In a nonprecedential MSPB decision, the Board affirmed the agency’s removal of a naval postal supervisor for making statements that resulted in disruption and anxiety in the workplace. The agency also lodged an absence without leave charge after the appellant was barred from the military installation. The Board found the seriousness of the appellant’s statements to a VA Crisis Hotline in which he referenced the 2013 Washington Navy Yard shooting and threatened to kill several people was sufficient to warrant his removal. Because the first charge regarding the appellant’s statement to the VA Crisis Hotline was sufficient to sustain the removal, the Board found it unnecessary to address the AWOL charge.
BACKSTORY: In April 2015, the appellant called the Veterans Administration (VA) Crisis Hotline and made a reference to the Washington Navy Yard shooting (in which 13 people were killed on September 16, 2013). According to the VA responder who took the appellant’s call, the appellant also threated to kill several people and then commit suicide. Individuals from the Crisis Hotline contacted the Naval District of Washington regarding the statements. As a result of the safety concerns raised by the statements, the commanding officer of the NDW installation where the appellant worked issued the appellant a debarment letter and NDW officers escorted him out of his work location the same day. Although the agency initially placed the appellant on administrative leave, his supervisors informed him that unless he was able to resolve the debarment letter he would be placed on AWOL. The agency removed the appellant for making statements that resulted in disruption and anxiety in the workplace and AWOL. Although the appellant appealed to the MSPB, an administrative judge affirmed the agency’s action. Although the administrative judge questioned whether the appellant’s absence was beyond his control and called it a “difficult one,” she ultimately sustained the charge.
WHY IT MATTERS: Despite being labeled as “nonprecedential,” this case illustrates the correct charge when an employee makes threatening statements in the workplace as well as the seriousness of such an offense. In charging “making statements resulting in disruption and anxiety in the workplace,” the agency does not have to prove the “threat” factors as stated in Metz v. Dep’t of the Treasury, 780 F.2d 1001 (Fed. Cir. 1986). See also McCarty v. Dep’t of the Navy, 67 MSPR 177 (MSPB 1995).
OTHER LEARNING POINTS: This case also highlights a common mistake made by agency, i.e., lodging a throw-away charge. Because of the seriousness of the threatening statements, there was no need for the agency to lodge the AWOL charge. The agency made its case harder and luckily the Board agreed that the sustained charge standing alone warranted removal. In its penalty determination, the Board analyzed the penalty as if the agency did not prove all the charges. This demonstrates that in some circumstances a “throw-away” charge could affect a penalty determination. As stated above, the agency was fortunate that the Board found the agency’s penalty selection was reasonable considering the sustained charge.
The case is Johnson v. Dep’t of the Navy, DC-0752-16-0064-I-1 (April 14, 2023); 2023 MSPB LEXIS 2004 (Apr. 14, 2023).
