Rushing to judgment obscures crucial details

The U.S. Court of Appeals for the Federal Circuit recently heard an appeal from Donald C. Newton an Air Force employee who had unsuccessfully appealed his firing to the Merit Systems Protection Board (MSPB).

Newton was an aircraft engine repair supervisor at Tinker Air Force Base Okla. He had been there since April 1976 and had been a supervisor since 1988.

On June 18 1994 Newton was supervising employees during an overtime shift. Following his return from lunch Newton used some wire to shape a cross out of two chemical mixing sticks each approximately 2 inches tall and 1 inch wide. He placed the cross on a cart sprayed it with alcohol and lit it on fire in his employees' work area. As the cross burned Newton called it to the attention of Guy Lewis an African-American. Newton then put the fire out and returned to work.

The incident was reported to Newton's supervisor Paul Thomas who questioned a number of employees about the incident and placed Newton on nonduty pay status. On June 27 Thomas wrote Newton that he planned to fire him for his actions on June 18. The letter specifically cited racial slurs toward a "subordinate minority employee" and "reckless disregard...for the safety of personnel and the work environment."

The charge against Newton was based upon the Air Force's guide to disciplinary action which defines discriminatory conduct in the workplace as "discrimination based on race color religion sex national origin age or handicapping conditions." Discrimination also applies to racial or ethnic slurs or disseminating literature containing such slurs.

On Aug. 8 after considering Newton's response to the proposed removal Kenneth Breshears the deciding official fired Newton.

Newton appealed his removal to the MSPB on Aug. 26. He argued that he had not discriminated against Lewis but had intended merely to joke with him. The administrative law judge hearing Newton's appeal on behalf of the MSPB issued a decision sustaining the Air Force's charges of discrimination and supported the decision to remove Newton.

"I find that the charge that the appellant engaged in deliberate racial conduct towards a subordinate minority employee is actionable misconduct " the judge said. "The appellant's behavior in fashioning the cross setting it afire and showing it to Lewis was deliberate rather than inadvertent conduct. The conduct was racially offensive it is unnecessary to explore what a burning cross symbolizes to African-Americans. While the appellant may have intended at the time of the incident to merely joke with Lewis I find that his intentions are not relevant to the misconduct as it is charged and therefore are not exculpatory."

In his subsequent appeal Newton argued that an act cannot be considered discriminatory conduct unless the conduct can be shown to be "deliberate" and taken with a specific discriminatory intent. He argued that he intended only to be funny and did not intend to discriminate against Lewis.

The Air Force disagreed saying "The patently offensive racial nature of the act combined with the steps taken by Newton [burning the cross] clearly revealed that his actions were deliberate."

At issue is whether Newton deliberately discriminated against Lewis. In deciding this case the court noted that the definition of discrimination that was used as a basis for firing Newton prohibits "deliberate" discrimination but does not talk about intent. The court concluded that there is nothing in the term "deliberate" that suggests that a specific intent element has to reside within the offensive conduct. (Donald C. Newton v. Department of the Air Force 95-3293. Decided June 4 1996.)

Newton did not contend that he was ignorant of the racially charged meaning of a burning cross the court noted. Indeed such a suggestion would fly directly in the face of his claim to have intended the action as a joke.

Moreover the court agreed with the administrative law judge that no reasonable person even remotely aware of U.S. history could fail to know the racist terrorism that a burning cross symbolizes.

Newton's removal the court said vindicates the Air Force's legitimate interest in maintaining an efficient operation. Any injury that Lewis may or may not have actually suffered is beside the point.

More Facts Come to Light

Although this may appear to be an open-and-shut case the court's decision was not unanimous. A dissenting opinion said prior incidents leading up to this case should be taken into account when weighing the appropriate punishment. According to the opinion Newton previously had permitted Lewis to engage him in racially charged conversations that included racial epithets.

Although Newton said he did not respond in kind during these incidents he also failed to take appropriate action to discipline Lewis for his improper behavior toward his supervisor the court said. Indeed for whatever reasons Newton seemed to condone - if not encourage - Lewis' improper behavior according to the court's opinion. Against that backdrop the dissenting judge said the inevitable happened.

According to the court Newton had an 18-year record of unblemished federal service without the slightest taint of prior racially discriminatory conduct on his part. One cannot help but wonder if the Air Force should have tried to determine whether he was having some kind of mental breakdown or sought some other explanation for such aberrant behavior.

In this case however the dissenting judge said there was an obvious explanation for Newton's behavior: Newton permitted Lewis to behave improperly and in a misguided effort to deal with Newton's behavior behaved improperly himself.

The dissenting opinion contends that the Air Force should have disciplined Lewis for unacceptable behavior toward his supervisor and should have disciplined Newton for failure to effectively supervise perhaps by demoting him.

This case is interesting because without the dissenting opinion no one would have known about the relationship between Newton and Lewis. Now that we do know about that relationship it is clear that both were guilty of ugly inappropriate and discriminatory acts.

Package Punishment

Clearly Newton's alleged behavior was abhorrent and should not be tolerated. Lewis' alleged behavior also was offensive and the Air Force and Newton failed to address it. If in fact Lewis behaved as he did he should have been disciplined.

I tend to agree with the dissenting judge that this case should have been processed as a "package" deal. As in so many discrimination-based personnel actions that end up in the courts the Newton case illustrates that there are as many victims as guilty parties and plenty of blame to go around.

Bureaucratus is a retired federal employee who is a regular contributor to Federal Computer Week.

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