Can a federal employee get in trouble by making statements to coworkers that they “better watch their backs,” ….”it ain’t no fun when the rabbit’s got the gun,”….that he was “getting gang members to come to Albany, GA to confront someone…just waiting for a name?” (Opinion p. 2)
As reported in a recent appeals court decision, a Financial Technician with the Marine Corps Logistics Command in Albany, Georgia found out that the answer to that question is “yes.” (Moore v. Department of the Navy, CAFC No. 2012-3009 (nonprecedential), 3/13/12)
After making these kinds of comments to coworkers, the Navy’s Criminal Investigation Division looked into the matter. The coworkers indicated they felt unsafe working with Moore. The result was a 10-day suspension without pay for “Conduct Unbecoming a Federal Employee and Insubordination.” (p. 2)
Before the suspension even took effect, Moore made some more “disruptive and threatening statements, accusing coworkers “of conspiring against him, of being cowards, and of interfering with his finances, and also threatening to interfere with their finances.” (p. 3) When Moore’s supervisor ordered him to stop making the comments, Moore not only did not comply, he “instead responded with laughter and disrespectful comments. …” (p. 3)
This time, Moore was placed on administrative leave while his more recent conduct was investigated. Citing Moore’s actions as “causing a hostile work environment…” the report found:
“11 out of 13 of Mr. Larry Moore’s co-workers believe they are working in a hostile environment. All of the co-workers interviewed said Mr. Moore has been a disruption in the workplace. Some of the comments Mr. Moore has allegedly made show a total disrespect for supervisors…The overwhelming majority of the Branch feels anxious and believes things will be the same or worse if Mr. Moore returns to his current position.” (p. 3)
The agency kicked up the discipline and this time removed Moore. He appealed to the Merit Systems Protection Board but it sustained the removal. So Moore took his case to the appeals court, offering several arguments as why the MSPB was wrong—there was no proof of a nexus between his conduct and the efficiency of the service (the court found there was sufficient proof of nexus); error on the part of the MSPB in admitting certain testimony (the court finds no error); harmful procedural error by the Navy (the court agrees with MSPB that the Navy followed all required procedures in removing Moore); failure of the MSPB to consider his argument that the Navy enforced an IRS tax levy on his salary (which the court found of no relevance); and so on. (pp. 7-11)
In short, the appeals court has now affirmed the actions of the Navy and the MSPB’s review and Moore remains off the payroll permanently.