In Lowe v Department of the Navy (CAFC No. 2020-1564 (nonprecedential) 1/11/21), the Navy removed a GS-12 Regional Dispatch Center Manager at Navy’s Emergency Management Program, Mid-Atlantic Region.
The first charge, supported by six reasons, was careless or negligent performance of duties. The second charge, with one supporting reason, was conduct unbecoming.
On appeal, the Merit Systems Protection Board (MSPB) held that the first charge was not sustained. It did, however, find the conduct unbecoming charge sustained, but mitigated the penalty to a one-grade demotion to a position with non supervisory duties. Lowe appealed the MSPB’s decision to court.
This write up will focus on the second charge since it resulted in Lowe’s demotion. This is the one specification supporting the conduct unbecoming charge, straight from the agency’s notice:
“Specification a: When having a conversation with Dispatcher Meliqua Heath regarding her performance, with Supervisory Regional Dispatch Center Specialist Lisa Duvall present, you made a comment “If they are not feeding, financing or fornicating with me, then you should not worry about anyone and I am not looking at firing you.” This comment was offensive, disrespectful, and/or inappropriate for you as a supervisor to make to an employee. This type of language is conduct unbecoming a Regional Dispatch Center Manager.”
There was considerable back and forth as to whether the “3 F’s” included the word “fornicating” or a more colorful synonym typically not used in polite company. Lowe crafted a creative argument that the agency’s specification did not use the exact phraseology he had used in the conversation with this female subordinate, and, therefore, a new “reason” was relied upon by the agency, thus violating his due process rights. (Opinion p. 5) In other words, he contended the Navy had to prove he used the exact words spelled out in its specification to sustain this charge.
The court holds that Lowe’s due process argument fails, pointing out that Lowe had ample opportunity to address the charge, and had admitted he had made a statement similar to what he was charged with. Mr. Lowe in effect owned up to his words. He stated to agency investigators that he told Ms. Heath that he “lives by the three f rules….”
In short, the court has upheld the MSPB decision that spared Mr. Lowe his job, but ordered him demoted to a non-supervisory position.