In Metz v. Department of the Treasury [86 FMSR 7001], the Federal Circuit Court ruled that in order to determine if the words constitute a threat, the Merit Systems Protection Board (MSPB) must use the connotation that a reasonable person would give to the words. The Court also listed the factors to consider in making a determination of a threat:

1) listener’s reactions;
2) listener’s apprehension of harm;
3) speaker’s intent;
4) conditional nature of the statements; and
5) attendant circumstances.
 

SUBJECT:  Threatening Conduct

1.  Threatening conduct and work place disruption are issues taken very seriously by the Department of Defense, Army, and the MEDCOM.  This memorandum will serve to remind addressees of two items; (1) that final arbitrators' decisions under negotiated grievance/arbitration procedures on matters that could have been appealed to the Merit Systems Protection Board (MSPB) may be subject to review by the MSPB, and (2) of MSPB case law dealing with adverse actions taken for threatening conduct.

2.  In a recent case, the MSPB once again upheld an agency removal action taken for engaging in threatening conduct and making statements that resulted in anxiety and disruption in the workplace.  As reported in the Federal Merit Systems Reporter (101 FMSR 5226; Sands v. Department of Labor, Docket Number CB-7121-00-0023-V-I, 1 May 01), the MSPB upheld the agency's action and the arbitrator's decision that the action was supported by a preponderance of the evidence and that the penalty was reasonable.  The employee, a GS-06 Office Management Assistant, was removed for 1) engaging in threatening conduct when three co-workers allegedly heard her threaten to kill two supervisors, and 2) making statements that resulted in anxiety and disruption in the workplace.  The appellant made several statements to her first and second level supervisors that she was "going to get a gun and blow both of them away". 

3.  The lead MSPB/court case regarding threatening conduct is Metz v. Treasury (780 F.2d 1001 (Fed. Cir. 1986)).  The Federal Court of appeals for the Federal Circuit directed the MSPB to consider five factors in deciding whether an employees engaged in threatening conduct:

    a.  The listener's reaction;

    b.  The listener's apprehension of harm;

    c.  The speaker's intent;

    d.  Any conditional nature of the statements; and

    e.  The attendant circumstances.

4.  The following CyberFEDS guidance/case citations will also be useful in addressing the issue of threats in the work place.
"These key-point summaries cannot reflect every fact or point of law contained within a source document. For the full text, follow the link to the cited source.
In determining whether a threat has been made the following factors must be considered: 1) the listener's reactions; 2) the listener's apprehension of harm; 3) the speaker's intent; 4) any conditional nature of the statements; 5) the attendant circumstances. Metz v. Department of the Treasury, 780 F.2d 1001 (Fed. Cir. 1986) 
Overtly aggressive physical behavior can constitute a threat. Shaw v. Department of the Air Force, 80 M.S.P.R. 98 (1998). 
In determining whether words should be construed as constituting a threat they should be interpreted with "the connotation that a reasonable person would give them." Meehan v. U.S. Postal Service, 718 F.2d 1069 (Fed. Cir. 1983). 
An agency is not required to tolerate threatening statements or behavior as a reasonable accommodation. Battle v. Department of Transportation, 63 M.S.P.R. 403 (1994). 
The fact that a threatening statement was conditional will not, of itself, prevent the determination that a threat occurred. Greenough v. Department of the Army, 73 M.S.P.R. 648 (1997). 
It is not necessary to prove that an employee actually intended to carry through on a threat. Greenough v. Department of the Army, 73 M.S.P.R. 648 (1997). 
A combination of indirect statements and actions (e.g., visiting a supervisor's home late at night) can constitute a threat. Kilgour v. Department of Veterans Affairs, 67 M.S.P.R. 544 (1995). 
Disrespectful or insolent statements do not necessarily constitute threats, but may provide the basis for adverse action under other charges. Carson v. Department of Veterans Affairs, 33 M.S.P.R. 666 (1987). 
Rumors or fears based on rumors do not provide a sufficient basis for finding that a threat has been made. Metz v. Department of the Treasury, 780 F.2d 1001 (Fed. Cir. 1986). 
Threatening statements relayed to a supervisor through a third party may constitute a threat. Sims v. Department of Defense, 58 M.S.P.R. 131 (1993). 
< Threats > directed at a supervisor adversely affect the efficiency of agency operations. Metz v. Department of the Treasury, 780 F.2d 1001 (Fed. Cir. 1986). 
< Threats directed at co-workers adversely affect the efficiency of agency operations. Chatham v. Department of the Army, 73 M.S.P.R. 582 (1997). 
Potentially threatening statements made in the context of an EAP counseling session may not provide the basis for a threat charge. Powell v. Department of Justice, 73 M.S.P.R. 29 (1997); Larry v. Department of Justice, 76 M.S.P.R. 348 (1997). 
A charge of making statements that caused anxiety and disruption in the workplace did not require the agency to prove the employee's intent to threaten. McCarty v. Department of the Navy, 67 M.S.P.R. 177 (1995). 
Removal for causing anxiety and disruption in the workplace through statements promotes the efficiency of the service. McCarty v. Department of the Navy, 67 M.S.P.R. 177 (1995).

