FSGB: “Automatism” Defense Against Notoriously Disgraceful Conduct Charge Fails

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Via FSGB Case No. 2020031 February 19, 2021
HeldThe Department proved by preponderant evidence that the charged employee committed notoriously disgraceful conduct by engaging in non consensual sexual contact with a colleague in a public Embassy space; the misconduct was not caused by a neurological condition (automatism); there was a nexus between the charged misconduct and the efficiency of the Service; and that the penalty of separation is reasonable.Case
SummaryThe Department charged an unaccompanied married employee with notoriously disgraceful conduct after he went to a pool party at an overseas post, had a few alcoholic drinks, and, after some physical contact with a married colleague who was intoxicated, touched her near her genital area without her consent. The incident was videotaped by security cameras and was observed by employees who were at the pool. The Department argued that intent is not an element of the charged misconduct but should be considered as a mitigating or aggravating factor when the penalty is determined. The agency presented the testimony of an expert witness who opined that the charged employee did not suffer from an automatism at the time of the misconduct. The agency contended that the undisputed evidence proves notoriously disgraceful conduct. The Department argued that separation was the only appropriate penalty for the egregious misconduct, given a fair consideration of the mitigating and aggravating factors and a review of comparator cases.
The charged employee presented a report from an expert witness who opined that at the time of the misconduct, the employee was experiencing a neurological event, called an automatism,which prevented him from having any awareness of, or control over, his actions. The charged employee contended that he is not culpable for the charged misconduct because intent to commit the conduct is a necessary element of the charge.The employee also argued that the Deciding Official did not properly consider mitigating circumstances and the penalty was unreasonable after a review of comparator cases.
The Grievance Board considered the undisputed evidence of the incident that was recorded on the videotape and not contested by the charged employee. The Board further reviewed the testimony of the competing experts and concluded that the opinion of the charged employee’s expert witness was not sound because it was not consistent with the accounts of the witnesses, including the charged employee, and it did not derive from a persuasive differential diagnosis. The Board concluded that the charged employee’s expert witness speculated repeatedly on the possible causes for an automatism,which undermined the plausibility of his ultimate opinion. The Board further found that because intent was clearly established, the issue of whether intent is an element of the charge did not need to be decided. The Board concluded that there was a nexus between the misconduct and the efficiency of the Service because the incident was videotaped, witnessed by several employees, resulted in an almost immediate curtailment and a suspension of the charged employee’s security clearance. Lastly, the Board found that the penalty was within the zone of reasonableness after an appropriate review of mitigating factors and case comparators.
The Board finds that Department “has established by preponderant evidence that the charged employee committed the specified charge of notoriously disgraceful conduct, the misconduct was not the product of an automatism; there is a nexus between the misconduct and the efficiency of the Service; and the penalty of separation is reasonable.”
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