Supporting the Deciding Official – Even if You Disagree With the Penalty

By Deborah J. Hopkins, May 22, 2023

A recently issued non-precedential MSPB case caught my attention: an appeal involving a proposed removal that the Deciding Official (DO) mitigated to a demotion. In most cases, if a DO mitigates a proposed removal, it’s because the DO doesn’t sustain some of the charges or thinks a removal penalty is too severe in light of the misconduct and the aggravating factors. In this case, though, I think most FELTG readers would agree the misconduct the DO sustained is egregious – and yet the DO still decided removal was not appropriate. Ditch v. FDIC, DE-0752-15-0022-I-1 (Feb, 28, 2023)(NP).

The DO sustained ten specifications of conduct unbecoming a supervisor against the appellant, a GS-13 Supervisory Examiner:

1. The appellant had sex with a subordinate female employee, off duty, on two occasions.
2. The appellant, the subordinate female employee, and another employee whom the appellant supervised went to a bar and drank during duty hours.
3. While at the bar, the appellant insisted that the subordinate female employee drink a shot of whiskey, saying, “drink it, come on, don’t be a p*ssy.”
4. The appellant and the subordinate female employee kissed while at the bar.
5. The appellant certified the subordinate female employee’s timesheet for that day as working her regular 8-hour shift, instead of accounting for the time she spent with him at the bar.
6. Despite the subordinate female employee advising the appellant she was only interested in a professional relationship, on two occasions while they both were on duty, the appellant expressed his continued romantic feelings to her.
7. The next day, the appellant sent the subordinate female employee a text message also saying that he had feelings for her.
8. The appellant stated he was going to find a way to reassign the subordinate female employee.
9. Two weeks later, the appellant instructed the subordinate female employee to meet with him during duty hours, at which time he asked her if they had a chance for a personal relationship and if she had feelings for him.
10. The appellant, during duty hours, told another subordinate employee of his romantic feelings for the subordinate female employee and that he had slept with her.

According to the case, the DO considered the Douglas factors and found “the appellant’s misconduct very serious as it caused ‘significant disruption to the efficiency of the Denver’ office, particularly because as a supervisor the appellant was entrusted with significant responsibilities, including acting as a role model, demonstrating good judgment, developing members of his team, fostering a positive workplace culture, and promoting teamwork.” Id. at 10.

But the DO also found significant mitigating factors, including that the appellant had “no past disciplinary record, he had 25 years of service, he got along with fellow workers, he was dependable, and, due to his 25 years of satisfactory performance as a Bank Examiner, she believed that he had the ability to perform in that position.” Id.

If you’re like me, you might look at these facts and think the DO got it wrong, and that her view of holding a supervisor to a higher standard is different than yours. But if you, like me, are an advisor to supervisors in agency actions, then you also know that, according to 5 CFR § 752 (and most likely, your agency’s policy), it’s the supervisors and managers who make these decisions. Your role is limited to providing advice on legality and options, leaving the decision up to the DO. The Board found the penalty to be within the bounds of reasonableness and upheld the demotion.

I won’t get on a soapbox here, but I would be remiss if I didn’t mention the potential liability for a finding of a hostile work environment in this case if the suspension did not promptly correct this offensive behavior, but that’s a different article for a different day.

For more on this topic, join me on Aug. 1 for Charges and Penalties Under the New MSPB, which is part of our brand-new five-day Federal Workplace 2023: Accountability, Challenges, and Trends event. Hopkins@FELTG.com