By Barbara Haga, August 19, 2020
This month I am going to leave COVID issues and turn to another topic that is also very timely. This one is about an employee making disparaging remarks that were racial in nature to and about other employees. This case was included in last week’s MSPB case report. I am exaggerating a bit when I say “ripped from the headlines” since you would have to have seen the weekly Board report to find this, but this type of bad behavior in the workplace is exactly the kind of thing that could make the news if the press picked up on it. I can just see it – High-level FAA Manager Fired for Racist Texts. The case stems from a report of misconduct made in 2017 followed by a removal in March 2018. The employee appealed to the Federal Circuit after the MSPB AJ upheld the removal.
The case is Jenkins v. Department of Transportation, No. 2019-2075 (Fed. Cir. Aug. 6, 2020). Cara Jenkins was the Chief of Staff to the FAA’s Associate Administrator for Human Resources. I did a bit of checking on what her position was and found her listed as Assistant Administrator for Human Resources on their HR website. That position is head of human resources for all of FAA’s 45,000 employees. While the title is not an exact match, it looks like that may have been the position Jenkins was supporting, because her pay level, according to Federalpay.org was “among the highest-paid 10 percent of employees in the Federal Aviation Administration.”
The decision notes that she had been employed for nearly 30 years and held the Chief of Staff position for one year prior to her removal. Jenkins, in addition to being part of the work of the human resources organization, was also a supervisor.
The charges contained in the proposed removal included (1) inappropriate conduct, (2) making disparaging remarks racial in nature, and (3) lack of candor.
Jenkins sent a lot of inappropriate text messages. In fact, the removal notice included 18 specifications under charge 1 and 22 under charge 2. Each specification was a separate text message that negatively referenced one or more colleagues or contained a racial comment about a colleague. Jenkins sent these messages to at least two subordinates. The decision states:
In 2017, one of Jenkins’s subordinates, Sharon Bartley, complained to the FAA Accountability Board that Jenkins had created a hostile work environment. In support of her complaint, Bartley provided the Accountability Board with a number of personal cell phone text message exchanges that she had with Jenkins. Many of the text messages were disparaging toward Jenkins’s colleagues, including senior officials at the FAA. Moreover, many of the messages contained derogatory comments about the race and gender of Jenkins’s colleagues.
During the investigation, another employee (apparently a contract employee), Lavada Strickland, provided copies of text messages she had received that were of a similar nature.
Jenkins was interviewed about text messages she had sent to Bartley. She denied sending them, saying “I do not admit to the validity of these messages … They are allegedly from [a] phone identified as ‘Cara’ with no phone number … I am not saying I did not send them but that I simply do not remember sending some of them.”
However, she apparently gave consent for search of her phone because the investigator exported texts she had sent and that is noted in the investigative report. I can only surmise that she gave consent for that search, since all of the cited messages were sent using personal cell phones and no government resources, as Jenkins later argued in her defense.
The Federal Circuit decision does not quote the racial remarks included in the texts, but they do mention specifics from some of the texts included in the lack of candor charge. In several sections of the decision, the Federal Circuit mentioned that Jenkins sent texts wherein she described other human resources employees as “… backstabbers, dumb and that they did not know how to do their jobs.”
One of the employees interviewed stated that her supervisor “really had me believing a lot of things about people in HR/Leadership.” As noted in the decision notice, Jenkin’s misconduct “… undermined the credibility and managerial authority of senior officials at the FAA.”
Jenkins’ arguments at the Federal Circuit did not convince the Court that her removal was not warranted. Two of the arguments were that the FAA had not proven lack of candor and that the penalty was too harsh. Neither succeeded.
The other argument is important for cases like this. She argued that there was no nexus. The decision explains the reasoning that nexus was proven:
Jenkins also argues that there is no nexus because her comments “were intended to be and were private using personal cell phones and no government resources.” Appellant Br. 29. Jenkins contends that “private off-duty speech is not intended to be the government’s business” and “searching private speech for statements potentially subject to discipline is beyond the government’s reach.” Appellant Br. 38. But this is not a case in which the Agency violated Jenkins’s right to privacy or free speech by illegally searching Jenkins’s private communications for disciplinable conduct. The offending text messages were provided to the Agency by its employees, Bartley and Strickland, in connection with the Agency’s investigation into a complaint about a hostile work environment. Once Jenkins’s misconduct and its effect on the work environment became known to the Agency, there was no law, rule, or regulation that prevented the Agency from addressing the misconduct merely because Jenkins used a personal phone to send messages that she “intended” to be private.
How can someone who harbors the sentiments that Jenkins expressed rise to the level she did in any Federal agency and manage not to have exposed those beliefs somewhere before? One of Jenkins’ arguments regarding the penalty included that she had a clean record, so no one had officially taken her to task over such behavior in any significant way that remained in her OPF.
Part of what struck me about this case was how closely it followed on the heels of something similar that happened with a broadcast on Facebook. The story reported on June 7 involved retired Navy Captain Scott Bethmann who accidentally broadcast about 30 minutes of his and his wife’s racist diatribe. He is a Naval Academy graduate and apparently served successfully for a full-term military career. What is so shocking to me is how he served so long without showing his true colors.
I heard third hand that an African American officer who had served under Bethmann said that he never saw it. He never had any clue from anything Bethmann said or did that he (Bethmann) believed the things that he said during the Facebook broadcast.
I understand that racism can be hidden and subtle, but how is someone enough of an actor to pull off a 20- or 30-year career and never slip up in front of someone willing to take the issue on? Or, is the problem that others in positions of authority do see it, but they don’t think they can discipline since there was no overt action, or, frighteningly, they agree? I can’t solve the second part, but at least you now have a recent case that describes when a removal action was supported. It’s a small thing in the big picture, but hopefully a step in the right direction. Haga@feltg.com