January 12, Matt Smith, Transportation Security Officer Notice of Removal Ref. #: 11-XXXX/SE. Dear Board Member:

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1 January 12, 2012 Office of Professional Responsibility Appellate Board Transportation Security Administration ATTN: OPR Appellate Board Coordinator (TSA-007) 601 South 12th Street Arlington, VA Subject: Matt Smith, Transportation Security Officer Notice of Removal Ref. #: 11-XXXX/SE Dear Board Member: On behalf of Transportation Security Officer ( TSO ) TSO Matt Smith, please accept this letter as an Appellate Review Board Appeal pursuant to Transportation Security Administration ( TSA ) Management Directive Number On December 19, 2011, TSO Smith received a Notice of Removal ( Removal ), prepared by the Transportation Security Manager. 1 The Decision is based on the charge of failure to maintain certification requirements. This appeal is timely pursuant to TSA Management Directive ( MD ) (C)(3) because it has been filed within thirty days of the effective date of the removal. TSO Smith has granted the American Federation of Government Employees ( AFGE ) power of attorney to pursue this appeal on his behalf. 2 TSO Smith respectfully requests rescission of his removal and payment of all back pay and benefits. He further asks the Board to eliminate any reference to this disciplinary action from his personnel records. The decision to remove TSO Smith should be overturned because 1) removing him would not promote the efficiency of service; 2) TSA policies do not prevent management from retaining and retraining TSO Smith; 3) management failed to follow progressive discipline; and 4) management failed to consider the mitigating factors surrounding TSO Smith s inability to meet the OMA standards. 1 Notice of Removal is attached as Exhibit I. 2 See Exhibit 1.

2 Page 2 of 6 I. STATEMENT OF FACTS On June 15, 2011, TSO Smith took the OSARP Mastery Assessment ( OMA ) and missed thirteen questions, which was not sufficient to meet the standard required for the Performance Accountability & Assessment Standards System ( PASS ). On July 1, 2011, TSO Smith received forty-five (45) minutes of remedial training from his supervisor. TSO Smith then took the OMA for a second time on July 7, 2011 and failed to meet the standard required for PASS. On July 21, 2011, after a little more remedial training, TSO Smith took and failed to meet the OMA for a third time and failed to meet the required standard. On July 22, 2011, the Transportation Security Manager ( TSM ) notified TSO Smith in writing that TSO Smith was unsuccessful in passing his third and final OMA test allowed under the PASS 2011 policy. The TSM further stated that, while TSO Smith may be subject to the agency job removal procedures, the Federal Security Director ( FSD ) had the discretion to allow TSO Smith to be trained in the single Passenger function. This discretion is based on an employee s overall record of satisfactory performance, attendance and service. On or about November 8, 2011, TSO Smith was served with a Notice of Proposed Removal. II. REMOVING TSO SMITH DOES NOT PROMOTE THE EFFICIENCY OF SERVICE TSA Management Directive No states that an employee may be suspended, removed, or demoted for such cause as will promote the efficiency of the service. Specifically, an action against an employee must be taken to further a legitimate government interest. Examples of employees actions that hinder a legitimate government interest are: 1) the employee s failure to accomplish his or her duties or fulfill his employment obligations satisfactorily; 2) the employee s interference with other employees performance of their duties; or 3) the employee exhibits conduct that adversely affects the agency s ability to accomplish its mission. Management has failed to establish that TSO Smith s removal will promote the efficiency of service. In fact, removing TSO Smith would result in the loss of a valuable employee and waste years of training. In the TSM s request for a waiver for TSO Smith to retake OSARP training, he notes that Supervisory Transportation Security Officer ( STSO ) Joe Schmoe feels that TSO Smith is a model worker and an asset to the baggage operation. Although TSO Smith failed to successfully pass the OMA this year, he has been employed by TSA for over nine years and he has never received any disciplinary action during his tenure. Instead of removing TSO Smith, retaining him and allowing him to retake OSARP training would more likely promote the efficiency of service. TSO Smith s proposed removal should therefore be rescinded because Management has failed to establish that his removal will promote the efficiency of service. 2

3 Page 3 of 6 III. TSO TRAINING REQUIREMENTS FOR RETENTION GIVE MANAGEMENT THE DISCRETION TO RETAIN AND RETRAIN TSO SMITH The 2011 Performance Accountability and Standards System (PASS) Technical Proficiency User s Guidance and Metrics and Management Directive give management the ability to retain and retrain TSO Smith. The 2011 PASS Technical Proficiency User s Guidance and Metrics gives the FSD that option by stating the following: Administration Requirements If an employee does not qualify on a PASS Technical Proficiency assessment after three attempts, the employee is subject to removal procedures. However, the Federal Security Director (FSD) has discretion to pursue the following options if the employee has an overall record of satisfactory performance, attendance, and service. For TSOs, LTSOs, and STSOs: 1. Convert the employee to Single Function. If the employee is Dual Function, the FSD has the discretion to convert him/her to Single Function. The officer must remain in that single function for a minimum of 12 months from the date of the third failure. 2. Train the employee in the other function. If the employee is Single Function, the FSD has the discretion to train and certify him/her in the other function. The employee must remain in that single function for a minimum of 12 months from the date of the third failure. NOTE: The above options 1 and 2 are not available for any employee who failed to qualify on a technical proficiency assessment (i.e., IMA, OMA, PSE) after three attempts in the 2009 or 2010 performance periods, and was subsequently retained by the FSD. This information can be found in the PASS Online system. TSA should continue to employ TSO Smith because TSA policies do not prevent a FSD from retaining and retraining him. Along with the User s Guidance and Metrics, Management Directive further supports the contention that management has the ability to retain and retrain TSO Smith. Management Directive (C) reads as follows: 3

