By Deborah J. Hopkins, October 16, 2023

The Merit Systems Protection Board has taken a several-week break from issuing decisions while it updates its e-Appeal online system. The system was scheduled to come back online this week.

In the meantime, I wanted to highlight an interesting recent case involving a supervisor who was demoted for conduct unbecoming, but who the Board reinstated because the supervisor’s impatient and unprofessional demeanor did not rise to the level of actionable misconduct. Glass v. Treasury, NY-0752-19-0200-I-1 (Aug. 16, 2023)(NP).

The appellant, a supervisory national bank examiner, was demoted based on five specifications of conduct unbecoming a supervisor.  According to the case, the misconduct involved the supervisor’s interactions with four subordinates and the specifications all related “to the manner in which the appellant dealt with these individuals regarding work-related matters.” Id. at ¶7. The administrative judge (AJ) agreed with the agency and upheld all five specifications and the demotion.

The Board, however, disagreed. Among the relevant details:

Specification 1: The appellant addressed one of his subordinates in a scolding manner, told him his work-related project explanations were “not a good excuse,” and told the subordinate that he was ill-prepared for a meeting. In addition, he called the subordinate a liar during a performance review.

According to the Board, “It is the job of a supervisor to address the performance of his subordinates and the making of inaccurate or false statements about a work-related matter is serious. Although the appellant’s language may have been direct or indelicate, that does not make his conduct actionable.” Id. at ¶9.

Specification 2: The appellant was having a discussion with another of his direct reports and was trying to clarify how many work items were pending. When the direct report did not understand the appellant’s question, “the appellant held up one finger from each hand in her face and said, loudly enough so that others could hear, words to the effect of ‘Here’s one finger and here’s one finger. How many fingers?’” in front of several other staff members. Id. at ¶10.

The AJ found this behavior disrespectful and inappropriate because the direct report felt intimidated and embarrassed. The Board disagreed and said the appellant was asking for information about a work-related matter, which is a supervisor’s responsibility, and even if the statement was exaggerated and made the subordinate feel uncomfortable, it did not rise to the level of actionable misconduct.

Specification 3: This specification involved the same direct report from Specification 2, above. In this instance the direct report asked the appellant a question about a work-related matter and the appellant responded, “We have talked about this five times!” Id. at ¶12.The AJ found that the appellant’s obvious annoyance and anger was not tactful and was unbecoming a supervisor, but the Board disagreed because the conversation was about “a work-related matter and his response to her was in the context of his supervisory role…To the extent that the appellant’s response reflected that he was frustrated by the question, it does not amount to actionable misconduct.” Id. at ¶13.

Specification 4: The appellant asked a different subordinate to schedule a meeting to include him and two other agency officials, and after the subordinate made several attempts to confirm the appellant’s attendance, he replied, “I told you this three times. We have to go over this again?” Id. at ¶14. As in Specification 3, the Board held that the discussion was work-related and the appellant was acting within the scope of his responsibilities, and even if he appeared annoyed and made his subordinate feel belittled, it did not rise to the level of actionable misconduct.

Specification 5: In an email exchange between the appellant and one of his direct reports, he told her to “submit her questions either to him or another named individual, and to ‘PLEASE stop emailing’” another agency employee. Id. at ¶16. The AJ found the tone of the email unprofessional, but the Board disagreed. It held a supervisor has authority and responsibility to “direct who should be provided certain information and to whom questions should be addressed. Putting a written word in all capital letters is generally intended to draw the reader’s attention to it.” Id. at ¶17. Although the subordinate testified she felt “beaten up” by the email, according to the Board “those feelings cannot serve to turn the appellant’s email into actionable misconduct.” Id.

If you are surprised by this outcome, let me draw your attention to a footnote where the Board explained, “We do not suggest that a supervisor’s conduct may never be actionable and therefore supportive of discipline, but only that the appellant’s conduct in this case does not rise to that level.” Id. at p. 7. For more on advanced topics such as these join us for the all-new program Advanced MSPB Law: Navigating Complex Issues, October 31 – November 2. [email protected]

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