A 30-year plus Department of Agriculture (USDA) employee, fired by the agency stemming from his confrontations with coworkers and threatening statements toward a supervisor, failed to convince the appeals court that what was really at play here was merely jokes on his part and retaliation by the agency for his whistleblowing many years previously to OSHA. (Hawkes v. Department of Agriculture (CAFC No. 2016-1387 (nonprecedential) 8/10/16) Here is how the court outlined the facts and its decision.
When the troubles began Hawkes was a supervisory research chemist who had worked at USDA around thirty years. In the mid 90’s he apparently made a couple of “whistleblowing disclosures” to OSHA. (Opinion p. 2)
Many years later things got heated between Hawkes and his coworkers concerning a “laboratory malfunction,” and as a result the boss ordered Hawkes to take an anger management course, which he did not complete in a timely manner. A coworker construed remarks by Hawkes concerning the boss as threats, these were reported, and he ended up with a 30-day suspension for failure to follow instructions and for disruption in the workplace.
Some time later and while his suspension appeal was still pending, Hawkes was removed following his disruptive behavior at a senior level meeting. (p. 2) The suspension and removal ended up in a consolidated appeal before the Merit Systems Protection Board (MSPB). The Board found that the agency met its burden in both actions. It proved the charges of “causing a disruption in the workplace and failure to follow instructions,” thus supporting his suspension. Further, the agency proved the removal charge of “conduct unbecoming a federal employee.” (p. 2)
Hawkes took his case to the appeals court, arguing among other things that all of his statements and actions were “jokes” that were never intended to be threatening. Pointing out that his intent meant no matter since he was not charged with threats but rather for disrupting the workplace, the court did not buy this. (p. 3)
As for Hawkes argument that what was actually going on here was improper retaliation for the several year old protected whistleblowing he engaged in with OSHA, the court found that the Board applied the proper test in weighing this defense when it concluded that the agency had shown by “clear and convincing evidence” that the two personnel actions would have been taken against Hawke regardless of his whistleblowing. “The Board’s factual determinations are supported by substantial evidence, and we will not disturb them.” (p. 4)
In short, the court has now sustained the suspension and removal actions and the Board’s rulings against Hawkes in those appeals.
This case illustrates an important point when it comes to crafting charges against employees who exhibit threatening, angry and confrontational behavior. If the employees actions have caused disruption in the workplace and there is ample evidence of that, then a charge of “disruptive behavior “versus “making threats” is much easier to defend. As the court noted in this case, “intent is not an element” when it comes to a charge of “disrupting the workplace.” (p. 3)