U.S. Court of Appeals, Federal Circuit
March 05, 1999
DEBORAH M. MESBERG,
DEPARTMENT OF AGRICULTURE, RESPONDENT.
Before Michel, Plager, and Schall, Circuit Judges.
The opinion of the court was delivered by: Per Curiam.
NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.
Deborah M. Mesberg petitions for review of the final decision of the Merit Systems Protection Board (Board) that sustained the action of the Department of Agriculture (agency) removing her for making statements that caused anxiety and disruption in the workplace. See Mesberg v. Department of Agriculture, No. SE-0752-98-0028-I-1 (Sept. 30, 1998). The March 3, 1998 initial decision of the administrative Judge (AJ), which followed a hearing, became the final decision of the Board on September 30, 1998, when the Board denied Ms. Mesberg's petition for review for failure to meet the criteria for review set forth in 5 C.F.R. § 1201.115. We affirm.
Ms. Mesberg was employed by the United States Forest Service as an Accounting Technician, GS-525-5. She worked in the Financial Management section of the Umpquah National Forest Supervisor's Office. Ms. Mesberg was scheduled to attend a training session at the beginning of the week of July 7, 1997. As a single parent, she had arranged for child care to accommodate the session. On July 2, 1997, she was notified by her supervisor, Sandy Stephens, that the training session at the beginning of the week was full and that she would be attending a session at the end of the week instead.
Apparently under stress from events in her personal life, Ms. Mesberg saw the postponement of her training as an example of the poor treatment that she believed she was receiving from her supervisors. In an expression of anger, she commented to Elizabeth Kinney, a co-worker: "I don't make enough money to count around here. I wish I had a gun." At the hearing, Ms. Mesberg's account of what she had said was only slightly different. She recalled stating: "I can understand why people go beserk--it's a good thing I don't have a gun."
Ms. Kinney took the statement as a threat and reported it to Ms. Stephens. As Ms. Mesberg's supervisor, Ms Stephens was shaken by the statement. The next morning, Ms. Kinney told Ms. Mesberg that she had reported the incident. Rather than asserting that she had not meant the statement as a threat, Ms. Mesberg stated: "I wish I had a gun, I'd blow everyone away." Ms. Kinney also reported this comment to Ms. Stephens. At the hearing, Ms. Mesberg testified that she did not recall making this second statement, but acknowledged that she may have.
Ms. Stephens reported the two incidents to Donald Ostby, the Forest Supervisor and Bernie Rios, the Deputy Forest Supervisor. Mr. Ostby summoned Ms. Mesberg to a meeting, in which he informed her that he could not tolerate threats in the workplace and that her comments caused him to be concerned for the safety of her co-workers. Mr. Ostby thereupon placed Ms. Mesberg on administrative leave and she was escorted from the office.
Ms. Stephens held a meeting with other employees in the Financial Management department and told them about the incidents. In addition to Ms. Stephens, at least one other employee was shaken by the statements. Some of the workers were aware that Ms. Mesberg previously had been suspended for an incident in which she had displayed a knife and had asked a co-worker, "Are you afraid I am going to stab you or something? You never know what I'm going to do next." A second meeting, called a critical incident debriefing, also was held. At that meeting, certain employees related past experiences involving Ms. Mesberg and expressed concerns about working with her.
In October of 1997, Roy M. Roosevelt, the Director of Human Resources for the Pacific Northwest Region of the Forest Service, removed Ms. Mesberg from the agency for having made statements that caused anxiety and disruption in the workplace.
Ms. Mesberg appealed her removal to the Board. Following a hearing, the AJ sustained the agency's action. The AJ determined that the agency had carried its burden of proving by a preponderance of the evidence that Ms. Mesberg had committed the offense with which she was charged. See 5 C.F.R. § 1201.56. After considering the relevant factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), he further determined that the agency had not acted unreasonably in imposing the penalty of removal.
Our scope of review in an appeal from a decision of the Board is limited. Specifically, we must affirm the Board's decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. See 5 U.S.C. § 7703; Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984). The decision of the Board in this case is none of these.
