required.

The agency policy included a provision that it would honor employees’ geographic preferences to the extent that the needs of the Air Force permitted, but did not commit itself to honor all such preferences under all circumstances.

Gallegos had initially been hired in Florida, and moved to Andrews Air Force Base in Maryland in 2008. She obtained a hardship reassignment back to Florida in 2009 where she remained until she was notified in May 2012 that she was required to accept assignment at Quantico, VA. She refused that move. She argued that the agency was required to show that her move to Quantico promoted the efficiency of the service. The Board disagreed, ruling that the removal was effected for not meeting a condition of employment (to rotate) and not whether that directed reassignment was based on legitimate management reasons.

Other Kinds of Cases

There is a great variety of certifications, licenses, memberships, qualifications, and clearances that Federal positions require. In each of the cases listed below, the MSPB upheld the removal. Here are some examples:

Failure to Maintain IT Credentials – Change in Requirements

Sasse was an Information Technology (IT) Specialist, GS-2210-09. He was appointed to that position in 2008. The position description required him to satisfactorily complete the appropriate training and obtain the required certification/recertification as outlined in Department of Defense policy, 8570.01-M (“Information Assurance Workforce Improvement Program”). CompTIA is the certifying body for work in this field.

Prior to his initial appointment, Sasse had passed an IT Security examination and as a result was granted a “Good-for-Life” (GFL) certification by CompTIA. However, DoD changed the requirement in 2011. The GFL certifications went away and employees had two years (2011 and 2012) to enroll in a Continuing Education (CE) program. Once enrolled in the CE program, the certificate holder had three years to complete the CE requirements, which meant submitting proof of completing a minimum number of CE units annually to CompTIA. If the employee allowed the certification to expire, then he would have to pass the current version of the examination and comply with CE requirements.

Sasse allowed his certification to expire in 2014.  He was not allowed to perform any duties requiring privileged access between September 2014 through 2016. He performed administrative tasks during this time frame.  He also tried to pass the current security exam several times, but was not successful. He was given nine written notices in the fall of 2016 that he had to regain the CompTIA Security certification. His removal was proposed in January 2017.

Agency officials testified that privileged access enables users to make substantial changes to agency systems, potentially causing them great harm. There also was testimony that if the facility was found to have violated DoD Information Assurance requirements, the facility’s access to the broader network could be disconnected. Sasse argued that, even without his certification, he still had “many other duties and responsibilities that he could complete without maintaining elevated privileges.” The AJ deferred to the agency’s explanation that the requirements that had to be fulfilled. Sasse v. Army, DA-0752-17-0327-I-1 (2017).

Failure to Maintain EMT Credentials – Agency Not Aware of Lapse

Full-performance level Firefighters in the Department of Defense are required to maintain several types of certifications including that of Emergency Medical Technician (EMT), a certification which must be renewed every other year. The certification was documented in the position description and was also included in the vacancy announcement when Saline was hired. Saline’s EMT certification had expired four years before the agency knew. He never notified his employer that this had occurred. It was noted in the decision that because the certification had lapsed for so long, he would have to re-take the EMT course and re-take the examination to be recertified. When it was discovered that he didn’t have current certification, he was questioned on May 24, 2014. He initially told his employer that he had an updated EMT card but that was not true.

Once the Army established that he was performing EMT duties without a current certificate, he was immediately removed from firefighting duties and his removal was proposed on June 25, 2014.

Saline’s removal response was an extended apology for allowing this to occur, stating basically that he allowed it to lapse and that he had no excuse other than that he was not as diligent as he should have been. One of Saline’s arguments in his appeal was the suggestion that management could have discovered the lapsed certification earlier and notified him of the need to take prompt corrective action.

The AJ wrote that regardless of whether management could have discovered the problem earlier, Saline knew he was not certified. Agency witnesses testified that it would be virtually impossible for a Firefighter to forget to re-certify, particularly given the frequency with which it was discussed at work in the Fire Department.  Saline v. Army, DE-0752-14-0567-I-1 (2015).

In future columns, we will look at more condition of employment cases, including several with issues related to failures to meet qualifications based on medical conditions. Haga@FELTG.com.