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Mesberg v. Department of Agriculture

March 05, 1999

DEBORAH M. MESBERG,
v.
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.

DECISION

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.

DISCUSSION

I.

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. ยง 1201.56. After considering the relevant factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280 ...


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