WASHINGTON – In a rare court challenge to an NCUA personnel action, a federal appeals court has upheld a 2008 firing by NCUA of one of its examiners.
The U.S. Court of Appeals for the Federal Circuit turned away claims by Margaret Considine that she was fired in retaliation for prior complaints against superiors and upheld a ruling by an administrative law judge that NCUA acted properly in her termination, according to the court record.
In its decision, the appeals court ruled it must uphold the NCUA’s termination unless it could be showed the action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence."
"Under this standard of review, this court will not overturn an agency decision supported by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," ruled the appeals court.
Considine was an examiner in NCUA’s northeast Region One office in Albany, N.Y., when she was cited in March 2008 with a Notice of Unacceptable Performance. The Notice said Considine was being put on a 120-day performance improvement plan and that action would be initiated to either demote or remove her from if she failed to raise her performance for critical elements one and two to a "Minimally Meets" level within the 120-day period. In September, the Regional Director determined that Considine had not improved her performance so he gave her a 60-day notice of termination.
Considine appealed the termination to the Merit Systems Protection Board, which has jurisdiction over federal agency employees. But an administrative law judge appointed by the Board agreed with NCUA that there were proper grounds for termination.
In upholding the decision, the appeals court rejected several arguments that her termination was in reprisal for grievances she had filed earlier, including so-called whistleblower complaints, saying the one-time NCUA examiner failed to prove any of those claims.
