Nude Photos, Fake Feces, Party Rumors: A Few of MSPB’s Holiday No-Nos
By Deborah Hopkins, December 4, 2023
As December rolls along, many of you will be attending or participating in holiday parties or gift exchanges. To kick off the holiday theme of this month’s newsletter, I wanted to share three lessons about employee (mis)conduct related to the holidays.
Inappropriate use of a photo taken at a Christmas party was “abusive and offensive.”
The appellant, an M-5 supervisor at the Tennessee Valley Authority, was suspended on multiple charges. One charge included showing a female subordinate employee an inappropriate photograph. The photograph was taken of the subordinate, without her knowledge, during a Christmas party. That was only part of the problem. The appellant then took the subordinate’s head from the photo and attached it to a centerfold picture of the body of a naked woman, and showed the photo to the appellant, who testified that she was humiliated and embarrassed by the incident. MSPB held that this incident, along with others discussed in the case, amounted to “a course of abusive and offensive behavior which, if directed in large part to female employees, is discriminatory.” Hayes v. TVA, 4 MSPR 411, 414 (Dec. 16, 1980).
A Christmas gag gift can amount to disrespectful conduct.
The appellant, a WG-9 painter at the Department of Veterans Affairs, brought a red Huggies box to work and placed it on his supervisor’s workstation. The box contained what appeared to be a soiled diaper. The agency drafted the following charge:
On January 5, 2012, three individuals saw you put a red Huggies diaper box on the desk of Supervisor Mark Treadway. The box contained a baby diaper that looked like it had feces in it. According to the witnesses, you made the following statements, “Do you think this would make Mark mad” and “I hope it does.”
The “feces” was actually a candy bar that had been made to look like feces. The appellant testified it was a Christmas gag gift he had received from his mother and his sister, although witnesses did not corroborate that statement.
The supervisor was troubled with what he found at his workstation. He thought the feces was real. He called the agency’s Infectious Disease team to dispose of the box. The Administrative Judge found the appellant’s behavior amounted to disrespectful conduct. Franklin v. VA, AT-0752-12-0454-I-1 (Jul. 23, 2012)(ID).
The Whistleblower Protection Act does not protect disclosures based on rumors of events at holiday parties.
In this case, the appellant, a GS-12 correctional program specialist/special investigative agent at the Federal Bureau of Prisons, asserted he heard a rumor from other employees that there had been a fight during the institution’s holiday party, which he had not attended. He reported the rumor, which included an allegation that the associate warden had been involved in the altercation, to the agency’s executive staff. When he was disciplined for conducting an unauthorized investigation, misuse of position, and lack of candor, he claimed whistleblower reprisal, but the MSPB found the disclosure was not protected because “when the appellant made the disclosure, it was based on mere rumors, and he did not even know who allegedly had been involved.” Johnson v. DOJ, 2007 MSPB 42, P14 (Feb. 6, 2007).
Have a wonderful holiday season, FELTG readers, and let’s all remember to make good decisions out there. Hopkins@FELTG.com
