Federal Circuit: Yes, You Can Be Terminated for One Bad Email
This case law update was written by Conor D. Dirks, an attorney at the law firm of Shaw Bransford & Roth, where since 2013 he has represented federal officials and employees in all aspects of federal personnel employment law. In addition to his work on behalf of government employees, Mr. Dirks has successfully defended small and medium-sized government agencies against EEO complaints and MSPB appeals of agency disciplinary actions.
On October 8, 2021, the Federal Circuit Court of Appeals affirmed that federal employees can be fired for one e-mail, if the e-mail is sufficiently disrespectful.
A Personnel Psychologist employed at the Department of the Navy became embroiled in a dispute with his employer about a change in his position’s designation from “non-sensitive” to “non-critical sensitive.” This change, apparently, brought with it a requirement for a “secret” security clearance, given that those with “non-critical sensitive” positions “could potentially cause damage to national security.”
The employee viewed this policy change as a regulatory violation, and sent an e-mail on May 9, 2019 that would eventually lead to his termination. The e-mail copied 20 individuals, including “his entire chain of command,” and included inflammatory accusations about the motivation behind the policy change. The employee accused leadership of engaging in “fraud,” and a “conspiracy to commit fraud.” The e-mail encouraged those copied on it to “avoid becoming further enmeshed in what I believe to be a criminal enterprise.” It also appeared to accuse one member of the leadership team of being the reason one employee “mysteriously disappeared without a trace, presumably because she and [the manager] butted heads over some juicy security related-matter.”
The e-mail ended with a warning to the individuals tasked with changing his position description to comply with the new policy: “Proceed at your own risk………”
On June 3, 2019, the agency issued the employee a notice of proposed removal for improper conduct, citing the sections of the e-mail listed above, and other phrases in the e-mail that the agency believed were “disrespectful” and “improper.” After the employee responded, the agency sustained the removal. The employee appealed his removal to the Merit Systems Protection Board (MSPB), where he also claimed that his removal was in retaliation for the purportedly protected whistleblower disclosures in his May 9 e-mail.
At MSPB, the Administrative Judge (AJ) affirmed the Navy’s decision to remove the employee. The AJ described the e-mail as being “as delicate and nuanced as a cannon blast” with “an air of moral superiority, abrasiveness, condescension, and profound disrespect which simply cannot be minimized or misinterpreted.” Concluding that the employee showed “dreadfully poor judgment,” and given his position as a Personnel Psychologist, the AJ upheld the penalty of removal as reasonable. Finally, the AJ made clear that the employee’s May 9th email did not make a protected disclosure under the Whistleblower Protection Act because his dispute with Navy was a policy dispute, and his belief that the policy change was unlawful was “objectively unreasonable.”
The employee appealed the MSPB’s decision to the Federal Circuit. The appeals court agreed with MSPB; the employee’s belief that his employer violated the law when they changed his position description was not a reasonable belief. Instead, the Federal Circuit found that the Navy “adopted its security changes in compliance with the cited regulations, not as a pretext for manipulating personnel.” In addition, the Federal Circuit pointed to the testimony of a subject matter expert who “credibly and consistently testified with supporting evidence that this planned change was not only permitted but was required.”
With regard to the penalty, the MSPB AJ credited the deciding official’s testimony that removal was not unreasonable, in part because the employee had been suspended for three days several years earlier for disrespectful conduct, and that prior suspension did not deter him from future disrespectful conduct.
The appeals court affirmed the MSPB AJ’s findings on the penalty and found that removal was a reasonable penalty for the conduct displayed in the e-mail. The appeals court cited back to the decision’s focus on the fallout the e-mail would have caused if the employee remained employed, and how it would have “detracted from the [employee’s] character and reputation as a Personnel Psychologist in any professional office.” Thus, the appeals court held that the Navy “did not act unreasonably in concluding” that the employee could no longer succeed in his position, and therefore in deciding to remove him.
Read the full case: Miranne v. Navy.
For over thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.