Showing a supervisor a gun and threatening to kill him provided a basis for removal. McGowan v. Department of Veterans Affairs, 30 M.S.P.R. 221 (1986), 86 FMSR 5080. 
The statement "If I had a gun right now, I'd start shooting" did not constitute a threat. Castner v. U.S. Postal Service, 77 M.S.P.R. 393 (1998), 98 FMSR 5045. 
A statement concerning the possible burning of a supervisor's home constituted a threat. Murphy v. Department of Health and Human Services, 34 M.S.P.R. 534 (1987), 87 FMSR 5505. 
An employee's statement that he sometimes had "evil thoughts" and that he hoped he wouldn't strap a bomb to himself and kill himself and co-workers constituted a threat. Coleman v. Department of the Air Force, 66 M.S.P.R. 498 (1995), 95 FMSR 5072. 
Pointing a fake gun at another employee constituted a threat. Sierra v. Department of the Army, 5 M.S.P.R. 523 (1981), 81 FMSR 5303."
5.   Our point of contact is, Civilian Personnel Advisory Center, at DSN 367-2909.

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Composed By: The Civilian Personnel Advisory Center, Fort McPherson, GA

-  The central case is still the Federal Circuit's Metz v. Treasury, 780 F.2d 1001 (Fed. Cir. 1986). In Metz, the court specified that it was instructing the Board on how to analyze a threat case. It stated that the Board must give the words used the interpretation that would be given to them by a reasonable person, and that in weighing the evidence, the Board must consider: 1) The listener's reactions; 2) the listener's apprehension of harm; 3) the speaker's intent; 4) any conditional nature of the statements at issue; and 5) the attendant circumstances. Objective evidence must be given "heavy weight," although the Board was not directed to rely on it alone. 

The threat need not have been made to the threatened individual. See for instance, Battle v. DOT, 63 M.S.P.R. 403 (1994). Listener reaction is judged primarily by what persons who heard the statement actually did. Contrast Battle where listener reaction supported the charge, with Hutson v. Interior, 67 M.S.P.R. 432 (1995), where several specifications were not supported on this basis. A threat voiced to a mental health practitioner may not be actionable, even if the counselor found the threats serious and credible enough to raise a legal duty to protect. See Powell v. Justice, 73 M.S.P.R. 29 (1997) and Larry v. Justice, 76 M.S.P.R. 348 (1997). It is not clear whether the Board would have reached a different result in those cases if the counselors had called the police. Otherwise, however, the intent to carry out a threat is distinguishable from the intent to make one. See Greenough v. Army, 73 M.S.P.R. 648 (1997). 