Ms. Mesberg raises several arguments on appeal. First, she challenges the factual findings of the Board by asserting that her statements were conditional statements and that she was only threatening herself. She contends that any anxiety caused by her statements was the result of her supervisors' handling of the incidents, rather than her own actions. Second, she argues that she should have been suspended rather than removed. Third, she asserts that her rights were violated by a denial of union representation and a breach of confidentiality. We address these arguments in turn.
Ms. Mesberg's attack on the factual determinations of the Board is without merit.
As far as Ms. Mesberg's first statement to Ms. Kinney is concerned, as noted above, at the hearing there was no significant difference between Ms. Kinney's and Ms. Mesberg's recollections of the statement. As far as Ms. Mesberg's second statement is concerned, she does not challenge Ms. Kinney's version of the statement, in which she threatened to "blow everyone away." This statement clearly was a threat by Ms. Mesberg against her supervisors and/or co-workers. Furthermore, even if Ms. Mesberg did contest Ms. Kinney's account, the AJ credited that account. Such a credibility determination is "virtually unreviewable." Hambsch v. Department of the Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986).
In regard to the anxiety and disruption that arose from Ms. Mesberg's statements, while the AJ found that the agency's actions increased anxiety to some degree, he also found that several employees had a genuine and legitimate "core" of anxiety. The AJ also found that the agency's actions were appropriate to the situation and that Ms. Mesberg was responsible for any increased anxiety that resulted from the agency's appropriate response to her statements. Given Ms. Mesberg's past behavior, there is little doubt that her co-workers were reasonably made anxious by her threats.
Ms. Mesberg also argues that the penalty of removal was unreasonable and amounted to an abuse of discretion because it was overly severe. This argument also is without merit. An agency's penalty will not be disturbed unless it is so disproportionate to the offense involved that it is unreasonable and amounts to an abuse of discretion. See Yeschick v. Department of Transp., Fed. Aviation Admin., 801 F.2d 383, 384-85 (Fed. Cir. 1986). We have approved consideration of the factors set forth in Douglas as a way of assessing the reasonableness of an agency's penalty. See Kline v. Department of Transp., Fed. Aviation Admin., 808 F.2d 43, 45 (Fed. Cir. 1986) (stating that a decision determining the appropriateness of a penalty should contain a reasoned consideration of the Douglas factors). In this case, the AJ considered what he believed were the pertinent Douglas factors: the nature and seriousness of the offense, Ms. Mesberg's length of service, her statements of remorse, and her past disciplinary record. See Nagel v. Department of Health and Human Servs., 707 F.2d 1384, 1386-87 (Fed. Cir. 1983) (holding that only the relevant Douglas factors need to be considered). Weighing these factors, the AJ determined that removal was within the tolerable limits of reasonableness because Ms. Mesberg's offense was serious, because her prior disciplinary action related to a threat against a co-worker, and because she escalated the incident with her second statement when she was informed that her first statement had caused concern among her co-workers.
Ms. Mesberg points to the counseling she received as a factor the Board should have considered. We disagree. The record does not indicate that Ms. Mesberg was receiving counseling at the time of the removal decision, nor does the record indicate that she argued to the Board that the agency had improperly failed to consider counseling she received when it made the decision to remove her. Furthermore, it was not unreasonable to remove Ms. Mesberg in light of her extreme conduct, even assuming that she was receiving counseling.
Ms. Mesberg alleges that she was denied her right to union representation in the meeting in which Mr. Ostby placed her on administrative leave. A union member has a right to union representation at an investigatory interview that he or she reasonably believes might result in disciplinary action. See 5 U.S.C. § 7114(a)(2)(B); N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251, 267 (1975). Ms. Mesberg's meeting with Mr. Ostby was not an investigatory interview, however. Accordingly, Ms. Mesberg did not have a right to union representation at the meeting.
Finally, Ms. Mesberg asserts that her right of confidentiality was violated because her statements were discussed with co-workers. Ms. Mesberg had no expectation of privacy or confidentiality in statements she made in the workplace to a co-worker, however. See Katz v. United States, 389 U.S. 347, 361 (1967) (statements exposed "to the 'plain view' of outsiders are not 'protected' because no intention to keep them to himself has been exhibited") (Harlan, J., Concurring). Further, the dissemination of the information was appropriate to provide notice to co-workers of a potential threat.
For the foregoing reasons, the final decision of the Board sustaining Ms. Mesberg's removal is affirmed.
Each party shall bear its own costs.