Bad behavior is inexcusable

A federal employee recently learned the hard way that yelling at your supervisor in front of others is not very clever.

The case involved Jeri Lewis, an employee of the Department of Veterans Affairs who was removed from her GS-7 position as a certified respiratory therapy technician at the Philadelphia VA Medical Center. Her removal was based on a charge of disrespectful conduct and deliberate failure or unreasonable delay in carrying out instructions.

Specifically, Lewis twice interrupted her supervisor's meeting with a sales representative from a company seeking business with the VA. Lewis yelled at her supervisor in the presence of co-workers and advanced toward her supervisor menacingly. Lewis' record also revealed that she had been disciplined previously for similar misconduct and that, as part of a grievance arbitration, she had received an 18-month suspension.

Lewis filed a timely formal Equal Employment Opportunity complaint with the agency, claiming that her termination was motivated by racial discrimination and revenge for filing a prior EEO complaint against her supervisor. The VA conducted an investigation and found that no discrimination or reprisal had occurred.

Lewis then appealed her removal, claiming it was based on her age and on a disability - obesity - in addition to her previous claims of unfairness.

An administrative judge at the Merit Systems Protection Board, which reviewed Lewis' appeal, ruled that there was good cause for the agency's action and that a definite connection existed between Lewis' misconduct and the proper performance of her job. The judge also said the penalty was within tolerable limits and affirmed the charge of disrespectful conduct. The judge also sustained the charge of deliberate failure or unreasonable delay in carrying out instructions.

None of Lewis' claims seemed to hold up. She couldn't really claim age discrimination because she was only 35 years old. She couldn't claim disability discrimination from obesity because no medical evidence had been submitted to support that claim. And she couldn't prove racial discrimination because she had failed to show disparate treatment of similarly situated minority employees. The judge also found that Lewis failed to establish a case of retaliation for having filed an earlier EEO complaint because there was no connection between her complaint and the disciplinary action.

Lewis then filed a petition for review by the full MSPB, challenging the administrative judge's finding. The MSPB affirmed the judge's determination that Lewis' behavior constituted disrespectful behavior and did not delve any further into the case. The board found that Lewis' behavior was reason enough for termination (Case PH-0752-98-0127-I-1, Jeri F. Lewis v. Department of Veterans Affairs, Dec. 31, 1998).

The MSPB's rationale was that "insolent disrespect towards supervisors so seriously undermines the capacity of management to maintain employee efficiency and discipline that no agency should be expected to exercise forbearance for such conduct more than once." In other words, two strikes and you're out.

During the review of Lewis' prior misconduct, the arbitrator who reduced her penalty wrote that Lewis "must make changes in her argumentative and sometimes belligerent behaviors and in the way she handles stress on the job" if she were to have a successful career with the VA or any other employer. The MSPB didn't think Lewis was rehabilitated at all. She again acted improperly, only two years after her suspension.

Her supervisor testified that he considered various alternative punishments in this case. But he decided that removal was appropriate because of Lewis' lack of remorse, the seriousness of the misconduct, her length of service and her prior disciplinary record. The MSPB agreed, and so do I.

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


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