Locker Room Behavior — Pants Dropping, Sex Banter — Merits Demotion

November 29, 2011 8:13 PM
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The bar for excellence keeps getting higher for federal government supervisors. Perhaps that’s why, in 2011, 57 percent of federal employees surveyed by the Office of Personnel Management found that their organizations’ leaders maintained high levels of honesty and integrity, up from 50.3 percent in 2006. That also partly explains why the U.S.  Court of Appeals for the Federal Circuit recently ruled the U.S. Postal Service was justified in demoting a supervisor to a non-managerial position after he consistently made inappropriate comments and, at one point, dropped his pants at work.

The Federal Circuit affirmed a Merit Systems Protection Board (MSPB) decision holding that managers may be held to a higher degree of accountability than “lower-level supervisors.” Natty v. U.S. Postal Service, No. 2011-3138 (2011). The case involved an agency manager, Anthony Natty, who was a Postal Service employee with decades of federal service. He oversaw 130 employees, including six subordinate supervisors. Since 2009, Natty was found to have made race and sex-based comments. On one occasion, Natty intentionally dropped his pants while on duty.

In June 2010, the Postal Service demoted Natty to a non-managerial position. He appealed this adverse action to the MSPB. He argued that his sex-based comments were appropriate as the comments referred to his dating preferences. Natty further claimed the penalty of demotion was unreasonable because he was not put on notice about the inappropriateness of his comments. The agency provided testimony from a female agency employee who alleged these comments went beyond dating preferences. The administrative judge found her testimony credible. The administrative judge further found that the agency acted within its discretion with respect to the reasonableness of the proposed penalty.

What federal supervisors need to know:

  • Prove the charged conduct occurred;
  • Show a nexus between the conduct and the efficiency of the federal service; and
  • Establish the reasonableness of a penalty.For an adverse action to be justified, an agency needs to:
  • Supervisors who have received Equal Employment Opportunity (EEO) training are placed on notice that that similar conduct is inappropriate.
  • The seriousness of a supervisor’s conduct is aggravated when he or she is responsible implementing EEO laws.
  • A reasonable penalty is less severe for lower-level supervisors.

While the bar is now high for federal managers, unrealistic expectations or unreasonable standards may be applied. Leaders occasionally falter; a manager should immediately contact a federal employment lawyer who can defend his or her rights when any such action is proposed.

© 2021 Mathew B. Tully, Esq.. All rights reserved. This article may not be reproduced without express written consent from Mathew B. Tully, Esq..


About the Author

Mathew B. Tully is a founding partner of Tully Rinckey PLLC. He concentrates his practice on representing federal government employees and military personnel and can be reached at [email protected]. To schedule a meeting with one of the firm’s federal employment law attorneys call 202-787-1900. The information in this column is not intended as legal advice.