Private comments imperil fed's employment

Given these circumstances, the MSPB ruled that none of the other factors established in the Treasury case would be sufficient to establish that Powell's statements to Kocher constituted a threat. The MSPB ordered that Powell be reinstated. ~~Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.Charles Powell, a GS-8 computer operator at the Justice Department, learned that the government does not always honor its promise to keep confidential counseling services private. A recent decision by the Merit Systems Protection Board (MSPB) [Charles A. Powell Jr. v. Justice Department, DC-0752-95-0333-I-1, Jan. 9, 1997] illustrated that Powell wrongfully lost his job after his superiors received information about a conversation he had with a professional counselor.

DOJ removed Powell from his position in January 1995, charging that he threatened to kill five agency employees during an August 1994 telephone conversation with Heather Kocher, an Employee Assistance Program (EAP) counselor. After holding a hearing, an administrative law judge representing the MSPB sustained the charge, finding that Powell's statement to Kocher constituted a threat. The judge rejected Powell's testimony that he told Kocher he felt like killing the individuals, and he concluded that Powell could not substantiate his defense that his removal was a reprisal for whistle-blowing.

Powell appealed the decision to the full MSPB, saying the administrative judge was wrong in accepting Kocher's testimony as to the actual words he spoke. Powell contended that he repeatedly indicated to Kocher that he did not intend to harm anyone.

In an earlier case that involved the Treasury Department, the U.S. Court of Appeals for the Federal Circuit ruled that the MSPB must consider the connotation a reasonable person would give to words spoken by an individual to determine if the words constituted a threat.

That ruling said the MSPB should consider five factors: the listener's reactions, the listener's apprehension of harm, the speaker's intent, any conditional nature of the statements and the attendant circumstances.

The MSPB said the most significant factor in this case that weighed in Powell's favor was the attendant circumstances. In determining whether Powell made a threat, the MSPB said the administrative judge should have considered the context in which Powell made the supposedly threatening statements.

Powell had just been notified in August 1994 of a change in his shift assignment that would interfere with his responsibility to care for his wife's

84-year-old grandmother. When he contacted Kocher, he expressed his frustration and anger with the management and union officials whom he believed were responsible for his shift change. According to Kocher, Powell had calmed down by the end of their telephone conversation.

The MSPB said the administrative judge should not have discounted this context and not viewed Powell's arguments as an attempt to escape accountability for making a threat.

In the MSPB's view, Powell's contact of an EAP counselor showed he acknowledged his difficulty in controlling his anger and that he had a desire to seek appropriate avenues for its release.

The MSPB was also troubled by the agency's use of Powell's conversation with an EAP counselor as the basis for his removal. The agency advertised its EAP as "extending confidential assistance for personal and/or family problems."

It encouraged employees to take advantage of the resources that were available through the program to resolve personal difficulties at an early stage. It specifically provided that the program was "authorized by laws [that] protect the privacy of the individual and confidentiality of records" and that "an employee's job security shall not be affected" by requests for counseling or referral assistance. The agency certainly did not honor its promise.

Powell testified that he assumed his conversation would be private because Kocher was a counselor, and the agency did not notify employees of the limits to its EAP confidentiality policy. Furthermore, Kocher testified that she understood Powell was requesting counseling when he called. The MSPB said that under these circumstances, "it would be contrary to the policy and purpose of the EAP to find that Powell made a threat and to take action against him."

Kocher's testimony demonstrates that the agency's EAP was successful because she said Powell had calmed down by the end of their conversation, and she did not believe he would harm himself or others. Moreover, the record indicates that Powell did not engage in any further behavior that could be characterized as threatening.

As if that weren't enough, the record also shows that Powell submitted written apologies to two DOJ employees who were involved in the incident.

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