A federal appeals court has temporarily upended the Department of Justice’s efforts to fire an FBI agent for secretly taping his sexual encounters with three women, including two co-workers. (Doe v. Department of Justice, C.A.F.C. No. 2008-3139, 5/11/2009) The facts are from the majority’s decision.
“John Doe,” was a Special Agent pilot working “near an FBI Field Office in Ohio.” (Opinion p. 2) He apparently had a thing about secretly taping his encounters with various women, two of whom were co-workers. In the case of “Female #1” (a member of the FBI’s support staff whom he was dating), the taping was by mutual consent. However, when Doe had separate later encounters at his home with another female FBI employee (“Female #2”) and then with a non-employee (“Female #3”), he secretly taped them. (p. 2)
In a move worthy of a TV soap opera, Female #1 went to Doe’s home when he was away, found the tapes (conveniently labeled by name), and confronted Doe. The two of them went to a counselor to work out problems in their relationship. Female #1 ended up talking about the tapes to counselors in the agency’s Employee Assistance Program. Now, even though use of this program is supposed to be confidential, rumors quickly spread about Doe and his female co-workers, upsetting the women and causing disruption at work. (p. 3)
It did not take too long for the FBI’s Office of Professional Responsibility to get wind of the story and to open an investigation. Doe admitted to them that he had videotaped the three women at times without their knowledge or consent. The OPR concluded that this off-duty behavior was unprofessional and “contrary to the FBI’s suitability requirements….” and “may have constituted a violation of criminal law.” (p. 3)
The deciding officials also believed that Doe’s conduct might have violated Ohio criminal law on voyeurism. They removed him. (p. 4)
Doe’s appeal wended its way through the Merit Systems Protection Board. Following a hearing, the Administrative Judge reversed the removal, concluding that Doe had not committed a crime, and that there was no nexus between Doe’s off-duty conduct and the efficiency of the service or Doe’s ability to do his job.
The AJ found that Doe was not to blame for rumors that circulated or the resulting workforce disruption, pointing out that Doe had not been the one to disclose the videotaping. The AJ ordered up reinstatement with back pay, etc. The agency complied, placed Doe in Omaha, Nebraska, but appealed to the full MSPB. (p. 4)
Not so fast, said the Board. While agreeing that there was no apparent criminal violation, the full Board nevertheless held that the agency had established nexus, finding that Doe’s conduct had adversely affected the workplace and caused his management to lose trust in him. The case was sent back to the AJ for more work. (p. 4)
The AJ stuck to his guns. He concluded Doe’s conduct was not criminal and found that while Doe’s conduct had disrupted the workplace, this was “mitigated” by the disruptions caused by others. (p. 4) As for the small matter of Doe’s bosses losing confidence in him, the AJ explained that away with his finding that this was in large part due to their belief that Doe had violated a criminal law, when in fact he had not. Finding that removal was unreasonable, the AJ mitigated Doe’s penalty to a 120-day suspension (which amounted to time served) with a directed reassignment (which covered moving him to Omaha). (pp. 4-5)
The agency went right back to the full Board, which again sided with the agency, holding that actions of others had not taken away Doe’s wrongdoing for his “clearly dishonest” actions. The Board reinstated the removal penalty. (p. 5)
The already mangled case then went to the Federal Circuit. In a 2-to-1 decision the majority reversed and remanded for more work by the Board on the question of nexus.
The court majority is clearly is troubled by the fact that the FBI investigated and acted based on Doe’s personal off-duty conduct: “Without a predetermined standard…to clarify when the agency may and may not investigate the personal relationships of its employees, it is conceivable that employees could be removed for any number of ‘clearly dishonest’ misrepresentations, from those made to preserve the sanctity of a romantic relationship to cheating in a Friday night poker game..” (p. 9)
The court declined to recognize a “presumed or per se nexus” between Doe’s conduct and the efficiency of the service.” (p. 10) The court has bounced the case back to MSPB to “articulate a meaningful standard as to when private misconduct that is not criminal rises to the level of misconduct that adversely affects the efficiency of the service, and apply that standard to the facts of this case.” (p. 10)
The court also directed the Board to take another look at the penalty. Pointing out that Doe’s supervisors decided on removal in the belief that he had violated Ohio criminal law which turned out not to be the case, the court wants the Board to reconsider whether the agency met its burden in justifying the penalty of removal. (p. 13)
The upshot is that Doe gets yet another shot with the MSPB in his quest to overturn his firing. Interestingly, the dissent in the court case concluded that the Board erred in finding nexus, and that should be the end of the case—Doe should be reinstated. (Dissent, p. 1)
