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Hughey v. Department of Treasury, 59 M.S.P.R.

480 (1993)

59 M.S.P.R. 480 (Mem)


Merit Systems Protection Board.
Barbara J. HUGHEY, Appellant,
v.
DEPARTMENT OF the TREASURY, Agency.
DA0752920686-I-1. | Nov. 24, 1993.
Attorneys and Law Firms
Barbara J. Hughey, pro se.

We further ORDER the agency to inform the appellant in


writing of all actions taken to comply with the Boards Order
and of the date on which the agency believes it has fully
complied. If not notified, the appellant should ask the agency
about its efforts to comply.
Within 30 days of the agencys notification of compliance, the
appellant may file a petition for enforcement with the regional
office to resolve any disputed compliance issue or issues. The
petition should contain specific reasons why the appellant
believes that there is insufficient compliance, and should
include the dates and results of any communications with the
agency about compliance.

*481 Thomas Stanton, Dallas, TX, for agency.


Before ERDREICH, Chairman, PARKS, Vice Chairman,
AMADOR, Member.

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

Equal Employment Opportunity Commission


Office of Federal Operations
P.O. Box 19848
Washington, DC 20036

We ORDER the agency to cancel the appellants demotion and


substitute in its place a 30-day suspension without pay. See
Kerr v. National Endowment for the Arts, 726 F.2d 730You should submit your request to the EEOC no later than 30
(Fed.Cir.1984). The agency must accomplish this action calendar days after receipt of this order by your representative,
within 20 days of the date of this decision.
if you have one, or receipt by you personally, whichever
receipt occurs first. See 5 U.S.C. 7702(b)(1).
We also ORDER the agency to issue a check to the appellant
for the appropriate amount of back pay, interest on back pay,
and other benefits under the Office of Personnel
Managements regulations, no later than 60 calendar days after Discrimination and Other Claims: Judicial Action
the date of this decision. We ORDER the appellant to If you do not request review of this order on your
cooperate in good faith in the agencys efforts to compute the discrimination claims by the EEOC, you may file a civil action
amount of back pay, interest, and benefits due, and to provide against the agency on both your discrimination claims and
all necessary information the agency requests to help it your other claims in an appropriate United States district
comply. If there is a dispute about the amount of back pay, court. See 5 U.S.C. 7703(b)(2). You should file your civil
interest due, and/or other benefits, we ORDER the agency toaction with the district court no later than 30 calendar days
issue a check to the appellant for the undisputed amount no after receipt of this order by your representative, if you have
later than 60 calendar days after the date of this decision.
one, or receipt by you personally, whichever receipt occurs
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Hughey v. Department of Treasury, 59 M.S.P.R. 480 (1993)

first. See 5 U.S.C. 7703(b)(2). If the action involves a claim


BACKGROUND
of discrimination based on race, color, religion, sex, national
origin, or a handicapping condition, you may be entitled to The appellant was employed as a Supervisory Data
representation by a court-appointed lawyer and to waiver of Transcriber, GS-7, for the Internal Revenue Service. The
any requirement of prepayment of fees, costs, or other agency demoted her to the position of Tax Examining
Assistant, GS-5, based on two charges of misconduct: (1)
security. See 42 U.S.C. 2000e-5(f); 29 U.S.C. 794a.
Verbally abusing a clerical employee; and (2) willfully
disregarding the direction of her manager.
The first charge related to events on August 17, 1988. 1 The
Other Claims: Judicial Review
If you choose not to seek review of the Boards decision on appellant returned to work that day following a vacation,
your discrimination claims, you may request the United States during which time Anita Andrews, a work leader under the
Court of Appeals for the Federal Circuit to review the Boardsappellants supervision, performed the appellants duties.
final decision on other issues in your appeal if the court has During the appellants vacation, Tashia Garcia, a Time and
jurisdiction. See 5 U.S.C. 7703(b)(1). You must submit your Leave Clerk, called Andrews about a problem with an
employees leave, telling Andrews that an amendment needed
request to the court at the following address:
to be prepared. Andrews prepared the amendment and gave it
to the appellant for her review. The appellant telephoned
Garcia and told her that no amendment was necessary. During
the conversation with Garcia, the appellant became
increasingly loud and angry, asking Garcia rapid-fire questions
United States Court of Appeals
without giving her a chance to respond, telling Garcia she did
for the Federal Circuit
not know what she was doing, and saying that the timekeepers
717 Madison Place, N.W.
needed to get their shit together.
Washington, DC 20439
The court must receive your request for review no later than When the appellants supervisor, Anna Medlock, became
30 calendar days after receipt of this order by youraware of the August 17 incident, she requested written
representative, if you *483 have one, or receipt by you statements concerning the incident from Andrews and Garcia.
personally, whichever receipt occurs first. See 5 U.S.C. She then called the appellant into her office and asked for her
side of the story. The appellant denied directing profanity at
7703(b)(1).
Garcia or that she was angry during the conversation. Medlock
asked the appellant for a written statement, and told her not to
discuss the incident with Andrews. Despite Medlocks
instructions, the appellant approached Andrews, and told her
AMADOR, Member, issues a dissenting opinion.
that she knew Andrews was writing a statement about the
*484 incident, but she wanted to let Andrews know that she
For the Board:
did not have to put anything in writing, and suggested that it
would be better if Andrews did not get involved.
Although not noted by the administrative judge, Andrews also
testified that the appellant walked up to her desk later the same
day with some vacancy announcements for management
WASHINGTON, DC.
positions, which the appellant knew Andrews was interested
in, and said she hoped that Andrews would not get involved in
something that could affect her career. Hearing Transcript
(HT) at 28. Ms. Andrews further testified that the appellant
told her that if she wrote good things about the appellant in her
statement, the appellant would write good things on Andrewss
DISSENTING OPINION OF MEMBER AMADOR.
evaluation when she applied for a management position. Id. at
29. The appellant did not rebut these statements in her
For the reasons discussed below, I would have found that thetestimony.
administrative judge erred in mitigating the demotion penalty
imposed by the agency.
After finding that the agency proved both its charges against
the appellant by a preponderance of the evidence, and that the
appellant had failed to prove her affirmative defenses, the
administrative judge considered the reasonableness of the
ROBERT E. TAYLOR,

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Hughey v. Department of Treasury, 59 M.S.P.R. 480 (1993)

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
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Hughey v. Department of Treasury, 59 M.S.P.R. 480 (1993)

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.

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Hughey v. Department of Treasury, 59 M.S.P.R. 480 (1993)

End of Document

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