4 Page 4 of 6 C. Cross Training or Equipment Certification: For TSO personnel who fail cross training or equipment certification due to academic deficiencies, the following retention options are available: (1) TSO personnel may be returned to the functional area in which he/she is certified. For example, a TSO who fails Passenger cross training may be retained in the baggage TSO function for which he/she is certified. (2) TSO personnel may be retained if operational needs do not require all TSO personnel to be certified on particular equipment. For example, a TSO who fails On Screen Alarm Resolution Protocol (OSARP) may be retained as long as there is not an operational need for all officers to be OSARP certified. The 2011 PASS User s Guidance and Metrics and the MD both support the assertion that there is nothing preventing TSA from retaining and retraining TSO Smith as a single- function screener while he is retrained. IV. MANAGEMENT FAILED TO FOLLOW PROGRESSIVE DISCIPLINE IN REMOVING TSO SMITH AND THEREBY VIOLATED TSA POLICY Management s proposed disciplinary action is unreasonable because it failed to follow progressive discipline. Assuming arguendo that TSO Smith s performance was deficient, Management s proposal to remove TSO Smith from federal service is still unwarranted. In addressing performance and conduct problems, Management must follow progressive discipline. TSA MD No (6)(D)(1) states that management shall take the appropriate level of action that is likely to correct the problem. In this instant matter, Management did not take the appropriate level of action to correct the problem allegedly caused by TSO Smith. Management should have instituted progressive discipline in assessing TSO Smith s penalty, but instead it simply elevated the punishment to the harshest level possible removal. TSO Smith is an employee with over nine years of experience in federal aviation screening procedures with TSA and has never been disciplined. As discussed earlier, the 2011 PASS Technical Proficiency User s Guidance and Metrics gives the FSD the ability to retain and retrain an employee who has failed a component of his PASS technical proficiencies based off the employee s overall record of satisfactory performance, attendance, and service. Because TSO Smith s record is flawless and he has proven consistently his proficiency at TSA screening procedures for the past 8 years, a more appropriate disciplinary action would be to retrain TSO Smith. Retraining TSO Smith would allow him to learn how to improve, and permit him the opportunity to improve his performance in the future. Management s callous removal of TSO Smith does not further the interests of abiding by proper employment practices. 4

5 Page 5 of 6 V. TSA INCORRECTLY ANALYZED THE MITIGATING FACTORS IN DETERMINING THE APPROPRIATENESS OF TSO SMITH S PROPOSED REMOVAL. TSA Handbook to MD F(2) directs TSA managers to consider the following twelve aggravating and mitigating factors in determining the appropriateness of an agency s penalty: 1) the nature and seriousness of the offense; 2) the employee s job level and type of employment; 3) the employee s past disciplinary history; 4) the employee s past work record; 5) the effect of the offense on the employee s ability to perform at a satisfactory level; 6) the consistency of the penalty with those imposed upon other employees; 7) the consistency of the penalty with those imposed upon similarly situated employees; 8) the notoriety of the offense on the agency s reputation; 9) the clarity of the employee s notice of performance expectations; 10) the potential for the employee s rehabilitation; 11) the mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, etc.; and 12) the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. An analysis of the mitigating factors demonstrates that the proposed penalty in the instant case is excessive. TSO Smith has been employed by the agency for over nine years and has a spotless disciplinary record. His supervisors consider him to be a model worker and a loyal and dedicated Officer. It is officers such as TSO Smith that the agency should make every effort to retain. Additionally, TSO Smith has been able to pass the OMA in all previous years and STSO Schmoe, who trained TSO Smith, indicated that he was able to answer all of the questions correctly during his remediation sessions. As the letter from Dr. Curly indicates, TSO Smith s inability to pass the OMA test is likely due to the time limitation rather than TSO Smith s mastery of the subject matter. She suggests that he would likely pass the OMA if he were given additional time, as he often needs to re-read questions several times before he comprehends them. The purpose of the PASS assessments is to ensure that TSA employees know what they need to do to accomplish their work successfully. There is little question that TSO Smith possesses this knowledge. Allowing TSO Smith to either re-take the OSARP training or to retake the OMA without time constraints would serve the purpose of PASS since his inability to pass is due to the time constraints on completing the assessment rather than his knowledge of procedures. VI. CONCLUSION Based on the foregoing reasons it is respectfully requested that the Notice of Proposed Removal be rescinded and that TSO Smith be given the option to either retake OSARP training or retake the OMA untimed. It is further requested that any reference to this disciplinary action be removed from his personnel records. Management should utilize its discretion and retain TSO Smith because 1) removing him would not promote the efficiency of service; 2) TSA 5

6 Page 6 of 6 policies do not prevent management from retaining and retraining TSO Smith; 3) management failed to follow progressive discipline; and 4) management failed to consider the mitigating factors surrounding TSO Smith s inability to meet the OMA standards. Please do not hesitate to contact me to discuss the issues contained herein. Respectfully submitted, 6