By Ann Boehm, June 14, 2023
Frequently, folks in FELTG training classes ask how to handle an employee who is rude, or angry, or disruptive, or makes inappropriate comments, or writes inappropriate emails. Often, these folks mention complaints from other staff members or supervisors about the employee’s behavior. And for some reason, they often fear taking action against the employee for the disruptive behavior.
A FELTG trainee’s recent inquiry about an employee’s disruptive behavior prompted me to look at Merit Systems Protection Board (MSPB) cases to see whether the Board thinks these types of matters merit discipline and even removal. Lo and behold, the Board does!
In one case, the agency removed an employee based upon 18 (!!) specifications of conduct unbecoming a Federal manager. Hornsby v. FHFA, DC-0752015-0576-I-2 (April 28, 2022) (NP).
One of the 18 specifications involved an incident that occurred during a meeting with a colleague. The employee held up an email from another employee and said he found it to be “’[expletive] offensive.’” Id. at 8. The colleague wanted to leave the meeting based upon the employee’s use of the expletive. Although the Administrative Judge did not think the single use of the expletive was conduct unbecoming, the Board disagreed. Id.
The Board sustained the specification, noting that it has “frequently held that rude, discourteous, and unprofessional behavior in the workplace is outside the accepted standards of conduct reasonably expected by agencies and can be the subject of discipline.” Id. at 9 (emphasis added). The Board cited two cases sustaining removal for such behavior. Id. [Side note: Those are good cases to review if you have an employee who is rude, discourteous, disrespectful, or using abusive language. They are Holland v. DoD, 83 MSPR 317 (1999), and Wilson v. DOJ, 68 MSPR 303 (1995).]
The Board ended up sustaining only five of the 18 specifications, including the use of the expletive. It also sustained the specification about the employee revealing the name of an EEO complainant to those without a need to know; one where the employee put his hands over the mouth of a colleague to stop him from speaking in a meeting (who does that in the workplace!?); one where he intimidated agency attorneys by suggesting that if they did not edit a memo to his liking, the memo could be a “’career ender’”; and one where he asked the Human Resources Director to intervene to make his supervisor give him a higher performance rating (that one included an email directing the intervention and threatened legal action). Id. at 9-14. These actions were all enough for the Board to reinstate the removal that had been reversed by the Administrative Judge. Id. at 23-27.
Other inappropriate conduct to take very seriously is anything threatening harm to others — especially in today’s violence-filled environment. In Barker v. Department of the Army, DC-0752-15-1056-I-1 (May 22, 2023) (NP), the employee said, “‘They are pushing me over the edge. You think they would be concerned about that with all these shootings.’” The agency removed him based on charges of conduct unbecoming a Federal employee and lack of candor. Id.
Even though the Board sustained only the conduct unbecoming charge, it still found the penalty of removal to be reasonable. Id. at 11-14. Factors that supported the reasonableness of removal included the employee’s past 14-day suspension for threatening to kill his supervisor (which, in my opinion, should have been a removal), and because the employee’s comment was made soon after a shooting at a nearby Fort. Id. at 13-14.
As human beings, we know what constitutes inappropriate workplace behavior, yet I fear agencies tolerate it more than they should. Take the allegations seriously and investigate. Then see what the Board has said about similar misconduct. And always, always, always take threats seriously.
We have plenty of good employees in the Federal government. Don’t subject them to rude, angry, inappropriate, and threatening behavior by the bad ones. The Board says you should be able to remove the bad ones for such conduct. That’s Good News! [email protected]
