Watching TV, Going to Class, Lifting Weights: All Part of the Workday

A federal court found a problem with an agency’s deciding official talking with other managers about their views of an employee who had received a removal notice. And, while the employee being fired apparently liked to watch “Oprah” on her computer, the court suggested the MSPB review the record showing that other federal employees also watched television in the office during the workday.

This Federal Circuit decision may be nonprecedential; nevertheless it overturns the firing of an Agriculture employee and remands the case to the Merit Systems Protection Board with pretty clear directions to make it right. (Kelly v. Department of Agriculture, C.A.F.C. No. 2007-3012 (nonprecedential), 3/12/07) The facts are as reported by the court.

Patricia Kelly, a Resource Management Specialist with the Minneapolis office of the Food Safety and Inspection Service, had been with the agency 7 years. She was removed following an investigation into her attendance during her mid-day break at a spinning class. Kelly was on a 5-4-9 biweekly schedule as well as on an authorized “midday band” time off schedule. The latter schedule permitted her to take time off in the middle of the workday as long as the time was made up later in the day. (Opinion p. 2)

Kelly’s fellow employees apparently believed that Kelly’s midday absences—as well as those of District Manager Nathaniel Clark who was enrolled in the same spinning class—were interfering with office operations. The agency investigated both employees. Eventually it was recommended that Kelly be removed based on a charge of improper conduct, which was supported by 11 specifications. The deciding official (Ms. Bain) sustained 9 of the 11 specifications and decided to remove Kelly. (p. 2)

Kelly appealed her removal to the Merit Systems Protection Board. The administrative judge ended up sustaining only two of the specifications, but found that these two were enough to sustain the removal. The first involved Kelly’s sworn statements during the agency investigation in which she maintained that she returned each time from her spinning classes by 1:30 pm and that she “always” made up the time. The AJ found that the agency provided enough evidence to prove that these statements were false. The second sustained specification involved Kelly’s improper use of her government computer for watching “Oprah” and sharing jokes. The agency was able to prove this specification to the AJ’s satisfaction. The Board affirmed Kelly’s removal. (pp. 2-3)

However, it came out at the Board hearing that before issuing her final decision, the agency deciding official engaged in ex parte communications with two other managers. The way it came about was that Kelly’s fellow “spinner” wrote an apparently unsolicited email to Ms. Bain opposing Kelly’s removal, providing a character reference for her, and suggesting that Bain contact two other managers for their input on Kelly. Ms. Bain did as suggested, but the two managers provided negative comments on Ms. Kelly. Bain did not inform Kelly of these comments until the final decision letter. (p. 4)

The Board found that these ex parte communications were harmless, pointing out that Ms. Bain had testified that she did not rely on these communications in making her decision. (p. 5)

Kelly took her case to the Federal Circuit. The court took a very dim view of the ex parte communications: “…ex parte communications rising to the level of a procedural due process violation cannot be excused as harmless error….[citations omitted] An adversary’s ex parte communications to a deciding official render that official’s claims of a lack of influence unavailing.” (p. 5)

The court instructs that once she engaged in the ex parte communications, Ms. Bain “had a duty to notify Ms. Kelly and provide her an opportunity to respond before reaching a decision.” (p. 6)

The court then goes on to instruct the Board to view the remand as an “opportunity” to take a closer look at the two supported specifications. As to the one involving misuse of the government computer, the court refers to “the considerable dispute in the record about computer policy in the Minneapolis district office, including many admissions of personal uses of government computers…” (p. 7)

The court also had this to say about the specification involving Kelly’s misuse of the government computer:

“The Board may also review the record showing that others watched television in the office. The Board will also have an opportunity to reexamine the time card data showing that on seven of the twelve dates in question the alleged time claimed and not worked was less than ten minutes, including an allegation of three minutes. Altogether ten of the twelve dates allege shortfalls of sixteen minutes or less. On remand, the Board may consider whether this record fully supports a finding of intentional falsity in Ms. Kelly’s statement that ‘I always make up time.’”( p. 7)

It seems pretty clear that the court pretty much disagrees with the Board’s findings of fact in this case as well as its handling of the ex parte communication issue. The decision is a big win for Kelly and a loss for the agency and the Board.  Further, it exposes some troublesome internal problems within the agency’s Minneapolis office.

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.