The Merit Systems Protection Board recently upheld a

Department of Treasury firing of a employee after the

specialist e-mailed a female co-worker despite his branch

chief’s explicit order that he not contact her. After the

agency removed the specialist, he appealed and an

administrative law judge found him guilty of the charged

conduct, but altered the punishment from removal to a

90-day suspension. Treasury appealed.

MSPB reversed the administrative judge’s mitigation and

sustained the removal. The board stated that an agency’s

penalty selection will not be disturbed unless the agency

fails to weigh relevant evidence or exceeds the limit of

reasonableness. Here, the board found the agency’s decision

reasonable noting that the employee’s conduct was an

intentional violation of his branch chief’s order, and

noting that the worker had engaged in the prohibited conduct

in the past which was often derogatory and sexually offensive.

The Board further found that the appellant apparently did

not recognize the serious of his conduct and held that “an

agency need not wait to discipline an employee until his

sexually offensive conduct becomes so pervasive and offensive

that it constitutes unlawful discrimination under a hostile

work environment theory” in reinstating the removal as

reasonable. Get Full Text