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Zero Tolerance Policy Upheld

Absolute performance standards can be permissible in a federal agency. In this case, the “zero tolerance” policy against threats in the workplace was upheld by a federal court and a federal employee is out of a job after 20 years of working for the federal government.

Agencies tend to come down fast and hard on any employee who makes threats against co-workers, as a recent appeals court decision illustrates. (Bagbee v. United States Postal Service, C.A.F.C. No. 2006-3405 (nonprecedential), 2/6/07) The facts are taken from the court’s opinion.

Bagbee was a 20-year employee with the Postal Service, working as a Laborer in San Francisco. During a meeting with his first and second level supervisors, Bagbee made threats against the supervisors’ family members. According to their testimony, Bagbee “threatened to rape and kill Mr. Daniels’s [the second-level supervisor] wife, daughter and son, and also to go to Ms. Ramos’s [Bagbee’s first-level supervisor] house while her husband was working and rape and kill Ms. Ramos’s children and then slash Ms. Ramos’s throat.” (Opinion, pp. 2-2)

Citing its zero tolerance policy for workplace threats, the USPS removed Bagbee. He took his appeal to the Merit Systems Protection Board. Following a hearing, the Administrative Judge found that the agency had borne its factual burden; that Bagbee had violated the zero tolerance policy; that the agency’s case met the standard of proof for adverse actions based on threats, citing Metz v. Dep’t of Treasury, 780 F.2d 1001 (Fed. Cir. 1986); that Bagbee’s removal promoted the efficiency of the service; and that the removal penalty was appropriate. (p. 2)

The full Board declined to review the initial decision, and Bagbee took his case to the appeals court. The court affirmed the Board and upheld Bagbee’s removal. The court had this to say on the agency’s zero tolerance policy: “We have also held that absolute performance standards, such as the USPS’s zero tolerance policy, are permissible….” (p. 3; citations omitted)

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.