Second DOJ Employee Fired Over Abusive Treatment of Federal Officers

This week, Elizabeth Baxter, an intern with the department’s environmental division, became the second Justice Department employee to be fired by Attorney General Pam Bondi for abusive conduct toward federal officers. Baxter shouted profanities and flipped off a member of the National Guard in Washington, D.C., on her way to work. The termination raises legitimate free speech issues, but Baxter may have crossed the line by recounting the abuse at work.

We recently addressed the effort to charge Sean Charles Dunn, another DOJ paralegal, with a felony over assaulting a Customs and Border Protection agent with a sandwich. A D.C. grand jury refused to issue an indictment and he will now face a misdemeanor after being fired by the Justice Department.

Baxter is different in that she is not accused of any assault. According to the New York Post, after arriving at a DOJ building on the morning of August 18, Baxter bragged to a security guard about how she had just made the gesture at the Metro Center Metro Stop. She also recounted how she told the guardsman, “F–k the National Guard.”

The protest itself would seem protected speech. There is no indication that Baxter referenced her position at the Justice Department when she engaged in this profane protest.  This was not done during work hours.

DOJ guidelines affirm that employees may:

–  Express opinions on political subjects and candidates.

–  Campaign for or against a referendum, constitutional amendment or ordinance.

–  Participate in civic, professional and other similar activities.

–  Sign a political petition.

–  Display signs, stickers, badges or buttons for candidates for partisan political office except when on duty.

However, those same guidelines state that employees may not:

 “Participate in political activities (to include wearing political buttons) while on duty;  while wearing a uniform, badge or insignia of office; while in a government occupied  office or building; or while using a government owned or leased vehicle.”

Baxter’s desire to repeat the protest to a security officer at the DOJ moved the matter into the workplace. Not only did security footage capture her flipping off the National Guardsman and exclaiming, “F–k you!” but she is also seen demonstrating to a department security guard how she held up her middle finger. She boasted to the security guard that she hated the National Guard and that she told them to “F–k off!”

The conduct inside the Justice Department could be cited as sufficient grounds for termination. The repetition of the protest to the DOJ security could be seen as disrespecting their positions and interjecting her political views into the workplace.

Baxter could, within 30 days, file with the Merit Systems Protection Board to challenge the action. I expect that she is likely to do so.  She can claim that she was not insulting the security officer or making a political statement in the building’s lobby. However, she elected to repeat the political expression inside the federal building to at least one other federal employee during office hours. As such, she destroyed much of the constitutional protection afforded to her earlier statements and demonstration.