Farrell v. Department of Interior

• Decision Date: 18 December 2002
• Docket Number: No. 02-3108.,02-3108.
• Parties: John FARRELL, Petitioner, v. DEPARTMENT OF THE INTERIOR, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

314 F.3d 584

John FARRELL, Petitioner, v. DEPARTMENT OF THE INTERIOR, Respondent.

No. 02-3108.

United States Court of Appeals, Federal Circuit.

December 18, 2002.

COPYRIGHT MATERIAL OMITTED

Joseph V. Kaplan, Passman & Kaplan, P.C., of Washington, DC, argued for petitioner.

Kevin W. McArdle, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent. With him on the brief were Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director; and Brian M. Simkin, Assistant Director.

Before MICHEL, GAJARSA and DYK, Circuit Judges.

DYK, Circuit Judge.

John Farrell appeals the December 6, 2001, final order of the Merit System Protection Board denying review of his demotion by the United States Park Police for conduct unbecoming an officer. Farrell v. Dep't of Interior, No. DC-0752-98-B-I, slip op., 90 M.S.P.R. 451 (M.S.P.B. Dec. 6, 2001) ("Final Order"). We conclude that although the Park Police departed from the Table of Penalties in demoting the appellant, such a departure was not unlawful, nor was the demotion unreasonable. We affirm.

BACKGROUND

On July 16, 1996, Captain Ronald DeAngelo of the Park Police found a photocopy of a purported parody entitled "The Quest, The Final Passage Home," in his inbox, written by someone who identified himself as "The Phantom." Besides containing sexually explicit passages and references to some characters as "Moorish," "The Quest" insinuated that several easily identifiable officers were lesbians and that an officer married to another member of the Park Police had had an adulterous liaison with a third member of the Park Police. Captain DeAngelo filed an administrative complaint on July 22, 1996. That complaint led to an investigation by the Internal Affairs Office of the Park Police.

On August 29, 1996, appellant Farrell, then a lieutenant with the Park Police, was interviewed by Internal Affairs. During that interview, Farrell admitted that he was "the sole author and creative force" behind "The Quest," which, he explained, was in part "strictly fictional" and in part based "on actual acts" of members of the Park Police, referred to in "The Quest" by "made up names [that] actually identified people and in some cases [by] made up names [that] were created to see if it would catch on." According to Farrell, "The Quest" was a parody of medieval tales whose purpose was "to bring ... issues to the Force's attention out of frustration ... that he could not address ... in any other way," though Farrell acknowledged that "if you are a sick individual and you wish to read it a certain way you can read it any way you wish." Farrell admitted that he wrote "The Quest" at home in installments, typed it into the computer at work, and surreptitiously distributed copies of it within the Park Police over a period of several months.

On November 12, 1997, almost sixteen months after Farrell admitted writing "The Quest," Deputy Chief Alvin D. Hinton, Commander, Operations Division, proposed that Farrell be demoted to the rank of sergeant "to promote the efficiency of the service," based on the following charge:

Charge No. 1 — Conduct unbecoming an Officer, i.e., Use of demeaning, defamatory, or degrading remarks comments, or statements involving subordinates, peers, and supervisory personnel.

The letter also listed the General Orders that Deputy Chief Hinton believed Farrell had violated:

General Order 31.01, IV(A): An officer shall refrain from conduct that impairs the efficiency of the Force or causes the loss of public confidence in the Force.

General Order 31.01(IV)(B): An officer shall maintain decorum, command of temper, and exercise patience and discretion at all times. Harsh, violent, profane, or insolent language shall not be used. The officer shall conduct himself/herself in a professional manner.

General Order 32.03(II)(25): All officers shall render respect to supervisors and associates [excerpt].

General Order 32.03(II)(2): An officer shall comply with all General Orders, Special Orders, memorandums, or directives that may be issued by the Chief or his/her designee.

Farrell was also charged with violating a general order that required "all officers" to "comply with all General Orders, Special Orders, memorandums, or directives that may be issued by the Chief or his/her designee," which included Memorandum No. 9, the pertinent sexual harassment policy. "The Quest," according to the charge letter, "was written in double entendre style that could be and, in fact, was construed by some as sexually explicit graphic, and even pornographic." The letter explained

Supervisors, especially Police officers, occupy positions of great trust and responsibility. The behavior described above evidences that you have seriously breached the employee-employer relationship in your dealings with your superiors, peers, and subordinates. Additionally, it has impacted on the confidence I have in your ability to function as a supervisor.

