Is That a Knife or a "Utility Utensil?"
By Susan Smith
Thursday, January 28, 2010
A WG-2 housekeeping aid at the VA Medical Center in Memphis, Tennessee, remains fired after a recent decision by the appeals court. (Chapman v. Department of Veterans Affairs, C.A.F.C. No. 2009-3226 (nonprecedential), 1/4/2010)
Apparently having a really bad day, Chapman used profane language toward a customer. When his supervisor took him aside to discuss the situation, Chapman brandished a knife and then made profane and disrespectful comments about his boss in the presence of others. A couple of days later, Chapman did not show up for work with no notice or explanation. (Opinion p. 2)
The agency proposed to remove Chapman based on charges of possessing a weapon, use of profanity, disrespectful conduct and absence without leave.
As for the charge of having a weapon at work, Chapman argued to the agency deciding official that it was not a weapon but a "utility utensil" that he used at work for handling boxes. However at the hearing before the Merit Systems Protection Board, the knife was presented as evidence. It was a Smith & Wesson S.W.A.T. II knife with a 3-¼ inch blade, not your standard utility knife.
Chapman admitted to the agency deciding official that he used profane and disrespectful comments toward his boss, but denied he had leveled profanity at the customer. As for the AWOL charge, he argued that he had been told not to report for duty following the incident until told otherwise. (pp. 2-3)
The agency deciding official sustained the charges and ordered up Chapman's removal. He appealed to the MSPB, had his day in court, but lost.
The Administrative Judge sustained the agency's charges and concluded that removal was appropriate given the seriousness of the first three charges and Chapman's "outrageous conduct toward a supervisor" which the AJ labeled "particularly egregious under the circumstances." (p. 3) The AJ also sustained the AWOL charge based on the agency's testimony that Chapman was placed on administrative leave four days after the incident and Chapman's admission that he may have been "mistaken" about the timing of the administrative leave and that he couldn't recall any details as to why he did not show up for work on the day in question. (p. 4)
Chapman tried his luck and the appeals court, but has now lost that round. The court was particularly unimpressed with his argument about the knife being required for his work. Testimony before the MSPB indicated that his duties did not include opening and breaking down boxes, and if they had, the agency would have furnished the appropriate utility knife. Further, Chapman's knife exceeded the size permitted for this kind of work. (p. 5)
The court was also unsympathetic with Chapman's argument that removal was not appropriate for a first offense. The agency table of penalties includes reprimand up to removal for each of the offenses Chapman committed, and the agency did not abuse its discretion in setting the penalty at removal. (p. 5)
09-3226Chapman
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