Williams v. Dep't of Health & Human Servs.
| Decision Date | 24 February 2023 |
| Docket Number | DC-0752-16-0558-I-1 |
| Parties | SHEILA JOSHALYN WILLIAMS, Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Agency. |
| Court | Merit Systems Protection Board |
THIS FINAL ORDER IS NONPRECEDENTIAL[1]
Jason I. Weisbrot, Esquire, and Justin Womack, Baltimore, Maryland for the appellant.
Alexis S. Conway, Baton Rouge, Louisiana, for the agency.
Katherine A. Goetzl and Reynolds Wilson, Esquire, Washington D.C., for the agency.
¶1 The agency has filed a petition for review and the appellant has filed a cross petition for review of the initial decision, which sustained both specifications of the charge of unprofessional conduct, found that the appellant did not prove any of her affirmative defenses, and reversed the agency's removal action because the agency did not prove a nexus between the misconduct and the efficiency of the service. For the following reasons, we GRANT the petition for review and the cross petition for review. We AFFIRM the administrative judge's decision to sustain both specifications of the unprofessional conduct charge and her finding that the appellant did not prove any of her affirmative defenses. We REVERSE the administrative judge's finding that the agency did not prove nexus. We MITIGATE the removal penalty to a 14-day suspension.
¶2 The agency removed the appellant, an Investigations Analyst, based on a charge of unprofessional conduct stemming from her behavior during an August 19, 2015 incident in the Equal Employment Opportunity Compliance and Operations (EEOCO) Division. Initial Appeal File (IAF), Tab 6 at 39-47, Tab 7 at 53-58. She appealed to the Board and, after a hearing, the administrative judge issued an initial decision reversing the removal. IAF, Tab 34, Initial Decision (ID) at 1, 19. The administrative judge found that the agency proved both specifications of its charge. ID at 7-10. She also concluded that the appellant did not prove her affirmative defenses of disability discrimination and reprisal for equal employment opportunity (EEO) activity. ID at 14-19. However, the administrative judge reversed the removal action because the agency did not prove a nexus between the removal and the efficiency of the service. ID at 10-13.
¶3 The agency has filed a petition for review, the appellant has filed a response, and the agency has filed a reply brief. Petition for Review (PFR) File, Tabs 4, 9, 14. The appellant's response not only opposes the agency's petition for review but also challenges the administrative judge's analysis of the charge and her exclusion of purported comparator evidence. PFR File, Tab 9 at 19 & n.5, 25 & n.8. Therefore, we have construed it also as a cross petition for review. PFR File, Tab 11. The agency has filed a response to the appellant's cross petition for review. PFR File, Tab 15.
¶4 An agency must establish the following three things to withstand a challenge to an adverse action against an employee pursuant to 5 U.S.C. chapter 75: (1) it must prove by a preponderance of the evidence[2] that the charged conduct occurred; (2) it must establish a nexus between that conduct and the efficiency of the service; and (3) it must demonstrate that the penalty imposed is reasonable. 5 U.S.C §§ 7513(a), 7701(c)(1)(B); Malloy v. U.S. Postal Service, 578 F.3d 1351, 1356 (Fed. Cir. 2009); Pope v. U.S. Postal Service, 114 F.3d 1144, 1147 (Fed. Cir. 1997). For the following reasons, we find that the agency has satisfied its burden regarding the charge and nexus but not the penalty.
The agency proved both specifications of the unprofessional conduct charge.
¶5 In the proposal notice, the agency alleged that the appellant had a meeting with her first-line supervisor and another employee on August 19, 2015, and she was advised during this meeting that the agency had denied her reasonable accommodation request based upon the determination of a Federal Occupational Health Service (FOH) expert. IAF, Tab 7 at 53. The agency further alleged that the appellant had asked for a copy of the FOH determination, and her first-line supervisor told her that she would ask the Reasonable Accommodations Coordinator for the requested information. Id. at 53-54. In pertinent part, the agency alleged that the appellant left her office, went to the EEOCO Division, and engaged in unprofessional conduct by (1) screaming in the hallway of the EEOCO Division, which caused a "significant disruption at the workplace," and (2) "angrily flail[ing] [her] arms around and hit[ting] [the Reasonable Accommodations Coordinator] on her arm." Id. at 54-55. The agency further alleged that employees in the EEOCO Division called security as a result of the appellant's "violent meltdown," which included her crying, yelling, flailing, and balling her hands into fists. Id. The administrative judge made credibility determinations and found that the agency proved that the misconduct occurred and that the misconduct constituted unprofessional conduct. ID at 7-10.
