By Deborah J. Hopkins, April 22, 2024
Have you ever thought about this: Allegations of workplace harassment are allegations of employee misconduct. It’s one of the first things we discuss during Conducting Effective Harassment Investigations (next offered April 30-May 2). The behaviors that form the basis of harassment complaints often rise to the level of misconduct, regardless of whether there is a finding of a hostile work environment or a violation of an agency’s anti-harassment policy or Title VII.
In a recent MSPB case, a USPS maintenance supervisor was removed for improper conduct after one of his subordinate female employees made a harassment complaint against him. Ruff v. USPS, DC-0752-16-0840-I-2 (Feb. 5, 2024)(NP). The case and its corresponding initial decision identified numerous instances of harassing conduct over a five-month period. The appellant:
- Made sexual comments and gestures toward the subordinate.
- Asked her if he could rub her back, to which she responded “no.”
- Asked her if he could come to her house and told her he wouldn’t tell anyone if she said yes.
- Sent her text messages that stated, “I want u” and “What’s up babe.”
- Approached her and asked her to view a picture of his penis on his cell phone.
- Moved his phone toward his crotch and informed the subordinate if she wanted him to take a picture of his penis he could, as long as she promised not to tell anyone.
The appellant challenged his removal. At the hearing, the administrative judge (AJ) assessed the credibility of the evidence, including the testimony proffered by both the appellant and the subordinate employee. The AJ found the employee’s testimony to be more credible: “With regard to [the employee], I observed her demeanor closely at the hearing and I find that her testimony was straightforward, consistent, and unrehearsed. I also find that her hearing statements are materially consistent with her written and oral statements before, during, and after the investigation.” ID at 26.
(Well done, investigator – and well done, agency reps, who prepared the employee for hearing.)
The appellant challenged the subordinate’s testimony. He claimed she falsified it because she wanted his job. However, he provided no evidence to support his claim. On the appellant’s credibility, the AJ was not persuaded, especially because the “appellant appeared willing to alter his version of events on the spot. ID at 16,” and his version of events were inherently improbable. The AJ was also not convinced by the appellant’s allegations that the subordinate employee was actually someone who harassed male employees in the agency.
The initial decision specifically mentions some of the Hillen factors (Hillen v. Army, 35 M.S.P.R. 453, 458-60 (1987)), which we discuss in detail during our investigations classes. As you can tell from this case, the investigator did a thorough job determining the facts and provided the agency, the AJ, and ultimately the Board, with important information that helped clarify the events that occurred in and around this postal facility. [email protected]
