By Barbara Haga, May 16, 2022

In supervisory training classes, I have heard participants comment about a double standard for corrective action. In essence, they said that if a non-supervisory employee messed up and violated some conduct rule, he would be hammered, but if it was a higher-level manager, it would be swept under the rug.

My usual response is that’s not true, which is based on my own experience. I could rattle off specifics regarding some of the cases I worked on myself or have studied thoroughly. I usually make a comment along the lines of “the bigger they are, the easier they fall,” since the Douglas factors take into account the type of position held. Also, managers are held to a higher standard.

I was reviewing decisions issued by the newly comprised Board and I was struck by the fact that several involved those high-level officials. The decision I am writing about this month particularly caught my attention because:

  1. The charge of conduct unbecoming is one I have written about more than once.
  2. Some of the specifications involved thorny actions for which it’s debatable whether they were removal-worthy misbehavior.

It is a non-precedential decision, but helpful for understanding where the lines can be drawn.

The Initial Decision

The case is Hornsby v. FHFA, DC-0752-15-0576-I-2 (April 28, 2022). [Editor’s note: Read about FELTG President Deborah Hopkins’ recent take on Hornsby.]

This was an appeal from an action that took place in 2015. Hornsby was the Chief Operating Officer for the Federal Housing Financing Administration. He was removed for conduct unbecoming, including 18 specifications.

Four of the specifications were threats. One was: “I can understand how someone could go postal. If I decide to take myself out, I will walk into Ed DeMarco’s (Former Acting Agency Director’s) office and blow his brains out and then kill myself.”

The AJ did not sustain these four specifications based on her credibility findings. This was a “he said – he said” issue. The other party was the HR Director who was subordinate to the appellant. The AJ found the appellant’s version of what he had said and done at least as credible as the HR Director’s version. The Board did not disturb the AJ’s credibility findings on these specifications.

The AJ also did not sustain the remaining specifications, which included the appellant engaging in the following actions:

  • In a meeting, he placed his hand over the mouth of the project director for the National Mortgage Database to silence him from making further comments.
  • He told two agency attorneys that a memorandum they had drafted discussing agency liability regarding data breaches might be a “career ender.”
  • On unspecified occasions when he was dissatisfied with one or more HR employees, he told the HR Director that he would outsource the HR function. Specification 13 involved saying the same thing about the Contracting Operations group.
  • He lost his composure in an HR meeting and expressed a desire to fire anyone who had complained about him.
  • He asked the HR Director to go to the former acting director and ask him to raise his Level 3 rating so that he could get an executive bonus.

The AJ found six of the specifications in this group weren’t supported with sufficient evidence. For the remaining eight specifications, the AJ found discipline wasn’t reasonable. The AJ accepted the explanation regarding the incident with the mouth-covering and determined the person with the covered mouth was a friend and he was protecting him by stopping him from talking. The AJ found that the statement about ending one’s career with a particular legal position was simply not unbecoming.

After reading all of this, I couldn’t help but think what it would be like to work in an organization whether this person would have been my second-level supervisor. I’ve worked in a situation where the person superior to the HR Director didn’t know much about how HR should work, knew very little about ER/LR, and might have made decisions that I didn’t agree with, but I have never been in a situation where that individual was threatening or malicious. I think it would make it very hard to go to work every day with optimism about what you could accomplish or the future of your program or your agency — or yourself.

The Board’s Decision

The Board reinstated the removal. Among other rulings, the Board found that even though the subordinate wasn’t offended, a manager putting his hand over an employee’s mouth in a meeting was improper and unsuitable. The Board also found the “career ender” remark was intimidating. It upheld that specification.

Regarding the specification about asking the subordinate to intervene regarding the appellant’s appraisal, the Board stated, “We find that it was improper for the appellant to do so. As previously noted, the appellant was the HR Director’s immediate supervisor. Thus, in making this request, the appellant was placing the HR Director in the untenable position of either refusing his supervisor’s request or negotiating with his former second-level supervisor for a better performance rating for his supervisor.”

The ruling on the penalty is worth reading. Many of the things cited are bad behavior that many of us may have seen in our careers. Any one of those things alone might not support significant discipline.  However, when taken together, they show a manager not operating appropriately in that role.  Only 5 of the 18 specifications were sustained. However, in the words of the Board, several of them were serious or highly serious.

Noting that Hornsby was a high-ranking supervisor who occupied a position of trust and responsibility, they found it appropriate for him to be held to a higher standard.  The Board concluded:

“Although the agency failed to establish much of the specific misconduct, the specifications we do sustain are without question quite serious. Thus, based on the specific facts of this case and the proven level of impropriety, we find that the agency’s chosen penalty is within the parameters of reasonableness and that the sustained specifications warrant removal.” [email protected]

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