By Barbara Haga, November 26, 2018

Holiday parties will be held soon and, inevitably, there will be some bad behavior that goes along with them. It seemed prudent to look at a 2017 case that involved all of the items mentioned in the title and a subsequent removal sustained based on them. It is an interesting case that includes the issue of contact between coworkers, not a supervisor per se, he said/she said explanations of what happened, and the use of a general charge of conduct unbecoming. I’m guessing this one may be in that pile of over a thousand petitions for review, but for now let’s see how the AJ ruled.

The case is Doe v. Air Force, DA-0752-16-0100-I-2 (2017). The appellant asked that the case be processed anonymously, and the agency requested that the names of the witnesses be protected. There are three primary players in the case – Doe, his girlfriend, JD, and the person who reported unwanted sexual contact, KB.

Doe was an Air Traffic Control (ATC) Specialist (Terminal), GS-2152-12, working for the Air Force in Oklahoma. He was a former active duty Air Force ATC. JD and KB were also ATCs, except KB was a military member. JD had worked on the same shift with Doe, but once they started dating, she moved to another shift per management’s direction. Doe and KB worked on the same shift. All three were good friends, as stated in the decision. KB was married, but her husband was out of town during the events recounted in the decision.

The 2014 Holiday Party

The events that led to the removal began with the holiday party at a local restaurant and banquet hall. Doe, JD, and KB sat together at the party. From the decision, it is clear that there was a significant amount of drinking throughout the evening and into the next morning. The party at the commercial facility ended and progressed to an after-party in a co-worker’s barn. Later in the evening, the after-party got out of control and the owner ended the party. The owner specifically asked Doe to get KB out of the after-party because “she was out of control and making everyone uncomfortable.” The owner told him that people reported seeing KB kissing another female airman. Doe acknowledged in a statement in response to the proposed removal that KB lacked judgment because she kissed him and JD on the mouth in front of others at the after-party.

Doe arranged for transportation home from the after-party for himself, JD, and KB. The driver stopped at Doe’s house, and everyone went in and continued to party. For an unexplained reason, KB did not continue on with the driver when he left and instead remained in Doe’s house. JD prepared to go to bed and apparently slept through everything that happened thereafter. KB ended up in the bed with JD and Doe.

What occurred next depends on whose version you find more credible. There was either no sexual contact or unwelcome sexual contact. KB eventually called another coworker and his wife to pick her up and take her home after the incident. She called her husband and told him her version of what had happened and reported the contact to her First Sergeant the next day.

Charge and Specifications

The removal — effective in October 2015 — was based on one charge of conduct unbecoming. The specification read as follows:

On or about December 7, 2014, approximately between the hours of 0100 and 0300 hours, you brought Senior Airman (SrA) KB, a junior enlisted Airman, to whom you provided training and on-duty supervisory oversight, to your home. SrA KB was intoxicated from consuming alcoholic beverages. You initiated unwelcome sexual contact with SrA KB in your bed. To wit: While SrA KB was in your bed you kissed her stomach and vaginal area before digitally penetrating her vagina. DNA evidence confirmed she was in the bed in which you sleep, the same bed in which the unwelcome sexual contact occurred. Because of your actions, SrA KB required premature relocation away from Vance Air Force Base to another Air Force Installation in another state. Your conduct was improper and harmed the efficiency of the service.

Credibility

In this 21-page decision, there are roughly nine pages of discussion regarding credibility. The AJ acknowledged that KB was not the “model” airman, but the AJ found KB’s version of the events more credible than Doe’s. If you want to read a very detailed accounting of the AJ’s view of each version of the events, this is a good analysis.

Doe’s Job Duties

In many agencies, the first reaction to the report of this type of conduct would have been that there was not sufficient nexus between the misconduct and Doe’s position to be able to take an adverse action. Some would view this as being outside the range of actionable misconduct because Doe was not classified as a supervisor and clearly not her supervisor. The events recounted were entirely a matter of off-duty misconduct between coworkers, one civilian and one military. However, the Air Force successfully showed that there was a nexus and that the behavior was unbecoming.

The Air Force policy on personal relationships, “Dress, Appearance, and Relationships,” provided:

4.4. Relationships. While personal relationships between Air Force employees or between Air Force employees and military members are normally matters of individual choice and judgment, they become matters of official concern when they violate existing law or impede the efficiency of the service.

4.4.5. Actions in Response to Unprofessional Relationships. When unprofessional relationships impede the efficiency of the service or adversely affect the mission, appropriate corrective action should be taken IAW AFI 36-704.

The AJ noted that the Board generally recognizes three independent means by which an agency may show a nexus linking an employee’s off-duty misconduct with the efficiency of the service: (1) a rebuttable presumption of nexus that may arise in “certain egregious circumstances” based on the nature and gravity of the misconduct; (2) a showing by preponderant evidence that the misconduct affects the employee’s or his co-workers’ job performance, or management’s trust and confidence in the employee’s job performance; and (3) a showing by preponderant evidence that the misconduct interfered with or adversely affected the agency’s mission. (Kruger v. Justice, 87 FMSR 5004 (1987)).

In this case, the AJ found that the record showed that there was impact on Doe’s job performance. While he was not a supervisor in the classification sense and was not in the military chain of command over KB or other military ATC’s, he performed the duties of a senior level ATC, and those duties required a high level of trust and interaction between him and his co-workers. Because of Doe’s level of experience, he was required to occasionally perform the duties of a controller-in-charge. While performing the duties of a controller-in-charge, the appellant was responsible for the entire Radio Approach Control operation. This included monitoring, and intervening if necessary, in the ATC’s handling of air traffic in and around the base. At any given time, there could be as few as one or two ATC’s handling air traffic, or dozens. During his duties as an ATC, and in an ad-hoc supervisory role as the controller-in-charge, he had to perform these critical duties in two-person teams while controlling many flights.

The deciding official testified that “… it was essential that ATCs not have any distractions because of personal conflicts, animosity of others, or any other type of anxiety.” He testified that it is of paramount importance that the ATCs are focused solely on controlling the (air) environment and keeping planes from running into each other. He explained that anything that would result in an ATC doubting his co-workers or his leadership could result in “taking attention away from their responsibility of monitoring the ‘very complex’ puzzle air traffic on their (radar) scope, which could be devastating.”

Lessons from the Decision

Clearly there were a series of poor decisions on both Doe’s and KB’s part in this unfortunate situation. The deciding official’s testimony noted that Doe never took responsibility for his actions, and that led to a conclusion that there was little potential for rehabilitation. In spite of a policy that talked about personal relationships that could become matters of concern, Doe made choices, in the agency’s view, that were inconsistent with his duties as a trainer and controller in charge. That resulted in a loss of confidence in his ability to meet his job’s requirements.

I hope you don’t have any repercussions from any holiday parties attended by employees of your agency this year. Before the party begins, consider this gentle reminder: After the party when the alcohol wears off, the party clothes are put away, and everyone is back in their appointed places, you still have to be able to look each other in the eye and work together – coworkers and supervisors alike! Haga@FELTG.com

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