Unwelcome Sexual Contact Leads to Removal

Inappropriate conduct of a romantic nature by a female VA employee toward a male employee led to her removal.

In Boyd v Department of Veterans Affairs (CAFC No. 2018-1459, 7/2/18, nonprecedential), the Department of Veterans Affairs (DVA) fired a female employee who could not keep her hands to herself when it came to a particular male contractor employee, even after being specifically ordered to have no contact with him. The facts are taken from the court’s opinion sustaining her removal.

Ms. Boyd was a Veterans Service Representative in Atlanta. An employee of the Disabled American Veterans (DAV) complained to agency management that Ms. Boyd had been making “sexual advances towards him…” even after he asked her to stop.(Opinion p. 2)

The agency quickly issued a “Stay Away Notification” (SAN) to Ms. Boyd. She was instructed “to have absolutely no contact or (written/verbal) communication” with the DAV Representative who had made the complaint….and that failure to obey “may result in disciplinary or adverse action….j” (pp. 2-3)

When Boyd persisted, she was moved to a different duty location while the agency investigated. The agency removed Mr. Boyd for two reasons: (1) “inappropriate conduct” and (2) failure to follow her supervisor’s instructions.” (p. 4)

The Merit Systems Protection Board (MSPB) sustained Boyd’s removal, and the appeals court has affirmed.

Ms. Boyd tried to persuade MSPB that the agency did not meet its burden to prove “inappropriate conduct” since what it really was charging her with was sexual harassment, thus requiring DVA to prove the elements of sexual harassment. Not so, ruled MSPB. She was NOT charged with sexual harassment and the charge of inappropriate conduct does not require that the agency show intent. The agency had made its case that Ms. Boyd’s actions amounted to inappropriate conduct. (p. 5). 

Likewise, there is no requirement to prove intent in order to sustain the failure to follow a supervisor’s instructions charge. The court agreed with the MSPB’s finding that the agency had proved that Ms. Boyd violated the terms of the SAN, that the SAN was a proper supervisory instruction, and that there was sufficient evidence Ms. Boyd took actions prohibited by the SAN. This added up to failure to follow orders. Removal affirmed.

Boyd v VA (2018-1459)

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.