April 8, 2008

 

A federal supervisor engaged in retaliatory and harassing behavior against a subordinate, and thus was properly subjected to discipline, even though the supervisor did not take an adverse personnel action against the subordinate within the meaning of the Whistleblower Protection Act (WPA), the Federal Circuit ruled recently.

In this case, the federal supervisor worked for the Department of the Army as a Supervisory Firefighter. While he served in that position, he submitted inaccurate time statements that over-reported the overtime hours that he and seven of his subordinate firefighters spent in completing training exercises at the Army’s Yakima Training Center (YTC). 

 

Another firefighter posted at YTC, who was subordinate to the supervisor, discovered the inconsistency and reported it to the YTC Base Commander. In response, the agency conducted an internal investigation. During the course of the investigation, the supervisor made comments about the presence of a “rat” at the YTC fire station. He also hung a large rat trap on the wall in a prominent location at the station, attaching a piece of paper defining a “rat” as “a contemptible person; as one who betrays or deserts friends or associates.”

Based on the investigator’s findings, the agency proposed to demote the supervisor for “Supervisory Misconduct.” The agency cited three specific charges to support its proposed demotion action: 

 

(1) Allowing false time cards to be processed resulting in overtime payment for unearned overtime for the supervisor and his subordinates; 

 

(2) Falsification of the official fire department incident report; and 

 

(3) Retaliatory behavior directed against a subordinate for his protected activity. Ultimately, the supervisor was demoted one grade to the non-supervisory position of “Firefighter” based on the first and third charges. Eventually, the supervisor appealed to the Federal Circuit.

Before the Federal Circuit, the supervisor argued that the charge of “retaliatory behavior directed against a subordinate for his protected activity” should not have been sustained because there was no proof of an adverse “personnel action” against the subordinate. The supervisor contended that the term “retaliatory behavior” should have been interpreted in such a way as to require the agency to prove the elements of the Whistleblower Protection Act, including proof of a “personnel action.”

In response, the Army countered that the agency did not charge the supervisor with taking or threatening to take a “personnel action” against the subordinate, or in any way refer to the WPA in its charging documents. The Army argued that the charging documents indicate that the essence of the charge is the supervisor’s improper harassment of a subordinate and the creation of a hostile work environment at the YTC fire station. Moreover, the agency contended that the supervisor’s application of the WPA to this case was inconsistent with the statute’s central purposes, since the supervisor was seeking to invoke the statute as a shield to insulate himself from the effects of his own misconduct.

In its decision, the Federal Circuit sided with the government, explaining that the use of the term “retaliatory” in a charge does not mean the government must prove that the supervisor engaged in an adverse “personnel action.” The agency has the right and the duty to discipline employees, particularly supervisors who engage in acts of harassment, in order to promote the “efficiency of the service,” the appeals court stated.

The Federal Circuit went on to explain that the essence of the agency’s third charge was not that the supervisor violated the WPA, but rather that his behavior in hanging the rat trap and commenting about the presence of a rat at the YTC fire station led to a hostile work environment

 

In the specifications underlying the charge in the proposal letter, the agency characterized the charge as “retaliatory and harassing behavior that created a hostile work environment.” The appeals court found that the agency took action because of the supervisor’s “lapse in judgment” when he displayed the rat trap during an ongoing investigation, which could be “construed as harassment.” Therefore, the third charge was properly sustained.

Lastly, the Federal Circuit concluded that demotion to a non-supervisory position was an appropriate penalty.

The case is George v. Army, U.S. Court of Appeals for the Federal Circuit, No. 2007-3166, February 7, 2008. 

 

http://www.fedmanager.com/article.php?ID=539

 

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