By Deborah J. Hopkins, March 19, 2024
For over two decades, we at FELTG have preached the delicacy and strategy required when charging an appellant with misconduct that requires proof of intent. A recent case shows us how problematic this 6-letter word (i-n-t-e-n-t) can be when it’s put, or even implied, in the wrong place in a discipline proposal notice: Morris v. DOT, DC-0752-17-0441-I-1 (Jan. 19, 2024).
In Morris, the agency informed the appellant he was being placed on a PIP and scheduled a meeting between him and his supervisor (the assistant director) to discuss the PIP. The appellant requested a neutral third-party observer be present during the meeting. He claimed it was for his own safety, as he had reported a few months previously that “his family was concerned [agency] management may try to kill him.” Id. at ¶17. The appellant had also admitted he held animosity toward the assistant director, and he believed that she had concocted “unfounded rationales for the PIP as a pretext to have him removed.” Id. Safe to say, nobody was especially looking forward to the PIP meeting.
The agency designated a neutral third-party observer per the appellant’s request. During the meeting, which the appellant himself described as “heated,” Id. at ¶13, the appellant took out a pair of glasses, then reached into his pocket, pulled out a knife, and stated something to the effect of, “This is not a threat. I need to fix my glasses. I always carry a pocketknife.” Id. at ¶4.
After the PIP meeting ended, the assistant director was so unsettled, she went to her office and locked the door, because she was “shaking and scared.” The director confirmed this; she visited the assistant director’s office shortly thereafter and found her crying. Id. at ¶5. The third-party neutral observer also described the appellant’s behavior as “very inappropriate,” and indicated that he had “succeeded in intimidating” the assistant director. Id.
A side note – the threat of violence is a very real issue for agencies, and we’ll be addressing how to handle incidents like these on April 3 during the virtual training Assessing Risk and Taking Action: Threats and Violence in the Federal Workplace.
Now back to the case. The agency proposed the appellant’s removal based on a single charge of conduct unbecoming and gave a detailed narrative in support. Although it’s lengthy, I suggest you read the entire narrative, as some of the language is what caused the agency a problem:
On Monday October 24, 2016, you met with your supervisor, [the Assistant Director] at approximately 3:00 PM to discuss a Notice of Unacceptable Performance and Opportunity to Improve that was issued to you that morning. At your behest, [the third party observer] attended this meeting as a neutral observer. You started the discussion by stating that the Notice was issued in retaliation for several complaints you had filed with the Departmental Office of Civil Rights and accused [the Assistant Director] of changing the standards and deliverables described in your performance plan. After explaining that this was untrue, [the Assistant Director] expressed that the purpose of the meeting was not to argue about the contents of the notice but to walk through the plan, provide you an opportunity to ask questions, and set out the first tasks. You then took out a computer tablet and a pair of black framed glasses. You reached into the front right pocket of your pants and pulled out a pocketknife while stating, “This is not a threat. I need to fix my glasses.” You then proceeded to adjust the glass frames with your knife. While engaged in this activity, you looked at [the Assistant Director] and stated, “I always carry a knife.” [The Assistant Director] quickly ended the meeting after you produced the knife and agreed to send future work requests by email. She returned to her office and locked the door. [The Assistant Director] prepared a statement to document the October 24th meeting. In this statement she expressed that she found both your words and your actions confusing because she did not recall having ever seen you with glasses before that moment. She also stated that she had never seen you with a knife, nor heard you discuss carrying one on your person. Her statement clearly conveyed that she was fearful for her safety after this incident. This is corroborated by a statement prepared by [the third-party observer]. He explained that he went to [the Assistant Director’s] office following the meeting and had to identify himself after knocking before she would unlock her door to let him in. When [the Assistant Director] opened the door to [the third-party observer], she expressed to him that she was very shaken by the appearance of the knife. [The BTS Director] also provided a statement in which she described [the Assistant Director’s] appearance and reaction immediately after the incident. [The BTS Director] indicated that she went to see [the Assistant Director] after receiving her email reporting the incident. [The BTS Director] explained that she had to knock on [the Assistant Director’s] locked door and identify herself before [the Assistant Director] opened the door. [The BTS Director] observed that, when [the Assistant Director] finally did open the door, she was shaking and crying. [The BTS Director] told her to go home and suggested that she telework the following Monday, October 31, 2016, so that she would not have to be in the office with you. After meeting with [the Assistant Director], [the BTS Director] sent an email to [the Assistant Secretary for Research and Technology (OST-R)], and [the Executive Director of OST-R] to notify them of this incident. In this email, she explained that, as a direct result of this incident, [the Assistant Director] no longer felt free to maintain the open-door office policy she used to practice. This observation was confirmed in an email [the Assistant Director] sent on October 31, 2016, in which she stated her intent to remain in her locked office while you are present at the worksite. Consequently, you were placed on administrative leave to ensure that you would no longer disrupt the office environment. While it is unclear whether the knife you exhibited exceeded the 2-and-a-half inch limit that is permissible on Federal facilities, it is my belief that the timing and circumstances surrounding this incident convey your deliberate efforts to intimidate and cause anxiety to your supervisor. As such your conduct was disruptive to the workplace and cannot be tolerated. [bold added]
Id. at ¶6.
The agency’s Douglas factors assessment included that the assistant director no longer felt safe in the office, and reliance on past discipline, including:
- A written reprimand for rude and disrespectful behavior, and
- A 5-day suspension for conduct unbecoming and failure to follow supervisory instructions.
Id.
There was one major problem with the agency’s charge, though. While the generic charge “conduct unbecoming” was appropriate in these circumstances, the narrative specification said far too much and brought up something the agency didn’t prove — intent.
If you read the entire narrative again you won’t find that 6-letter word anywhere, but the administrative judge (AJ) equated intent to “deliberate efforts to intimidate and cause anxiety to [his] supervisor,” thereby causing “disrupti[on] to the workplace.” Id. at ¶11. The AJ then held the agency failed to prove such intent. The Board disagreed and held that remand was required to consider the agency’s intent evidence. For the Board, “the question that remains is whether the appellant intended to intimidate his supervisor.” Id. at ¶14. [bold added]
The Board also said:
At the heart of this appeal is a dispute about whether the appellant intended to merely adjust his glasses, as the appellant alleged, or intended to intimidate his supervisor under the guise of adjusting his glasses, as the agency alleged. Resolution of that dispute requires a thorough credibility determination about the appellant’s explanation for his actions.
Id. at ¶15.
I can’t help but wonder, had the agency kept the specification brief, not alluded to intent in the charge but instead had relegated that argument to the penalty section, would we have a different outcome? Hundreds of cases that have come before suggesting the answer would likely be yes. Perhaps a charge drafter like this would suffice:
Charge: Conduct Unbecoming a Federal Employee
On October 24, 2016, in a meeting with your supervisor to discuss a Notice of Unacceptable Performance and Opportunity to Improve, you took a knife out of your pocket, looked at your supervisor, and said, “I always carry a pocketknife.” Your conduct caused your supervisor to become fearful for her safety.
Some of the remaining verbiage in the original narrative should either be put into the Douglas factors analysis, or removed altogether.
We’ll discuss many cases like this during MSPB Law Week, next held April 15-19. [email protected].
