Professional Documents
Culture Documents
480 (1993)
NOTICE TO APPELLANT
You have the right to request further review of the Boards
final decision in your appeal.
ORDER
*482 Discrimination Claims: Administrative Review
After full consideration, we DENY the agencys petition, and You may request the Equal Employment Opportunity
the appellants cross petition, for review of the initial decision Commission (EEOC) to review the Boards final decision on
issued on January 12, 1993, because they do not meet the your discrimination claims. See 5 U.S.C. 7702(b)(1). You
criteria for review set forth at 5 C.F.R. 1201.115. This is themust submit your request to the EEOC at the following
Boards final order in this appeal. The initial decision in this address:
appeal is now final. 5 C.F.R. 1201.113(b).
ORDER
demotion penalty. She found that the agencys decidingadversely affect Andrewss career, while a favorable statement
official had erred in considering a written reprimand issued to might help her career. These actions had the effect of
the appellant on August 17, 1988,2 because it was not given tointerfering with the agencys investigation into the August 17
the appellant until after the August 17, 1988 incident with incident between the appellant and Garcia, and constituted a
Garcia, and because the reprimand had been removed from theserious abuse of the appellants position as a supervisor. See
appellants Official Personnel File in 1989.
Taylor v. U.S. Postal Service, 49 M.S.P.R. 155, 160, 164
(1991) (sustaining charges of interfering with an agency
The administrative judge then undertook an independent investigation for advising a subordinate that she did not have
assessment of the relevant factors to determine if the agencysto speak to postal inspectors and intimidating witnesses, and
penalty was within the limits of reasonableness. Although the finding that these offenses, together with a sustained charge of
administrative judge found that the appellants comments to an abuse of *486 authority, constituted very serious acts of
Garcia were inappropriate, she found that they did not misconduct, particularly in light of the appellants position as
constitute serious misconduct.3 Although stating that the a tour superintendent).6
appellants willful disregard of Medlocks direction not to
speak to Andrews was the more significant of the twoI find no support in the transcript of the appellants testimony,
offenses, the administrative judge found that the maximum or in her written response to the agencys proposal to demote
reasonable penalty was a 30-day suspension, considering the her, for two of the mitigating factors cited by the
following factors: (1) The appellants more than 20 years ofadministrative judge-that the appellant acknowledged that her
service with the agency; (2) her successful work performance;conduct was inappropriate, and that she expressed remorse
(3) the lack of prior discipline or counseling at the time of the over that conduct. See HT at 131-64; IAF, Tab 6, Subtab 4C.
charged incident; (4) her acknowledgment *485 that herRegarding other factors relied on by the administrative judge,
conduct was inappropriate, and (5) her expression of remorsethe agencys deciding official did not ignore the appellants
over that conduct.
lengthy period of Federal service and her work performance.
See HT at 86-87. Indeed, absent those factors, I believe a more
In its petition for review, the agency contends that the severe penalty, up to and including removal, would have been
administrative judge erred in mitigating the demotion penalty.4justified.7 In my view, the appellants willful disregard of her
The appellant has filed a cross petition for review, arguing that managers directions, and especially the nature of her
the 30-day suspension imposed by the administrative judge is statements to Anita Andrews, were wholly inconsistent with
too severe under the circumstances.
the trust the agency had placed in her as a supervisor, and the
agencys action demoting her to a nonsupervisory position was
a limited and measured response to the nature and seriousness
of the offense. Cf. Taylor, 49 M.S.P.R. at 164 (sustaining the
removal penalty, despite the appellants 15 years of service
ANALYSIS
and history of good work performance, because the nature and
seriousness of the offenses overshadowed these mitigating
The Board will review an agency-imposed penalty only to factors).
determine if the agency considered all the relevant factors and
exercised management discretion within tolerable limits ofFor the above reasons, I respectfully dissent from the
reasonableness. Douglas v. Veterans Administration, 5 MSPBmajoritys decision to affirm the initial decision.
313, 5 M.S.P.R. 280, 306 (1981). I agree with the
administrative judge that the offense of verbally abusing a
clerical employee was not so serious as to warrant the
appellants demotion. As the administrative judgeAll Citations
acknowledged, however, the charge of willfully disregarding
the direction of her supervisor not to talk to Andrews was the 59 M.S.P.R. 480 (Mem)
more serious of the two charges.5
An employees deliberate refusal to follow her supervisors
instructions is serious misconduct. Sepulveda v. Department of
the Interior, 38 M.S.P.R. 449, 451-52 (1988). The appellants
insubordination was especially serious because, not only did
she herself disregard her supervisors direction not to speak to
Andrews, she also tried to persuade Andrews to disregard
Medlocks instructions to provide a written statement
concerning the incident, and she suggested to Andrews, a
subordinate, that a negative statement about her might
2015 Thomson Reuters. No claim to original U.S. Government Works.
Footnotes
1
Except as noted, the following account has been digested from the findings of the administrative judge
in the initial decision, which have not been disputed in the petition for review or cross petition for
review.
This reprimand related to an incident on June 13, 1988, in which the appellant allegedly uttered
obscenities to another employee in a loud voice. See Initial Appeal File (IAF), Tab 6, Subtab 4J.
In so concluding, the administrative judge found that the telephone conversation with Garcia did not
create a disturbance in the appellants work area, that although Andrews indicated that she was
shocked by the appellants conduct, she did not report the incident to Medlock until several days later,
and that although Garcia reported the incident to her supervisor the same day it happened, that
supervisor did not contact Medlock or the appellant about it. Initial Decision at 11-12.
The agency argues in part that the administrative judge erred in finding that the agency could not
consider the letter of reprimand in determining the penalty to be imposed. Because I would find that the
demotion penalty is reasonable, even in the absence of the letter of reprimand, I find it unnecessary to
address this argument.
The deciding official testified that this charge was more important than the charge of abusing a clerical
employee or the letter of reprimand in deciding to impose the demotion penalty. See HT at 80-81, 87.
That the appellants actions interfered with an agency investigation and constituted an abuse of her
supervisory position are considered in connection with the seriousness of the insubordination charge
and its relation to the appellants duties, position, and responsibilities, see Douglas, 5 M.S.P.R. at 305,
and not as independent offenses. See Atchley v. Department of the Army, 46 M.S.P.R. 297, 302 (1990)
(the Board is required to review the employing agencys decision solely on the grounds invoked by the
agency; it may not substitute what it considers to be a more adequate or proper basis).
The deciding official testified that penalties more severe than a demotion were considered. HT at 87.
End of Document