By Barbara Haga, October 14, 2020
Last month, I wrote about Lee v. Federal Aviation Administration, No. 2019-1790 (Fed. Cir. July 29, 2020) and explained that it had a lot of issues in it that I wanted to cover. This month, we will continue with the discussion of the Douglas factor “potential for rehabilitation.”
A Favorite Case
Anyone who has ever been in a discipline course with me has heard about this case. It demonstrates important issues related to the lack of potential for rehabilitation. This case is so unbelievable that it could have been on an episode of Ripley’s Believe it or Not! The case is Dolezal v. Army, 58 MSPR 64 (1993). The decision was affirmed without opinion by the Federal Circuit in 1994.
Dolezal was the Assistant Deputy Chief of Staff for Base Operations Support (Civilian Personnel) for the Training and Doctrine Command of the Army. He was the chief civilian personnel officer for 40,000 civilian employees nationwide. He was appointed to the Senior Executive Service in 1991 and held an ES-3 position at the time of the events that led to his removal.
As the director of personnel for TRADOC, he supervised an employee named Cline, who was the GM-15 Director of the Peninsula Civilian Personnel Support Activity (PCPSA). One of Cline’s direct subordinates was Hamilton, a GM-13 HR practitioner who held the position of Chief of the Operational Support Division at PCPSA. Dolezal was the reviewing official for all personnel actions that pertained to Hamilton, including performance appraisals, promotions, and awards. Both Dolezal and Hamilton were married, but they began a social relationship in the fall of 1991 and by the end of that year the relationship had become sexual. They used the agency’s e-mail system to “… conduct voluminous personal and, occasionally, sexually suggestive correspondence ….” So, we have two HR practitioners engaged in a sexual relationship and one is the second-level supervisor of the other and it is all being recorded in the agency e-mail system.
I cannot imagine how anyone involved in this situation could have expected this would have a happy ending.
In 1992, Cline began to suspect that Dolezal was sexually harassing Hamilton. She asked Hamilton if this was the case, but according to Cline, Hamilton gave an equivocal response about whether the apparent relationship was consensual. Subsequently Cline reported the matter to the agency’s IG.
Response to the Allegations
As a result of the investigation, Dolezal was charged with:
- Conduct unbecoming a Federal employee, with two specifications: (1) the “adulterous relationship with a subordinate female employee” in violation of Army disciplinary guidelines and (2) he made “disparaging and demeaning comments” about Cline in some of his e-mails to Hamilton.
- Violations of the standards of conduct in that his relationship with Hamilton could reasonably be expected to create the appearance of giving preferential treatment to Hamilton; could reasonably be expected to result in impeding Government efficiency; could reasonably be expected to create the appearance that he had lost independence or impartiality … and, could reasonably be expected to adversely affect the confidence of the public in the integrity of the Government and (2) that he wrongfully and without authority misused Government equipment in violation of Army guidelines by sending “numerous messages of a personal nature” to Hamilton via the e-mail system.
What was Dolezal’s response? He admitted he had an affair with Hamilton, that he used the e-mail system to send numerous love letters to her, and that some of those e-mails contained remarks that disparaged Cline. What did Dolezal raise as a defense?
There were several. He claimed that the penalty was too severe, that the penalty didn’t fit the table of penalties, and that comparators were subject to lesser penalties. He also said that his use of the e-mail system to send notes to Hamilton was part of widespread misuse throughout the organization and thus it was unfair to discipline him. His answer regarding his comments about Cline were private remarks between friends and, in his words, “… were common in the workplace and not actionable.” The attempts to deflect responsibility seem minor compared to Dolezal’s main argument that the affair was none of the agency’s business.
Dolezal had 23 years of service, no prior discipline, and what was described as an exemplary record. However, the agency decided to remove him. The AJ upheld the penalty, as did the Board.
Hamilton was also disciplined. According to the Dolezal PFR, she was demoted from a GM-13 to a nonsupervisory GS-12 position for her part in the misconduct and for making a false statement to the IG investigator.
Potential for Rehabilitation
The first time I read this decision, I was in shock. The head of HR for a headquarters-level Army command doesn’t know that an affair with a second-level subordinate is a work issue? Instead of taking responsibility for the things he admitted to, his answer is that it has no impact on his job?
How did the AJ respond to this argument? She wrote, Dolezal “… is not a good candidate for rehabilitation because he has yet to recognize that he committed actionable offenses.”
The Board noted that the argument was raised again on the PFR, writing, “Even at this late date, the appellant still does not understand the serious nature of his misconduct. He still contends that his affair with Hamilton was none of the agency’s business and he still denies that his flagrant misuse of PROFS (the e-mail system) and his offensive and demeaning comments about Cline are actionable misconduct.”
In the PFR, Dolezal claimed he showed contrition for the misconduct. The deciding official characterized it differently. The deciding official recounted that Dolezal showed some remorse for the difficulty caused by the IG investigation but never took ownership of the underlying inappropriate behavior. Would things have been different if he had taken responsibility when the IG investigation began? What if he had said he would go to counseling, or if he said he would not have further contact with her, or if he just said I did those awful things that no head of HR should ever do and I deserve some significant disciplinary action? Would the Army have chosen a lesser penalty? We will never know.
Dolezal was guilty of one other thing – very bad timing. The Tailhook scandal grew out of events that took place in the fall of 1991, so attention on inappropriate behavior of a sexual nature in DoD was at an all-time high at that point. Dolezal argued in the PFR that he was being treated as if he were a military officer in regard to this action because the deciding official testified that a military officer who engaged in similar misconduct would have been court-martialed. The Board interpreted that to mean that the deciding official felt that the misconduct was serious, not that an inappropriate standard was applied. Haga@FELTG.com