Before: Erdreich, Chairman; Slavet, Vice Chair; Marshall, Member

CASE SUMMARY

AFTER APPLYING THE FACTORS IN METZ V. DEPARTMENT OF THE TREASURY [86

FMSR 7001], THE BOARD CONCLUDED THAT THE AGENCY DID NOT PROVE THAT THE

APPELLANT MADE A VERBAL THREAT. THE LANGUAGE USED BY THE APPELLANT WAS

CONDITIONAL, THE LISTENERS DID NOT FEEL PERSONALLY THREATENED AND DID NOT

TAKE IMMEDIATE ACTION, THERE WAS EXPERT TESTIMONY THAT THE APPELLANT DID NOT

INTEND TO THREATEN ANYONE, AND THERE WERE NO ATTENDANT CIRCUMSTANCES THAT

PROVIDED EVIDENCE OF A THREAT.

After applying the factors in Metz v. Department of the Treasury [86 FMSR 7001],

the Board concluded that the agency did not prove that

the appellant made a verbal threat. The agency had

removed the appellant, a PS-5 Parcel Distribution Clerk, on a charge of

"misconduct, making a verbal threat" after he voiced loudly and angrily to a

co-worker, "If I had a gun right now, I'd start shooting." The appellant's

frustration had grown when he realized that he would not be able to finish

distributing parcels before the end of his shift, and he made the alleged

threat when he could not find a mail tub which he believed should have been

there. On appeal, the AJ found that the agency met its burden of proving the

charge and that the removal penalty was within the tolerable limits of

reasonableness. The appellant petitioned the Board for review, contending

that the AJ erred in finding that his statement constituted a threat under

Metz. After applying the five Metz criteria (the listener's reactions, the

listener's apprehension of harm, the speaker's intent, any conditional

nature of the statements, and the attendant circumstances), the Board found

that the agency did not prove its sole charge of verbal threat. The language

used by the appellant was conditional, the listeners did not feel personally

threatened at the time of the outburst and took no immediate action which

would indicate apprehension of harm, there was unrebutted expert testimony

that the appellant did not intend to threaten anyone, and there were no

attendant circumstances which provided preponderant evidence of the

appellant's having made a verbal threat. The Board stated that the fact that

the appellant's misconduct might have supported another serious charge could

not influence its decision, since the agency brought only the charge of

threat. The Board noted that it did not condone the behavior of the

appellant, and it was sympathetic to the agency's plight in having a

troublesome employee in the workplace, but the appellant's conduct did not

meet the stringent test imposed by the Federal Circuit in Metz. Accordingly,

the Board reversed the appellant's removal.

FULL TEXT

APPEARANCES:

Alan F. Blakley, Esquire, Blakley & Velk, Missoula, Montana, for the

appellant.

Pat D. Simmons, Billings, Montana, for the agency.

Opinion and Order

The appellant has petitioned for review of an initial decision which affirmed

the agency's removal action. For the reasons set forth below, we GRANT the

appellant's petition and REVERSE the initial decision. The appellant's removal

is NOT SUSTAINED.

Background

The appellant appealed his removal from the position of Parcel Distribution

Clerk, PS-5, effective September 22, 1995, on a charge of "misconduct, making

a verbal threat." See Initial Appeal File (IAF), Tab 6, Subtab 4d. After

reviewing the evidence, the administrative judge found that the appellant made

a verbal threat in violation of the agency's regulations and policy. See IAF,

Tab 20 (henceforth "ID") at 3. The administrative judge divided his analysis

into two parts: determining what statement was made by the appellant, and

analyzing whether that statement constituted a threat, under the reasonable

person standard. Id.

As to the nature of the statement, the administrative judge concluded that the

appellant's statement, voiced loudly and angrily to co-worker Marilyn Evans

(Evans), Rural Carrier, was: "If I had a gun right now, I'd start shooting."

See id. at 5.

As to the characterization of the statement, the administrative judge stated

that his review of the witnesses' testimony convinced him that they considered

the appellant's statement to be a threat, felt apprehensive for their personal

safety and the safety of the Post Office in general, and reacted accordingly.

See id. The administrative judge concluded that the agency met its burden of

proving the charge by a preponderance of the evidence. See id. at 8.

Finally, the administrative judge found that the removal penalty was within

the tolerable limits of reasonableness. See id. at 8-9.

