The following are excerpts from Lawson A. Rose v. United States Postal Service (Merit System Protection Board [MSPB] decision issued December 10, 2007):
Effective January 31, 2007, the agency removed the appellant from his position as a preference-eligible PS-4 Regular Mail Handler with the agency’s Cardiss Collins Postal Facility (Cardiss Collins) in Chicago, Illinois, based on a charge of Unacceptable Conduct/Violent and Threatening Behavior Towards Co-Workers. The agency based its charge on a November 5, 2006 incident in which the appellant went to Cardiss Collins’s attendance control office and allegedly shouted at Mail Processor Clerks Janice Dean and Roslyn Oliver, “Give me my [time] card before I blow your brains out.” After Ms. Dean and Ms. Oliver informed him that his card was not in the office, the appellant left the office, then returned about ten minutes later and allegedly acted as though he was “holding a machine gun/firearm and making machine gun sounds while pointing at Ms. Dean and Ms. Oliver. He then allegedly laughed and walked a way.
footnote: the AJ noted that Ms. Dean and Ms. Oliver attempted to retract their complaints against the appellant about three weeks before the hearing and informed the agency that they would not testify at the hearing absent a subpoena from the AJ. The AJ found that, “based on their testimony during the hearing, it is clear Ms. Dean and Ms. Oliver requested not to participate in this appeal because they remain afraid of the appellant.”
The appellant appealed his removal to the Board and requested a hearing. He denied threatening anyone and argued that the agency’s action was taken in retaliation for his prior equal employment opportunity (EEO) activity. The administrative judge (AJ) apprised the appellant of the burden and elements of proof as to his affirmative defense.
After a hearing, the AJ issued an ID affirming the agency’s action. The AJ found that the agency proved its charge by preponderant evidence, that the action promotes the efficiency of the service, and that the penalty of removal is reasonable, The AJ further found that the appellant failed to prove his affirmative defense.
The appellant has filed a PFR in which he asks the Board to consider documents that he filed in another Board appeal.
The AJ erred in analyzing the charge.
We have reopened this case because we find that the AJ erred in not analyzing the charge under Metz v. Department of the Treasury, 780 F.2d 1001,1002-03 (Fed. Cir. 1986). The AJ correctly noted that, in deciding whether statements constitute threats, the Board applies the reasonable person standard, considering the listeners’ reactions, the listeners’ apprehension of harm, the speaker’s intent, any conditional nature of the statements, and any attendant circumstances. Metz, 780 F.2d at 1002-03;. However, the AJ then incorrectly identified the charge as “making statements that caused anxiety and disruption in the workplace” and stated that, “because intent is not an element of the charge, the appellant’s intent is irrelevant to determine whether he engaged in the charged misconduct . . . .” Accordingly, the AJ did not analyze the charge under Metz.
In assessing the reasonableness of the agency’s penalty, the AJ considered the relevant documentary evidence and the hearing testimony of Mr. Muse and noted that the Board has repeatedly upheld removal penalties in threat cases. She reviewed Mr. Muse’s reasoning and found that, although the agency failed to present evidence which would explain Mr. Muse’s assertions concerning the notoriety of the appellant’s conduct or his lack of rehabilitative potential, removal did not exceed the bounds of reasonableness in light of the seriousness of the offense and the Board’s precedent finding that removal is a reasonable penalty under similar circumstances. Recognizing that the Board must accord proper deference to the agency’s primary discretion in managing its workforce, we see no reason to disturb this finding.