Misdeeds deserve demotion

Government supervisors carry certain responsibilities, one of which is to make sure subordinates comply with agency policies, whether the supervisors agree with them or not. One supervisor at the Labor Department recently decided not to comply with his agency's policies and, even worse, encouraged his subordinates to do the same. This behavior cost him his job, and rightfully so.

The case involved Fayez Hanna, who in July 1996 was demoted from a GS-15 supervisory position as an industrial hygienist at Labor to a nonsupervisory GS-14 position in the same area. The agency claimed he was guilty of two types of misdeeds: defiance of authority and insubordination; and misconduct in exercising management and supervisory duties, undermining management authority and inappropriate conduct in dealing with subordinate employees. The charges stemmed from a September 1993 memo that Hanna wrote to his staff concerning his dealings with upper management. In his memo, Hanna described an assignment from his supervisor as unreasonable and unfair, and he stated, "As long as I am in my present capacity, I will not respond to or implement any dictated unreasonable and unfair managerial practices."

Labor officials said these statements were inappropriate and showed a defiant attitude. The officials claimed that by distributing the memo to his staff, Hanna intended to draw his staff into conflict with his supervisor and incite the staff to join him in rejecting his supervisor's authority.

Labor said Hanna committed three infractions: He refused an order to assign a member of his staff to assist another office for reviewing and recommending contractors and exacerbated the situation with his memo. He continued to refuse to follow the order even after Labor proposed a suspension. And he still refused after his supervisor issued him a memo explaining the nature of the order in more detail.

After the issuance of the proposed demotion, Labor suspended Hanna for 14 days. In the final decision letter on Hanna's case, a Labor official did not sustain the charges related to Hanna's refusal to assign a member of his staff to the contract project. But the official found that it was clear from Hanna's memo that he intended to refuse to comply with his superiors' orders based on his own interpretation of whether such orders were "unreasonable and unfair." This conduct, the deciding official determined, constituted "deliberate, willful, conscious defiance of authority and insubordination."

Hanna filed an appeal to the Merit Systems Protection Board, claiming his demotion was unjust. After a hearing, the administrative judge upheld Labor's charges because Hanna failed to submit evidence of his claim. Hanna then requested a full MSPB review of his case. He claimed he was being punished twice for refusing his supervisor's order to assign a member of his staff to a certain project. For good measure, Hanna also charged his agency with discrimination and whistle-blower retaliation.

The MSPB said the essential elements of a charge of inappropriate behavior by a supervisor are that the employee engaged in specified conduct in his role as a supervisor and that conduct was improper or detracted from the supervisor's character or reputation (Fayez B. Hanna v. Department of Labor, DC-0752-96-1059-I-2, Merit Systems Protection Board). Hanna claimed his conduct was not improper because it amounted to no more than a "managerial disagreement" and that senior executives should not be discouraged from voicing objection to policies they view as unwise. Hanna also alleged that he was compelled to write the memo in order to respond to "wild accusations and rumors floating around the office" concerning his proposed 14-day suspension.

The MSPB concluded that Hanna was not disciplined for notifying his subordinates about the reason for his pending suspension. To the contrary, the Labor official who demoted Hanna testified that there was nothing inappropriate about Hanna notifying his staff about the suspension.

But Hanna did more than just explain the reasons for his suspension, the board said. He implied that his superiors conducted unfair managerial practices, and he openly challenged their authority to make decisions with which he disagreed.

In previous MSPB decisions, the board consistently held that disrespect toward supervisors undermines management's capacity to maintain employee efficiency and discipline. I'll buy that. If a supervisor disagrees with his boss, he shouldn't try to stir up his subordinates and incite them to mutiny. If a supervisor in the private sector acted as Hanna did, he would probably be fired. Hanna got off easy with just a demotion. The MSPB saw it that way too and sustained the demotion.

The board did take issue with the administrative judge's decision to sustain Labor's charge that Hanna intentionally refused to obey an authorized order of a superior when he refused to assign a member of his staff to the contract assignment. Because the board ruled that Labor did not prove Hanna's memo was in response to an actual order, it said Labor failed to show that Hanna's statement constituted insubordination.

Hanna then argued that the administrative judge made a mistake when she refused to allow him to present evidence that Labor discriminated against him because of his ethnic background when it proposed his demotion. The MSPB agreed that the judge made a mistake, but the board found no basis for the discrimination claim.

Finally, Hanna claimed that his demotion was in retaliation for whistle-blower activities under the Whistleblower Protection Act of 1989. But he failed to prove that the demotion was taken in response to any disclosure covered by the WPA.

As to whether demoting Hanna was a reasonable punishment, the MSPB noted that Hanna was a supervisor, and Labor had every right to expect a higher standard of performance from him than from a lower-grade employee. Hanna's actions, for which he had not expressed remorse, constituted more than a mere explanation to his subordinates of the reasons for his suspension. He deliberately challenged his superiors' authority, undermining their ability to maintain employee discipline and efficiency. Accordingly, the board said Hanna's supervisory status was a critical factor in determining a reasonable penalty, so it upheld the demotion.

--Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.

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