Analysis

In his petition for review, the appellant contends that the administrative

judge erred in finding that his statement constituted a threat under Metz v.

Department of the Treasury, 780 F.2d 1001 (Fed. Cir. 1986) [86 FMSR 7001]. We

agree.

It is well settled that in order to apply the "reasonable person" standard to

determine whether words constitute a threat, we must weigh the following

factors:

(1) The listener's reactions;

(2) The listener's apprehension of harm;

(3) The speaker's intent;

(4) Any conditional nature of the statements; and

(5) The attendant circumstances.

Id. at 1002. After setting out the sequence of pertinent events, we address

these factors seriatim.

On the morning of May 25, 1995, the appellant was frustrated because he was

behind in the distribution of parcels from the previous day. See Hearing Tape

(HT) 3B. The administrative judge found that the appellant's frustration grew

when he realized that he would not be able to finish distributing parcels

before the end of his shift at 8:30 a.m. ID at 2, citing HT 3B. Around 8:00

a.m., when he could not find a mail tub which he believed should have been

there, he made the statement in question to co-worker Evans. HT 1A (testimony

of Evans).

The following people either heard, overheard, or were informed of the

appellant's statement to Evans on the day it occurred. Sharon Whisler

(Whisler), a Rural Carrier Auxiliary who was working 15 feet away, overheard

the statement. HT 1A, 1B. Neither she nor Evans took any steps to report the

appellant's statement at that time. Twenty minutes later, Evans "mentioned"

the statement to Barbara Jean Eggebrecht (Eggebrecht), Rural Carrier

Associate, while the two were on break. HT 1A (testimony of Evans), HT 1B

(testimony of Eggebrecht). When their break ended, Eggebrecht then relayed

information of the incident to Mayda Brendsel (Brendsel), Shop Steward, who,

in turn, later that day notified the Postal Inspection Service of the

incident. HT 2A (testimony of Brendsel). The agency then placed the appellant

on administrative leave as of the date of the incident, and ordered him to

undergo a psychiatric fitness for duty examination. See IAF, Tab 15 at 3.

In assessing the listeners' reactions, we find that they made no report to

either supervisors or security. Rather, there was conversation about it during

a break; and when a union steward was later told of the incident by employee

Eggebrecht, who did not directly hear the appellant's statement, she waited

until her work shift ended to place a call to the agency "hot line." Thus, the

evidence shows that no immediate effort was made by the appellant's co-workers

to remove either the appellant or themselves from the work place, or, to

apprise anyone of the need for immediate action. Rather, the listeners'

reactions were much like those described in Metz, where the court found that

those who heard the statements did not react to them as if they were threats.

See Metz at 1003.

With respect to the listeners' apprehension of harm, we find that the two

workers who heard the statement when it was made - Evans and Whisler - both

continued to do their work at their stations, see HT 1A (Evans: "I turned back

to my case, and continued working"), and both reacted to the statement more as

an annoyance than as a threat, see HT 1A (Whisler, on her reaction: "Are we

going to have to go through more [of the appellant's] outbursts?"). Although

Evans testified that she was fearful after returning to work the next day, she

stated that her concern was not based on the appellant's comment but on

co-employees' comments that the appellant might retaliate against her for

reporting him. She further testified that she met the appellant at a cocktail

lounge sometime after he was removed and did not feel threatened by him. See

HT 1A (Evans).

Two agency witnesses, Barbara Eggebrecht and Mayda Brendsel, expressed

substantial fear of harm from the appellant. Neither, however, heard the

remark or was in the appellant's presence when the remark was made. Rather, as

stated above, Marilyn Evans mentioned the remark to Eggebrecht during a break

and Eggebrecht then reported it to Brendsel, and their testimony indicates

that their reactions and fears were based largely on prior unpleasant

interactions with the appellant. See HT 1B (Eggebrecht) and 2A (Brendsel).

The agency chose not to call as a witness, Daunhauer, the mail clerk who had

moved the mail tub which the appellant needed, and who therefore might have

had the greatest reason to feel threatened. See HT 1A. However, based on a

statement by the agency representative in a prehearing conference that the

agency would not call Daunhauer because he did not feel threatened, the

administrative judge found that the mail clerk did not feel threatened. See ID

at 6 and HT 1A. Finally, the agency itself conceded in its closing brief that

"the listeners did not feel personally threatened at that particular time."

