Talking Trash or Serious Threat?

This federal supervisor lost his job when he left threatening notes and left work without approval. His removal is upheld by the MSPB and a federal court, in part because another agency supervisor was concerned about his safety and security and took precautions to protect himself and his family as a result of the threats.

Threats of violence against co-workers are usually not viewed lightly in the federal service and can quickly lead to an employee’s removal. An agency that is particularly intolerant of this kind of misconduct is the Postal Service. A recent case decided by the Federal Circuit Court of Appeals underscores the agency’s zero tolerance policy for threats or threatening behavior on the part of its employees. (Barber v. United States Postal Service, C.A.F.C. No. 06-3091 (non precedent), 7/25/06) The facts are as reported in the court’s decision.

Barber was a Supervisor in Jacksonville, Florida for 9 years at which point the agency fired him for “improper conduct.” (Opinion p. 2) It seems he had a scrap with the law that led to his arrest by the local authorities. They came to his work site and arrested him.

Barber apparently believed his supervisor had tricked him into coming to the lobby where he was arrested. He left the supervisor a note saying “Bad F****** Move Bob. It’s not over!” The supervisor also received an unsigned note saying, “I will be waiting for you after work today. I have my guns with me today for you.” In addition to these threatening notes (the agency attributed the unsigned note to him), Barber left work without approval and notwithstanding the supervisor’s repeated instructions to stay. (Opinion p. 2)

In his response to a notice of proposed removal, Barber admitted he had left work but claimed he had not heard the supervisor’s instructions to stay. As for the threats, he admitted writing the first note on his leave request, but argued that it was not really threatening. He denied writing the other note that talked about waiting and having guns.

The agency deciding official was not persuaded by Barber’s arguments and found that his removal was appropriate. On appeal the Merit Systems Protection Board sustained the agency decision. Barber fared no better in the appeals court.

The court seemed particularly impressed by the testimony of an agency dispute resolution specialist who met separately with Barber and his supervisor simply to reschedule a mediation session involving a previous disciplinary action against Barber. This witness testified that Barber told him that he would settle the dispute with his supervisor “man to man…” and that his supervisor was “going to make me have to kick his ass.” Even though Barber denied making such statements, the AJ found this testimony credible, as did the court. (Opinion p. 4)

There was apparently no doubt in the Board’s or the court’s mind that Barber’s various statements and actions were indeed threatening and had been perceived as threats by the supervisor, who testified that he “feared for his safety and subsequently took cautionary steps, such as carefully searching parking lots…, installing a home security system, and altering his times and routes of travel.” (Id.)

The leading case for determining whether threatening behavior has taken place is Metz v. Department of Treasury, 780 F.2d 1001, 1004 (Fed. Cir. 1986). Metz puts forward these factors to be considered by the Board: “(1) The listener’s reactions; (2) The listener’s apprehension of harm; (3) The speaker’s intent; (4) Any conditional nature of the statements; and (5) The attendant circumstances.” (Cited in Opinion, p. 4) The Board, affirmed by the court, found the Metz tests were met in this case and that Barber’s behavior was threatening. (Id.)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.