¶6 In her cross petition for review, the appellant contends that the administrative judge improperly sustained the charge, but we are not persuaded by this argument. PFR File, Tab 9 at 19 n.5.[3] For instance, we have considered the appellant's assertion that the Board should find that her conduct was not unprofessional because it occurred in the EEOCO Division. Id. (discussing Daigle v. Department of Veterans Affairs, 84 M.S.P.R. 625 (1999)). In Daigle, 84 M.S.P.R. 625, ¶¶ 2, 6, the Board found that a disrespectful conduct charge could not be sustained because, among other things, the appellant's use of abusive language about a manager occurred during an EEO counseling session. The Board explained that, because EEO counseling sessions are a semi-confidential means through which employees complain about other agency personnel and complainants are likely to be emotionally distraught when reporting perceived discrimination to the EEO counselor, it is reasonable to afford employees more leeway regarding their conduct in such a context than they might otherwise be afforded in other employment situations. Id., ¶ 6. This case is distinguishable from Daigle in three important respects. First, by the appellant's own admission, she went to the EEOCO Division with the intention of obtaining a copy of the FOH determination, Hearing Transcript (HT) at 402-04 (), not to discuss specifically any of her EEO claims. Second, the appellant's conduct in this matter occurred in the hallway of the EEOCO Division, not in an office or other confidential or semi-confidential setting. Third, the appellant made unwanted physical contact with the Reasonable Accommodations Coordinator during her outburst in the EEOCO Division, which is not the type of conduct that might be expected even in a confidential EEO counseling session. Cf. Daigle, 84 M.S.P.R. 625, ¶ 6 (). Thus, we find that the appellant's conduct was unprofessional even though it occurred in the EEOCO Division. However, as we discuss in more detail below, infra ¶ 22, the context in which the appellant's misconduct occurred plays a significant role in assessing the reasonableness of the penalty under the particular circumstances of this case.
¶7 The appellant also asserts that her conduct did not "rise to the level of unprofessionalism" because she was "merely venting her frustrations about an EEO matter, her reasonable accommodation, and disability." PFR File, Tab 9 at 19 n.5. She asserts that she did not make a threat like the employee in Berkner v. Department of Commerce, 116 M.S.P.R. 277 (2011), who was removed for making inappropriate statements during a meeting with a union steward concerning her discrimination complaint. PFR File, Tab 9 at 19 n.5. We find her arguments unavailing. The administrative judge noted that it was undisputed that the appellant's outburst lasted at least 10 minutes, involved loud crying and lamentation, pouting, stomping, and waving her arms. ID at 9. The administrative judge made several credibility determinations, found that the appellant screamed, and noted that she admitted gesturing with her arms and that she was "hysterical," which resulted in incidental contact with another employee's arm. ID at 9-10. She also found that the appellant's actions constituted unprofessional conduct. Id. The Board must give deference to an administrative judge's credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing; the Board may overturn such determinations only when it has "sufficiently sound" reasons for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). The appellant has not presented such sufficiently sound reasons. Further, we find nothing in Berkner, which upheld that employee's removal for inappropriate conduct, that precludes a finding of unprofessional conduct on the facts of this case. Accordingly, we affirm the administrative judge's decision to sustain both specifications of the unprofessional conduct charge.
The agency proved a nexus between the removal and the efficiency of the service.
¶8 Under 5 U.S.C. § 7513(a), an agency may remove an employee "only for such cause as will promote the efficiency of the service." The nexus requirement, for purposes of whether an agency has shown that its action promotes the efficiency of the service, means there must be a clear and direct relationship between the...
To continue reading
Request your trial