See IAF, Tab 19 at 8.

As to the speaker's intent, the appellant's expert witness John Santa (Santa),

PhD, a clinical psychologist who had been treating him for eighteen months

before the incident, testified that both he and Dr. Herbert Gray (Gray), a

psychiatrist who, at the agency's request, administered a fitness-for-duty

examination after the incident, are of the opinion that the appellant did not

intend to threaten anyone. Dr. Santa conferred with Dr. Gray after Dr. Gray's

first examination of the appellant, and read the report written subsequently

by Dr. Gray. See HT 2A (Santa) and IAF, Tab 14, Ex. A (Gray). Dr. Gray's

affidavit focuses on his conclusion that the appellant did not intend to harm

anyone and that he does not represent a danger in the workplace. Although Dr.

Gray does not specifically address the appellant's intent in making the

statement, the general tenor of his affidavit is consistent with Dr. Santa's

testimony. It should be noted that Dr. Santa had read the Metz decision and

found its criteria to be reasonable and appropriate from a clinical

standpoint. See HT 2A (Santa). Thus, we find that it is likely that his

professional assessment of the appellant's intent is in accord with the legal

criteria.

The administrative judge did not take any note of Dr. Gray's opinion, and

found that Dr. Santa's conclusions were "questionable," see ID at 8, on four

grounds: 1) He did not interview the postal employees who felt threatened by

the appellant's statement, and so he had to accept the appellant's version of

events; 2) at the hearing he did not clarify whether his opinion was related

to the witnesses' version of the appellant's statement or the appellant's

version; 3) he did not perform any tests to support a diagnosis; and 4) he

admitted that in spite of eighteen sessions he had with the appellant focusing

on anger management, the appellant did not handle the situation in the best

way. ID at 7-8, citing HT 2A.

First, the testimony substantiates that the two employees who actually heard

the appellant's outburst, as well as the one who had apparently generated the

appellant's anger, did not, in fact, feel threatened. Thus, Dr. Santa's

admitted failure to interview the postal employees involved is not of

significance to his opinion as to the intent of the appellant's statement.

Second, Dr. Santa testified that regardless of which version of the statement

was proffered to him, he did not consider that the appellant intended it as a

threat. See HT 1A. Third, a diagnosis is not a prerequisite to a

professionally informed opinion as to whether the appellant intended to make a

threat. Indeed, since diagnostic tests would only be relevant to diagnosing a

particular type of illness, they might be relevant to whether the appellant

would be likely to harm anyone, but would appear to be irrelevant to a

determination of whether the appellant intended his statement to threaten

anyone. It should be noted that Dr. Gray, whom the agency tasked with

performing a psychological fitness for duty examination, apparently did not

find it necessary to administer diagnostic tests to the appellant either.

Finally, Dr. Santa's concession that the appellant did not "choose the right

way" in this matter, see id., does not in any way impact on a determination of

the appellant's intent. Certainly, no one would argue that the appellant acted

in an appropriate manner; that, however, is not the question before us.

Rather, consistent with the agency's sole charge, we must determine whether

the appellant's actions amounted to a threat. Accordingly, we find no merit in

the administrative judge's reasons for finding Dr. Santa's expert testimony

"questionable."

Significantly, the language used was conditional; such phraseology weighs

against a finding of threat under the fourth factor which must be considered

in applying the Federal Circuit's test. See Metz, 780 F.2d at 1003 ("[an

employee who makes] a generalized conditional statement is less likely to have

intended to threaten a co-worker than an employee who stated a simple

threat"); see also Hayslett v. United States Postal Service [88 FMSR 5348]

(conditionality an additional factor in not sustaining a charge of threat).

As to the consideration of the fifth factor under Metz, "attendant

circumstances," we find that one of the two attendant circumstances discussed

by the administrative judge at least equally supports a finding opposite to

that which he reached. The administrative judge noted that although the

appellant had a history of outbursts, use of profanity, and intimidating

behavior, his statement on this occasion was different from those previous

instances; "he had never made a threat before." ID at 8. This observation is,

of course, in accord with the administrative judge's conclusion that the

appellant's statement was a threat. The context of the appellant's history of

anti-social but non-violent verbal outbursts, however, offers equal support to

the conclusion that his statement was not a threat but merely another

intemperate outburst. Indeed, the non-apprehensive immediate reactions of the

persons who heard the statement, as set forth above, appear to have resulted,

at least in part, from their being accustomed to the appellant's "bizarre"

comments. See HT 1A (Evans and Whisler testimony).

