Appeals Court Reinstates NCUA Employee

WASHINGTON – A federal appeals court has reversed a previous NCUA decision to fire an employee, ruling that the agency did not follow proper procedures when dealing with him and declaring that the agency may have terminated him in retaliation for his blowing the whistle on a previous scandal. The case dates from the late 1990′s when NCUA Board members Yolanda Wheat and Norm D’Amours were implicated in a hiring and promotion scandal that alleged Wheat as well as NCUA Executive Director Carolyn Jordan were involved or had knowledge of the illegal race-based hiring and promotion scheme. During the course of that scandal according to court papers, Tim McCollum, an associate regional director for operations wrote NCUA’s inspector general about his belief that certain board members and senior staff knew about the scandal and were trying to blame it on more junior staff. McCollum also participated in the subsequent investigation and made allegations there, which the inspector general determined were unsubstantiated. Subsequently the agency tried to reassign McCollum across country, according to court records, and declined to accommodate him by refusing him the time he needed to make sure that his then 24 year old daughter, who lived with cerebral palsy, would be able to live well in a community established for disabled people. Because he could not take the reassignment, the agency terminated him and an administrative judge initially ruled that the agency was right to have done so. But the Court of Appeals for the Federal Circuit reversed the administrative judge’s decision finding that the agency had not handled his case with the proper procedures and that there may have been a case to have been made under federal whistleblower protections. “Because McCollum’s removal was not in accordance with law, the Board’s affirmance [sic] of his removal is also not in accordance with law and must be reversed,” the court wrote. “As a result, McCollum is entitled to be returned to a position as nearly as possible to that occupied prior to his removal. Additionally, because the Board erred in concluding that denying an employee work duty status pending a removal was not a personnel action within the meaning of the law, we reverse that determination and remand for adjudication of McCollum’s Whistleblower Protection Act claim based therein in a manner consistent with this opinion.” Although the court did not rule definitively on whether the agency fired McCollum because of his participation in the investigation of the hiring scandal, the court questioned some of the agency’s contentions in the case. The court observed, for example that it was “unclear” why the administrative judge had ruled that there was no whistleblower bearing on the case. “Although Jordan testified that she did not remember seeing the Inspector General’s report on McCollum’s accusation, both Dollar and Wheat, the two NCUA Board members who testified at the hearing, testified that they read the report and remembered it,” the Court’s decision said. “Given the NCUA Board’s serious consideration of such a report, Jordan’s testimony that she could not remember it and `may or may not have looked at it’ is at least suspect, especially where it named her personally as possibly being involved in prohibited personnel practices.” NCUA’s policy is not to comment on personnel related actions and McCollum was unavailable to comment on the decision. -