Lack of detail prompts MSPB to overturn Navy dismissal

The Merit Systems Protection Board (MSPB) has overruled the Navy reinstating an employee fired by the department for making racial slurs after determining that the Navy did not give the employee enough information to adequately defend himself.

The employee Cecil Mason worked for the Navy as a motor vehicle safety inspector. He was suspended for improper and unacceptable conduct at the workplace because according to the Navy Mason had used racial slurs in the presence of three employees who worked for a trucking company hired by the Navy. The Navy said Mason also had used racial slurs against other agency employees and told sexual jokes at work.

Although the Navy had initially proposed firing Mason it decided instead to suspend him for 60 days.Mason denied the charges questioned the justification of the Navy's penalty and sought protection under the Whistleblower Protection Act. Mason claimed that the Navy's action was a reprisal for reporting safety violations on several trucks operated by the trucking company that employed the workers who allegedly heard Mason use racial slurs.

At a Navy hearing the three trucking employees testified that on one occasion Mason made racist remarks to them. Witnesses also said Mason used one racist slur in 1991 and two racist remarks in 1992.

Despite these claims another employee of the trucking company two Navy employees and two former Navy employees rebutted the allegations. The witnesses testified that they never heard Mason make racist remarks at work. But in its ruling the Navy had rejected this testimony and ruled against Mason.

racist remarks at work. But in its ruling the Navy had rejected this testimony and ruled against Mason.

No Specifics No Case

The MSPB ruled that the Navy in its initial notice to Mason did not specifically identify when Mason allegedly used the racial slurs. That oversight put Mason at a disadvantage the MSPB ruled because he could not disprove the alleged misconduct until the agency's witnesses at the Navy's hearing identified when Mason used the slurs.

Without those details Mason had no alternative but to present a general defense to rebut the allegations. So the MSPB ruled that the Navy violated Mason's right to fundamental due process and the board ordered the Navy to cancel Mason's suspension and restore him to his position with back pay plus interest.

This decision was not unanimous however. One MSPB board member Antonio C. Amador dissented. "The agency notice was specific enough to enable Mason to understand the nature of the charge and to prepare an informed reply " he said.

I am interested in knowing what you think about this case. Send me an e-mail at bureaucratus@fcw.com.

Cecil Mason v. Department of the Navy Merit Systems Protection Board Docket No. PH-0752-95-0388-I-1 June 4 1996.

Bureaucratus is a retired federal employee who is a regular contributor to Federal Computer Week.

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