Menacing ‘Don’t Mess With Me’ Leads to Firing

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By on April 16, 2018 in Court Cases with 0 Comments

Word 'fired' written on a sheet of paper with a pen sitting next to it on a desk

The appeals court recently sustained the Army’s removal of an employee stemming from “menacing” comments she made in meetings with supervisors. (Jolly v Department of the Army (CAFC No. 2017-1919, nonprecedential, 9/11/17))

These facts are taken from the court’s opinion:

Ms. Jolly served as Health Systems Administrator at Fort Gordon when she started having issues with her bosses concerning her schedule. Jolly believed she had no set schedule and was free to change her start and end time pretty much on a daily basis. On the other hand, the Chief of Medical Expense Reporting System at the medical center maintained that Jolly had a set schedule and met with her to explain that she could no longer come and go when she pleased. When the two met to discuss the matter, Jolly expressed her belief that she was being singled out, and, among other things, asked her boss (Kelly) “if she had heard about the …Camp Lejeune and Fort Hood shootings.” She went on to say that Kelly and her next level boss, Col Barrow, “needed to be careful, to leave her alone and not to mess with her.” (Opinion p. 2)

Ms. Kelly was concerned, having taken Jolly’s statements as threatening. She alerted other bosses as well as the police.

Army proposed Jolly’s removal for conduct unbecoming and for “inflammatory and/or menacing comments which reasonably placed fellow employees in fear,…” adding that the comments “implied violence towards” others. (p. 3)

Jolly maintained in her response that her comments were not threats. Nevertheless, Col Barrow, the deciding official, ordered that Jolly be removed.

On appeal to the Merit Systems Protection Board (MSPB), Jolly argued her comments were misconstrued, her due process rights were violated, and Col Barrow should not have been the deciding official since he was a target of her remarks. The administrative judge found that Jolly’s comments were “inflammatory and/or menacing and …they reasonably placed fellow employees in fear.” (p. 4) The Board upheld Jolly’s removal.

She took her case to the appeals court, but had no success. The court analyzed the MSPB’s reasoning and sustained its decision finding that Army had met its burden of proof. With regard to Jolly’s argument that Col Barrow should have been disqualified as deciding official, the court was clear: “We do not view these facts as establishing a violation of due process…. Nothing …. limits the deciding official to being a neutral arbiter or requires that the deciding official be unfamiliar with the individual, the facts of the case, or the employee’s prior conduct….” (p. 7)

In short, Ms. Jolly lost her job as the direct result of her menacing remarks.

Jolly v. Army (2017-1919)

© 2018 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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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.

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