“I didn’t get my law degree out of a cracker jack box.”

Disrespectful conduct or retaliation for a whistleblower complaint? The VA suspended an employee for one day for an incident in November 2005. The case eventually went to court and the suspension stands.

A Veterans Affairs employee, suspended for one day for making false statements about a co-worker, was unable to persuade the Merit Systems Protection Board, and now the Federal Circuit, that she was entitled to whistleblower’s protections. (King v. Department of Veterans Affairs, C.A.F.C. No. 2007-3225 (nonprecedential), 9/14/07)

King is a GS-9 medical technologist at the VA in Tuskegee, Alabama. She admitted that she made the following statement to a supervisor when off-duty but still on the VA campus: “You know, I didn’t get my law degree out of a cracker jack box. You’re going to wish you hadn’t started this.” (Opinion p. 2)

The agency suspended King for disrespectful conduct. King argued that she was engaging in protected whistleblowing. The Office of Special Counsel declined to pursue the case. King then filed an Individual Right of Action with the Board. A hearing was held but the Board denied her appeal. (p. 2)

Agreeing with the Board that the evidence of King’s disrespectful conduct was “strong” and “undisputed,” the court affirmed the suspension. While the incident occurred while King was off duty, the court concluded that there was substantial evidence of nexus, “including the fact that the incident happened at her employer’s facility and involved a supervisor.” (p. 3)

As for King’s argument that her statement was protected speech, the court disagreed, finding that speech may be restricted where it could disrupt the office, undermine supervisory authority, and “destroy close working relationships,” as was the case here. (p. 3)

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.