The demotion was from shift commander, a position in which the employee directly supervises others but is subject to very little supervision himself, to sergeant, a position which, though still supervisory, is subject to significantly more direct supervision. Farrell was also charged with "Misuse of government equipment," for which he was ultimately punished with a three-day suspension.¹

On July 1, 1998, after Farrell had replied to the charge letter, Acting Chief of the Park Police Carl R. Holmberg issued a decision letter which sustained the charge and the demotion, despite Farrell's "past performance and [his] length of employment as a United States Police Officer." "As a supervisor, you are expected to serve as an example for subordinate officers to emulate," the letter said. "Your behavior is shocking and reflects little respect on your part for others, particularly minorities and women" because of references to some characters as "Moorish," which Farrell had admitted meant that they were black, and sexually explicit remarks about female members of the Park Police. Chief Holmberg later testified that because "The Quest" "took a while to compose, to produce, and to distribute," Farrell's transgression "proved ... that he did not work well absent supervision" and thus had to be demoted. Chief Holmberg acknowledged in his decision letter that Farrell had been ill with cancer while he was writing "The Quest," but he declined to mitigate the penalty because Farrell had not adduced any evidence that his medical condition had "affected [his] ability to perform professionally" or impaired his "judgment." Chief Holmberg did not sustain the charge of sexual harassment, however. He also testified that he would have imposed the same penalty had Farrell not also misused government property.

The National Park Service uses a manual entitled "Discipline and Adverse Actions," which supplements directives from the Office of Personnel Management and the Department of the Interior. It includes as an appendix a "Disciplinary Action Guide," commonly known as the Table of Penalties, a copy of which is attached to this opinion. It sets out, in table form, offenses and the range of penalties suggested for the first, second, and subsequent offenses. At his deposition, Chief Holmberg acknowledged that he had "relied" on Offense 9(c) of the Table, but he later corrected himself and testified that he had "used" Offense 9(a) in the Table and the accompanying Note 4 when selecting Farrell's penalty because "that was the closest guide that I could come to in the table of penalties." Offense 9(a) reads:

9. Discrimination because of sex, color, religion, national origin, age, physical or mental handicap, political affiliation, marital status, or other non-merit factor. (a) Use of critical, demeaning, slanderous, inflammatory, defamatory, ignominious or degrading remarks, comments, gestures, observations, or statements.

The Table suggests that the penalty for a first such offense may range from a written reprimand to a five-day suspension; but Note 4 counsels that "[i]f the employee occupies a supervisory or managerial position, serious consideration should be given — even for the first offense — to removal of supervisory responsibilities or reassignment from the supervisory position (which may involve a demotion)." Despite his consultation of 9(a), Chief Holmberg later testified that he had not sustained a charge of "sexual harassment," only "conduct unbecoming an officer." Chief Holmberg also admitted that he had not applied paragraph 10 of the Table, which covers "Making false, malicious or highly irresponsible statements against supervisors, other employees, or subordinates;" has a maximum penalty of a five-day suspension; and makes no reference to Note 4.

Farrell appealed his demotion to the Board. The administrative judge affirmed after a trial at which Farrell did not testify. Farrell v. Dep't of Interior, No. 0752-98-0728-B-1 (MSPB Nov. 1, 2000) ("Initial Decision"). She found that the charge of conduct unbecoming an officer had been proved by a preponderance of the evidence. Id. at 8-9. Although the administrative judge found that "sexual harassment" had been neither charged nor proved, "proof of the violation was not necessary to sustain the charge of conduct unbecoming an officer." Id. at 10. Chief Holmberg's consultation of Guideline 9(a) was not error, the administrative judge held, because "an agency's table of penalties is only one factor to be considered in assessing the reasonableness of a penalty, and an agency may deviate from the guidelines where a more severe penalty is reasonable." Id. at 13 (citing Chatman v. Dep't of Army, 73 M.S.P.R. 582, 587 (1997)). The administrative judge also found that the penalty had the requisite nexus with the offense and was consistent with the factors enunciated in Douglas v. Veterans Administration, 5 MSPB 313, 5 M.S.P.R. 280, 306 (1981). Initial...