Attendant circumstances are background facts that provide context that may help determine whether a particular statement was "threatening." Mr. Battle’s history of violent behavior was an aggravating attendant circumstance. On the other hand, the appellant in Castner v. USPS, 77 M.S.P.R. 393 (1998), had a history of outbursts which were "anti-social but non-violent," and the Board concluded his most recent statement was simply more of the same.
 

a. The listener's reaction; 

· In determining whether a threat has been made the following factors must be considered: 1) the listener's reactions; 2) the listener's apprehension of harm; 3) the speaker's intent; 4) any conditional nature of the statements; 5) the attendant circumstances. Metz v. Department of the Treasury, 780 F.2d 1001 (Fed. Cir. 1986), 86 FMSR 7001

· Overtly aggressive physical behavior can constitute a threat. Shaw v. Department of the Air Force, 80 M.S.P.R. 98 (1998), 98 FMSR 5373

· In determining whether words should be construed as constituting a threat, they should be interpreted with "the connotation that a reasonable person would give them." Meehan v. U.S. Postal Service, 718 F.2d 1069 (Fed. Cir. 1983), 83 FMSR 7069

· An agency is not required to tolerate threatening statements or behavior as a reasonable accommodation. Battle v. Department of Transportation, 63 M.S.P.R. 403 (1994), 94 FMSR 5365

· The fact that a threatening statement was conditional will not, of itself, prevent the determination that a threat occurred. Greenough v. Department of the Army, 73 M.S.P.R. 648 (1997), 97 FMSR 5124 . 

· It is not necessary to prove that an employee actually intended to carry through on a threat. Greenough v. Department of the Army, 73 M.S.P.R. 648 (1997), 97 FMSR 5124

· A combination of indirect statements and actions (e.g., visiting a supervisor's home late at night) can constitute a threat. Kilgour v. Department of Veterans Affairs, 67 M.S.P.R. 544 (1995), 95 FMSR 5191 . 

· Disrespectful or insolent statements do not necessarily constitute a threat, but may provide the basis for adverse action under other charges. Carson v. Department of Veterans Affairs, 33 M.S.P.R. 666 (1987), 87 FMSR 5378

· Rumors or fears based on rumors do not provide a sufficient basis for finding that a threat has been made. Metz v. Department of the Treasury, 780 F.2d 1001 (Fed. Cir. 1986), 86 FMSR 7001

· Threatening statements relayed to a supervisor through a third party may constitute a threat. Sims v. Department of Defense, 58 M.S.P.R. 131 (1993), 93 FMSR 5240

· Threats directed at a supervisor adversely affect the efficiency of agency operations. Metz v. Department of the Treasury, 780 F.2d 1001 (Fed. Cir. 1986), 86 FMSR 7001

· Threats directed at co-workers adversely affect the efficiency of agency operations. Chatham v. Department of the Army, 73 M.S.P.R. 582 (1997), 97 FMSR 5082

· Potentially threatening statements made in the context of an EAP counseling session may not provide the basis for a threat charge. Powell v. Department of Justice, 73 M.S.P.R. 29 (1997), 97 FMSR 5011 ; Larry v. Department of Justice, 76 M.S.P.R. 348 (1997), 97 FMSR 5369

· A charge of making statements that caused anxiety and disruption in the workplace did not require the agency to prove the employee's intent to threaten. McCarty v. Department of the Navy, 67 M.S.P.R. 177 (1995), 95 FMSR 5122

· Removal for causing anxiety and disruption in the workplace through statements promotes the efficiency of the service. McCarty v. Department of the Navy, 67 M.S.P.R. 177 (1995), 95 FMSR 5122

· Showing a supervisor a gun and threatening to kill him provided a basis for removal. McGowan v. Department of Veterans Affairs, 30 M.S.P.R. 221 (1986), 86 FMSR 5080

· The statement "If I had a gun right now, I'd start shooting" did not constitute a threat. Castner v. U.S. Postal Service, 77 M.S.P.R. 393 (1998), 98 FMSR 5045

· A statement concerning the possible burning of a supervisor's home constituted a threat. Murphy v. Department of Health and Human Services, 34 M.S.P.R. 534 (1987), 87 FMSR 5505

· An employee's statement that he sometimes had "evil thoughts" and that he hoped he wouldn't strap a bomb to himself and kill himself and co-workers constituted a threat. Coleman v. Department of the Air Force, 66 M.S.P.R. 498 (1995), 95 FMSR 5072

· Pointing a fake gun at another employee constituted a threat. Sierra v. Department of the Army, 5 M.S.P.R. 523 (1981), 81 FMSR 5303

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Composed By:  Civilian Human Resources Agency Europe Region