As for the second attendant circumstance referred to by the administrative

judge - that the appellant's reaction was disproportionate to its cause - we

agree. The fact that a comment is disproportionate, bizarre, or even

"irrational," however, does not mean that it constitutes a threat.

Based on our consideration of all the factors enumerated in Metz, we find that

the agency did not prove its sole charge of verbal threat. See Kilgour v.

Department of Veterans Affairs [95 FMSR 5191] (in applying the reasonable

person criterion, the Board is to apply the five Metz considerations in

deciding whether statements constitute threats), abrogation in part on other

grounds noted in Moscato v. Department of Education [96 FMSR 5408]. The

language used was conditional, the listeners did not feel personally

threatened at the time of the outburst and took no immediate action which

would indicate apprehension of harm, there is unrebutted expert testimony that

the appellant did not intend to threaten anyone, and there are no attendant

circumstances which provide preponderant evidence of the appellant's having

made a verbal threat.

Since the agency brought only the charge of threat, this analysis must end our

inquiry. The fact that the appellant's misconduct might well have supported

another serious charge cannot influence our decision. See Lanza v. Department

of the Army [95 FMSR 5186], citing Johnston v. Government Printing Office [81

FMSR 5286] (the Board will not sustain an agency action based on a charge that

could have been brought, but was not).

By this decision, we do not condone the behavior of the appellant. Rather, we

are sympathetic to the agency's plight in having a troublesome employee in the

workplace, but that is not sufficient reason to find that his conduct meets

the stringent test imposed by the Federal Circuit for threats in Metz.

Accordingly, we reverse the removal.

Order

We ORDER the agency to cancel the appellant's removal and to restore the

appellant effective September 22, 1995. See Kerr v. National Endowment for the

Arts, 726 F.2d 730 (Fed. Cir. 1984) [84 FMSR 7001]. The agency must accomplish

this action within 20 days of the date of this decision.

We also ORDER the agency to issue a check to the appellant for the appropriate

amount of back pay, interest on back pay, and other benefits under the Back

Pay Act and/or Postal Service regulations, no later than 60 calendar days

after the date of this decision. We ORDER the appellant to cooperate in good

faith in the agency's efforts to compute the amount of back pay, interest, and

benefits due, and to provide all necessary information the agency requests to

help it comply. If there is a dispute about the amount of back pay, interest

due, and/or other benefits, we ORDER the agency to issue a check to the

appellant for the undisputed amount no later than 60 calendar days after the

date of this decision.

We further ORDER the agency to inform the appellant in writing of all actions

taken to comply with the Board's Order and of the date on which the agency

believes it has fully complied. If not notified, the appellant should ask the

agency about its efforts to comply.

Within 30 days of the agency's notification of compliance, the appellant may

file a petition for enforcement with the regional office to resolve any

disputed compliance issue or issues. The petition should contain specific

reasons why the appellant believes that there is insufficient compliance, and

should include the dates and results of any communications with the agency

about compliance.

This is the final order of the Merit Systems Protection Board in this appeal.

5 C.F.R. 1201.113(c).

Notice to the Appellant Regarding Fees

You may be entitled to be reimbursed by the agency for your reasonable

attorney fees and costs. To be reimbursed, you must meet the criteria set out

at 5 U.S.C., 7701(g) or 1221(g), and 5 C.F.R. 1201.202. If you believe you

meet these criteria, you must file a motion for attorney fees WITHIN 60

CALENDAR DAYS OF THE DATE OF THIS DECISION. Your attorney fee motion must be

filed with the regional office or field office that issued the initial

decision on your appeal.

Notice to the Appellant Regarding Further Review Rights

You have the right to request the United States Court of Appeals for the

Federal Circuit to review the Board's final decision in your appeal if the

court has jurisdiction. See 5 U.S.C. 7703(a)(1). You must submit your request

to the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 30 calendar days

after receipt of this order by your representative, if you have one, or

receipt by you personally, whichever receipt occurs first. See 5 U.S.C.

7703(b)(1).