By William Wiley

I’ve read them all. Yep, starting in 1979, I began to read Board decisions, and never stopped. Today, I lay claim to having read all of MSPB’s precedential decisions, having missed a few of those nasty little non-precedential decisions when they were first being issued in 2010. Otherwise, every one of them has travelled through my brain cells at least for a minute or two; some of them for hours. And if I ever saw the Board uphold an adverse action based on what you are about to read, I sure don’t remember it.

But first a little warm up hypothetical exercise before I push you down the old slippery slope. Pretend you are a second level supervisor. What would you do if one of your subordinate supervisors (S1) admitted to you that she “trusted fans of college basketball more than anyone else”? Would that cause you to take some action against S1? What if she told you that she “trusted Christians more than anyone else”? Has she crossed a line now, bringing religion into her thought processes? What if S1 told you she “trusted Eskimos more than any other race”? What if instead of Eskimos, her standard for trust was whether someone was African-American? Or, white? We’re certainly moving into some sensitive areas here. Does the same principle apply all the way down this slope? Or, is there a line in here – a legal line – that has been crossed and that requires you to do something?

Keep in mind, these hypotheticals involve only S1’s thoughts and her expression of those thoughts to you. As a federal manager, should you be taking action based on someone’s beliefs, even though there is no corresponding action based on those beliefs? Should a federal employee be punished for her thoughts?

Well, according to MSPB, the answer to this one is “yes.” In a recent decision, the Board upheld a two-grade demotion of a second-level supervisor out of supervision because, among other things, she did not take a strong enough action when one of her subordinate supervisors admitted to having one of these hypothetical biases (you get to guess which one). Spicer v. SSA, DC-0752-14-0996-I-1 (2016)(NP).

And that, my friends, makes this decision the first of its kind. At no other time in history has the Board blessed discipline based on an individual’s thoughts. Actions, yes. But an expression of thought in and of itself, I know of none. In affirming this specification, the Board stated that “it is completely unacceptable for Federal supervisors to harbor such sentiments.” “Harboring sentiments” is just another way of saying “believing” something. So is the test of what makes for an acceptable Federal supervisor what they believe, or more appropriately, what they do?

If the test is a person’s beliefs, how does one control what one believes? If my experience has shown me that tall people are more fun at parties, how do I change that belief? Can I will myself not to believe something experience has taught me? A psychologist will tell a person who has hallucinations that the road to normality is based on not acting on those hallucinations, that you recognize that they are not real, only manifestations of your mind, and act accordingly. We all have biases and those biases are not necessarily the same as those held by others. I may be biased towards people with whom I share a religious belief, country of birth (USA! USA! USA!), or favorite basketball team fan base. A civilized society recognizes that different people have different biases, and accepts those biases AS LONG AS individuals don’t act on those biases to the detriment of others.

By comparison, in an uncivilized society, those with the power tend to kill those with different beliefs. Go read a history book or watch the evening news if you need affirmation of this comparative concept.

Which brings us back to the demoted supervisor in this case. When S1 admitted a particular bias relative to trust, the appellant acknowledged to S1 that she might have a bias, but warned her not to act on that bias in the workplace. Not enough of a response, according to MSPB and the employing agency. Specifically, the Board ruled that the appellant “should have known that verbal warnings were wholly ineffective under the circumstances.” And because she apparently did not know this was, in part, one of the reasons she was demoted out of supervision.

Wow, “wholly ineffective.” Even worse than just plain old “ineffective.” Unfortunately, the Board’s decision doesn’t lead us to exactly what would have been an “effective” response on the part of the appellant when informed by S1 of her trustworthiness bias. If counseling (a verbal warning) isn’t enough, what is? MSPB’s decision notes that the appellant didn’t document S1’s disclosure. Perhaps a Letter of Reprimand: “By this letter I am reprimanding you because you expressed a bias in favor of [fill in the blank].” Written documentation, more than an oral warning … maybe that’s what the Board would accept. But is it really an act of misconduct to believe something that is an unpopular belief, a belief that it would be illegal to act on, but is still just a belief? Somewhere I got the idea in some civics class along the way that in our great country, we don’t punish people for their beliefs like governments do in other countries. Maybe the Board members had a different civics instructor.

In support of its decision to uphold discipline in this situation, the Board cites to Curry v. Navy, 13 MSPR 327 (1982). Board Practice Strategy: Always be suspect of authority relied on by MSPB if it goes back three and a half decades with no intervening case citations. Somebody was really digging to justify this disciplined-for-thoughts outcome. And when your suspicion leads you to read Curry, you’ll find that in that case, Supervisor Curry made sexist remarks about women to a female apprentice in a “coercive and disparaging” manner, to my read a significantly different situation than this unique case. Also, you’ll find that even though the parenthetical statement contained in Spicer summarizing the Curry holding says that Supervisor Curry’s statements were found to be “discriminatory,” the Curry decision itself reverses the judge’s discrimination finding as “clearly erroneous.” So what we are left with for bias-discipline authority is a sole contemporary citation in Spicer to a prior Board decision from 35 years ago that involved a supervisor making degrading remarks about women to a young non-supervisory woman, that is incorrectly characterized as discriminatory.

And the Board calls this Spicer decision “non- precedential.”

There are acts of misconduct in the Spicer case separate from the punishment-for-thoughts aspect discussed above that likely would support the demotion on appeal. On a personal level, I don’t like the thoughts expressed by S1. However, my personal liking or disliking someone else’s biases, and the fact that there was other disciplinable misconduct in this case, does not detract from the fact that the Board has now opened the gates for the disciplining of individuals based on their thoughts.

Good thing I’m not within the Board’s authority to discipline me any more. Because if they knew what I’m thinking …

OK, let’s see if I can end on an uplifting note. Here are a couple of teachable takeaways from this case that might be of use to you management officials out there:

  • Sometimes we get a question in a class as to how far back can an agency go when disciplining for misconduct. Some of the critical supervisory conduct in this case preceded the proposed demotion by five years. That should bring you some comfort if you’re dealing with a situation involving old misconduct.
  • The specifications in this case could easily have been the basis for initiating a 432-PIP, going down the other legal path for holding employees accountable. However, 432 removals are based on what happens in the future (during the PIP). This agency clearly wanted to 752-discipline the employee for things that had happened in the past without giving her a chance to show whether she could improve her performance. In a case like this, an agency has a choice of roads to take, the selection of which depends on the outcome desired.
  • The charge in this case appears to have been “Negligent Performance of Duties.” In its decision, the Board reminds us of the elements of this performance-based charge: Failure to exercise the degree of care required under the particular circumstances, which a person of ordinary prudence in the same situation and with equal experience would not omit. Citing to Velez v. DHS, 101 MSPR 650 (2006).

And on that note of clarity, we rest our case. [email protected]

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