Appealed from: Merit Systems Protection Board
Before Rich, Lourie, and Bryson, Circuit Judges.
The opinion of the court was delivered by: Bryson, Circuit Judge.
This case arose after the Department of the Treasury demoted an employee based on two charges of misconduct. On the employee's appeal, the Merit Systems Protection Board construed one of the two charges as requiring the agency to prove that the employee intended to impede its investigation and held that the agency failed to prove the charge as so construed. The Office of Personnel Management (OPM) petitioned for review by this court, arguing that the Board had improperly construed the charge. We agree with OPM that the Board erred when it required the agency to prove that the employee intended to impede an agency investigation. We therefore reverse the Board's decision and remand the case to the Board for further proceedings.
Lieutenant Stuart A. Crouse was a Supervisory Police Officer in the Security Division of the United States Mint, an agency within the Department of the Treasury. Agency policy requires Mint employees to remove their shoes and go through a magnetometer before leaving a Mint facility. If the magnetometer alarm is activated, the employee must re- enter the magnetometer until cleared by the police officer on duty.
On August 31, 1993, while Sergeant Susan Scheppler was the supervisor on duty at the employee exit of the San Francisco Mint, Lieutenant Crouse went through the magnetometer without removing his shoes. When the magnetometer alarm sounded, he did not return to be cleared. Sergeant Scheppler followed Lieutenant Crouse and told him that he had activated the magnetometer. Lieutenant Crouse did not return for further examination, however, and instead left the building. Lieutenant Crouse's conduct at the time of his departure from the Mint facility on August 31, 1993, formed the basis for the agency's first charge against him -- violating Mint security procedures. That charge was sustained, and it is no longer at issue in this case.
The second charge against Lieutenant Crouse, which is the focus of the dispute between the parties, was labeled "Unacceptable and Inappropriate Behavior By a Supervisor." That charge arose from events that occurred two days after the improper departure incident. The agency alleged that on September 2, 1993, Lieutenant Crouse learned that the agency was investigating his improper departure from the Mint facility. Shortly thereafter, Lieutenant Crouse asked Sergeant Scheppler if she would speak with him "off the record." The agency's notice of charges alleged that Lieutenant Crouse then stepped into a room with Sergeant Scheppler, closed the door part way, and "stood very close to her and stated in a harsh manner" that whatever she said about the incident to those conducting the investigation could be used against him and that "she needed to be very careful of what she said to them" because "they were trying to fire [him] and that [his] career was on the line." The agency further alleged that while Lieutenant Crouse was making those statements, he was pointing at Sergeant Scheppler's chest with his fingers. According to the notice of charges, she "felt threatened by [his] actions because she feared retaliation when she cooperated in an investigation of [his] conduct."
The notice of charges went on to explain why the agency considered the alleged conduct to constitute "unacceptable and inappropriate behavior by a supervisor." It stated:
It appears that you were attempting to persuade Sergeant Scheppler into not cooperating fully in the investigation of your conduct. Even if this was not your intent, you should have realized how your words and manner would have been perceived by a subordinate employee who was being asked in the investigation of this incident to discuss your behavior. Such conduct is especially egregious given that your position as a Supervisory Lieutenant includes, among other responsibilities, evaluation of Sergeant Scheppler's performance, determination of her work assignments, and approval or disapproval of her leave requests.
Based on the two charges, the agency proposed to demote Lieutenant Crouse from his position as Supervisory Police Officer to the position of Police Officer (non-supervisory).
In response to the notice of charges, Lieutenant Crouse argued, through counsel, that the first charge was a technical violation that did not warrant any punishment, and that the second charge was "factually insupportable." He contended that he had not engaged in any conduct toward Sergeant Scheppler that should have caused her to feel intimidated and that "the fact that she claims to have felt intimidated indicates only that she finds cause for intimidation where none exists."
The agency rejected Lieutenant Crouse's arguments, sustained both charges, and demoted him. Lieutenant Crouse then appealed to the Merit Systems Protection Board. At a hearing before an administrative Judge, Sergeant Scheppler testified that Lieutenant Crouse told her in a harsh and intimidating tone that whatever she reported about the incident could affect his job because his supervisors were out to get him. She further testified that as Lieutenant Crouse spoke to her he was pointing his forefinger and middle finger at her chest and that she felt intimidated because of his manner, his actions, and his tone.
The administrative Judge sustained the first charge against Lieutenant Crouse, but not the second. Although the second charge was identified in the agency's proposal and decision notices as "unacceptable and inappropriate behavior by a supervisor," the administrative Judge characterized the charge as "unacceptable and inappropriate behavior as a supervisor with the intent to impede or interfere with an investigation." The administrative Judge thus construed the charge to require proof that Lieutenant Crouse intended to obstruct the investigation into his conduct when he approached Sergeant Scheppler.
The administrative Judge concluded that the agency had failed to prove that Lieutenant Crouse intended to impede the agency's investigation of his conduct. In particular, she explained that she did not find credible Sergeant Scheppler's "impression that [Lieutenant Crouse] sought to impede or interfere with the investigation," and that Sergeant Scheppler "overreacted to [Lieutenant Crouse's] statements." Based on her analysis of the evidence, the administrative Judge concluded that although Lieutenant Crouse "exercised poor judgment when he approached Sergeant Scheppler on this matter," the ...