Legal Briefs: When is mismanagement "gross"?

Every Friday on GovExec.com, Legal Briefs reviews several cases that involve, or provide valuable lessons to, federal managers. We report on the decisions of a wide range of review panels, including the Merit Systems Protection Board, the Federal Labor Relations Authority and federal courts.

John E. White worked as a supervisory education services specialist at Nellis Air Force Base in Nevada. In that role, White worked with colleges and universities that provided on-base education. In 1992, the Air Force introduced new quality standards for schools contracting with Air Force bases for educational services, known as the Bright Flag Quality Education System (QES). At a May 4, 1992, meeting with members of the Tactical Air Command, White disagreed with QES and its implementation, criticizing the lack of input from schools and some of the quality standards included in QES.

One month later, White was detailed to a lower-graded position because his supervisor did not believe White would support QES. White filed a complaint with the Office of Special Counsel, claiming the detail was a violation of the Whistleblower Protection Act. White took his claim to the Merit Systems Protection Board, where an administrative judge ruled that White's disclosures were not protected by the WPA. White disagreed, claiming he and other employees believed his disclosures exposed "gross mismanagement." MSPB reversed the judge's ruling.

But the Office of Personnel Management appealed the decision to the federal circuit court of appeals. The court said the issue at hand was whether or not White had a reasonable belief that he had discovered gross mismanagement. MSPB argued that reasonable belief was satisfied if an employee showed "that he was familiar with the alleged improper activities and that his belief was shared by other similarly situated employees."

The court disagreed, saying that without an independent review by the board, that definition was too subjective, even if other employees agreed. Rather, the court decided, the proper test is if a disinterested observer with knowledge of the essential facts could reasonably conclude that the actions constituted gross mismanagement.

The court reversed MSPB's decision and remanded the case for further proceedings consistent with the opinion.

Lesson: "Gross mismanagement" may be in the eye of the beholder.

Janice R. Lachance, Director, Office of Personnel Management, v. John E. White and Merit Systems Protection Board (98-3249), Federal Circuit Court, May 14, 1999.

Low-Occupancy Vehicles

An auditor with the Naval Audit Service in Cherry Hill, N.J., was sent on a two-week business trip to Virginia Beach, Va. The agency authorized the auditor to travel as a passenger in another employee's car. But the auditor decided to take her own car in case she had to go home to attend to urgent personal matters.

The auditor's supervisors told her she would be reimbursed for her travel expenses, but the agency's authorized travel officials did not. When the auditor filed for reimbursement, the agency rejected her claim because she had not been officially authorized to use her own car. The General Services Board of Contract Appeals, which decides travel disputes, ruled in favor of the agency, saying the auditor should have followed her travel authorization.

Lesson: If your agency tells you to car pool, share a ride-no matter what your supervisor says.

In the Matter of Gerry M. Hopkins (14850-TRAV), General Services Board of Contract Appeals, June 2, 1999.

Inconsistent Discipline

Dawonna J. Carriker, an automation clerk at the Postal Service's Dayton, Ohio, processing and distribution center, received a letter of warning in October 1996 for failing to provide a written statement to the agency's inspection service on her knowledge of a person being investigated.

Carriker contended that she was discriminated against on the basis of race because several other employees at the plant were not disciplined despite the fact that they, too, did not cooperate with investigators. An administrative judge agreed with her.

The final agency decision on the matter, however, rejected the administrative judge's conclusion, saying the other supervisors were not in a comparable situation to Carriker's, so their treatment could not be used as evidence of discrimination.

But then the case went to the Equal Employment Opportunity Commission. The EEOC reversed the Postal Service's decision, ruling that Carriker and the other employees were in the same situation. USPS was ordered to return Carriker to her former position with seniority and and to award her back pay and attorney's fees.

Lesson: When it comes to discipline, consistency is critical.

Carriker, Dawonna J. vs. USPS (01983050), Equal Employment Opportunity Commission, April 30, 1999.