Spanking Women and “Who’s your daddy?”
When a federal employee is recorded making comments to female employees about spanking them and asking “Who’s your daddy?” and “It’s your daddy”, the employee should reasonably anticipate statements like this may create a problem in his federal employment. It created a problem for this employee of the Department of Homeland Security.
When the problem does arise, and the agency moves to fire the employee, a recording of the comments having been made would be a problem in defending the case. And, in this case, as the agency was recording the meeting when the statements were made, the former Customs officer may have assumed denying the comments would be futile. Instead, he said he did not remember making them and blamed his lack of memory on a drug he was taking at the time.
Joseph Martin, a former chapter president of the National Treasury Employees Union (NTEU) Chapter 116 in Arizona and a former customs officer for the Department of Homeland Security (DHS or “agency”) was fired for conduct unbecoming a Customs and Border Protection Officer, lack of candor and failing to follow a non-disclosure warning.
Despite the initial allegations, his comments to the women about spanking them and “Who’s your daddy” or “It’s your daddy” were not found by the Administrative Judge to be an attempt to solicit sex in return for him providing them with union representation.
Removal Penalty Upheld
According to a new decision from the Court of Appeals for the Federal Circuit, two female employees of the agency filed a complaint against Martin. They contended he was soliciting sex in return for Martin representing them as a union official. The Office of Inspector General (OIG) investigated the complaints.
With the consent of the two women, the OIG recorded the meeting with the two women and the chapter president in a hotel room, Martin referred to the two employees as having an “IOU” list with him and made comments about spanking the women and comments such as “Who’s your daddy?” and “It’s your daddy.” Martin also referred to one of his supervisors, Jimmy Tong, using a racial slur.
In a subsequent meeting to investigate the allegations, Martin repeatedly said he did not recall or remember making sexually suggestive comments to the two female employees or making racially inappropriate comments.
The Administrative Judge (AJ) for the Merit Systems Protection Board found removal to be an appropriate penalty. The AJ found his comments about spanking and “Who’s your daddy?” to be “crass and boorish” but did not support the allegation Martin wanted the women to “provide him with sexual favors in order for him to represent” them in disputes with management.
The AJ also found that the agency did not commit an unfair labor practice (ULP) by recording the meeting while discussing union business because the two employees had consented to the recordings.
The AJ sustained charges of “lack of candor” and failing to follow a non-disclosure order because he sent investigative information to a person outside the Office of Inspector General and who was not involved in the investigation despite Martin having being warned not to disclose information.
The Court of Appeals Decision
The Court debunked most of Martin’s arguments.
It concluded the fact Martin was off-duty was not relevant as his actions related to his duties as a federal employee and his removal contributed “to the efficiency of the service.”
The Court also found that recording the conversations with Martin was not inappropriate as the two other employees in the meeting had consented to the recordings.
The court did not buy Martin’s argument that he was entitled to a “union representative-bargaining unit employee” privilege. Even if such a right did exist, “it does not protect union representatives from charges of misconduct based on discussions with unit member employees.”
The Court also upheld the MSPB conclusion that Martin was “not credible in testifying that he does not recall whether he had made certain sexually suggestive or racially inappropriate comments towards employees.” Instead, he had a duty to admit he used the language but elected not to admit this in order to deflect the investigation.
In effect, as often happens in cases, not telling the truth during an investigation can become a primary reason for firing an employee.