Social Security Agency Used Worker’s Veteran Status Against Him

A former attorney adviser with the Social Security Administration convinced the Federal Circuit Nov. 7 that his veteran status was a substantially motivating factor in the agency’s 2011 decision to fire him.

As a qualifying veteran hired by a government agency, Clarence McGuffin was entitled to a shorter probationary period than other non-veteran new hires before the full suite of Civil Service Reform Act rights vested. Those rights include the right to appeal adverse employment actions to the Merit Systems Protection Board.

That shorter probationary period is an employment benefit protected by the Uniformed Services Employment and Reemployment Rights Act, and the SSA infringed on that right by actively seeking to terminate him before his first work anniversary, Judge Jimmie V. Reyna said for the U.S. Court of Appeals for the Federal Circuit.

“We want to terminate him so that he does not acquire MSPB rights,” read one intra-agency email quoted in the opinion. Another email stated that McGuffin was a “vet” who “has to be terminated in his first year.”

SSA argued that it regularly terminates workers before their employee rights vest when it knows the worker won’t be the right fit. But here, McGuffin’s “early” access to CRSA benefits “are intrinsically tied to his preference-eligible veteran status,” Reyna said.

McGuffin was let go from his attorney adviser position in SSA’s Office of Disability Adjudication and Review in part because he allegedly wasn’t producing his “fair share” of work, a monthly quantity determined by dividing the office’s caseload across all of the attorney advisers charged with authoring benefits appeals decisions. But SSA isn’t supposed to use an attorney adviser’s “fair share” production as a performance metric until their second year with the agency, Reyna said.

In January 2011, while his supervisors discussed how to structure his termination notice, McGuffin received notably positive feedback from an administrative law judge on an opinion he drafted, Reyna said. He also increased his personal work-completed metric from 46% in December 2010 to 80% in January 2011, while still communicating his interest in additional training, Reyna said.

“The record is clear that SSA closed the door on Mr. McGuffin well before the end of his first year to avoid the inconvenience of defending itself should Mr. McGuffin assert his procedural safeguards afforded under the CSRA,” Reyna said. The court reversed the contrary decision from the MPSB and remanded the case for further proceedings.

Judges Kimberly A. Moore and Raymond T. Chen joined the opinion.

McGuffin represented himself. The Justice Department represented the SSA.

The case is McGuffin v. SSA, Fed. Cir., No. 17-2433, 11/7/19.