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
