Gamboa v. Department of Treasury
| Decision Date | 13 January 1995 |
| Docket Number | No. 94-3129,94-3129 |
| Citation | 47 F.3d 1182 |
| Parties | NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. John M. GAMBOA, Petitioner, v. DEPARTMENT OF the TREASURY, Respondent. |
| Court | U.S. Court of Appeals — Federal Circuit |
Before NEWMAN, MAYER, and PLAGER, Circuit Judges.
This is a sexual harassment case. On December 23, 1992, the Department of the Treasury's Bureau of Alcohol, Tobacco, and Firearms (Agency) proposed removing John M. Gamboa from his position as a GM-1811-14 Supervisory Criminal Investigator. The Agency charged Gamboa with sexual harassment as defined by Equal Employment Opportunity Commission (EEOC) Guidelines, 29 C.F.R. Sec. 1604.11(a) (1992), a violation of both regulation and statute. 1 The Agency's charge was based on 21 specifications of misconduct toward fellow employee Sandra Hernandez over a period of almost 2 1/2 years, beginning on March 4, 1990, the very day on which Hernandez was offered a job with the Agency, and extending until October 1992.
The Agency gave Gamboa the procedure afforded him by statute. See 5 U.S.C. Sec. 7513(b) (1988). Gamboa denied each specification of the charge. The Agency nonetheless decided to remove Gamboa effective March 30, 1993. Gamboa appealed to the Merit Systems Protection Board (MSPB or Board). The Administrative Judge (AJ) in a lengthy decision upheld the Agency, Gamboa v. Department of the Treasury, Dkt. No. CH-0752-93-0348-I-1 (MSPB Oct. 25, 1993) (Decision). Because Gamboa did not petition for rehearing by the Board, and the Board did not reopen the case on its own motion, the initial decision became the final decision on November 29, 1993. Gamboa has timely appealed to this court. We reverse.
The Board will sustain an agency decision to remove an employee, such as Gamboa, from a protected position in the competitive service only if the decision is supported by a preponderance of the evidence. 5 U.S.C. Sec. 7701(c)(1)(B) (1988). 2 The Board's decision may be appealed to this court. On appeal here, the Board's decision is upheld if the factual determinations are supported by substantial evidence in the record, and if the decision is not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. Sec. 7703(c) (1988). See Jacobs v. Department of Justice, 35 F.3d 1543 (Fed. Cir. 1994); Dixon v. Department of Transp., 8 F.3d 798 (Fed. Cir. 1993).
Appellate courts do not determine credibility, nor do they reweigh evidence. In reviewing the MSPB under the substantial evidence standard of review, we must affirm a decision that is "supported by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938) (citations omitted). See also Jacobs, 35 F.3d at 1546; Dixon, 8 F.3d at 804. At the same time, we are not free simply to view one side of the argument. As the Supreme Court has admonished, "[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). Accord Jacobs, 35 F.3d at 1546-47 ( Universal Camera); Dixon, 8 F.3d at 804 (same); Spurlock v. Department of Justice, 894 F.2d 1328, 1330 (Fed. Cir. 1990) (same).
As Universal Camera and its progeny make clear, whether evidence is substantial is not an abstract question but a contextual one. This is particularly true of sexual harassment cases, in which the substantive law requires an inquiry into the context of the allegations. Harris v. Forklift Sys., Inc., 114 S.Ct. 367, 371 (1993); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). "In determining whether alleged conduct constitutes sexual harassment, the Commission [the EEOC] will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred." 29 C.F.R. Sec. 1604.11(b) (1994).
The jurisprudence concerning sexual harassment has been developed largely through cases brought by plaintiffs under Title VII of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. Sec. 2000e et seq. In contrast, this case, like most personnel cases before this court, is brought in a defensive posture: a government employee appeals an adverse agency action based on the agency's determination that the employee acted in violation of statute or regulation. It is well-established that sexual harassment, as defined by 29 C.F.R. Sec. 1604.11(a) (1994), entails the jurisprudence developed under Title VII. Meritor, 477 U.S. at 65; King v. Hillen, 21 F.3d 1572, 1579-80 (Fed. Cir. 1994); Carosella v. United States Postal Serv., 816 F.2d 638, 640 (Fed. Cir. 1987).
Given the nature of the offense, it is often the case that sexual harassment is unwitnessed, and no good evidence exists to support the word of one party over the other. When fresh complaint is made, the absence of either physical corroboration or witnesses is not hard to understand. When a long-standing pattern of conduct is alleged, however, and corroborating evidence is weak or non-existent, then the circumstances of the allegations must bulk large in the consideration of the adjudicator.
For these reasons, and with due regard to the standard of review mandated by Congress, this court is careful to consider the context in which harassment is alleged to have occurred. See, e.g., King, 21 F.3d 1572; Grubka v. Department of the Treasury, 858 F.2d 1570 (Fed. Cir. 1989); Carosella, 816 F.2d 638; Downes v. Federal Aviation Admin., 775 F.2d 288 (Fed. Cir. 1985), disapproved on other grounds, Harris, 114 S. Ct. at 370-71; Jackson v. Veterans Admin., 768 F.2d 1325 (Fed. Cir. 1985).
Hernandez's complaint, based as it is on a long-standing course of conduct, might be expected to stand on clear-cut allegations of misbehavior. Instead, those specifications that depend on testimony other than that of complainant Hernandez and Diane Klipfel, who was supervisor of Hernandez and Gamboa during much of the time in question, tend to be ambiguous and equivocal. Specifications 1 and 5 illustrate the point. Specification 1 states:
The appellant repeatedly asked SA Hernandez to take a weekend trip with him to Michigan, where the appellant and his friend, Jeff Wahl, had a boat. When SA Hernandez questioned the appellant about accommodations on the boat, the appellant told SA Hernandez that the trip would be just like working: the two of them would sleep in the same cabin, pretending to have an affair. 3
Decision at 4. Gamboa denied that he had asked Hernandez to spend a weekend together with him on a boat. In sustaining the specification, the AJ relied on hearsay testimony from David Fermaint, Robert Miller, and Klipfel, each of whom testified that Hernandez had told them of Gamboa's invitation shortly after it was made -- each of these witnesses testified that Hernandez thought Gamboa "was going to set up a situation where they would go on the boat and [Wahl] would take pictures." Id. at 6 (); see also id. at 15 ().
Specification 5 states:
The appellant obtained copies of pictures of SA Hernandez and other female agents on assignment dressed as prostitutes. The appellant told SA Hernandez that he had showed a picture of her in the "hooker" outfit to Mr. Wahl and, after seeing the picture, Mr. Wahl expressed an interest in helping SA Hernandez obtain modeling contracts.
Id. at 18. Gamboa also denied specification 5. The AJ found that Hernandez and Wahl were acquainted, and that Hernandez had visited Wahl to discuss modeling. 4 The AJ found that the facts alleged in the specification occurred, but noted that
the specification does not allege any conduct that is sexual in nature. SA Hernandez admitted she was interested in modeling and she pursued the matter with Mr. Wahl. It appears, therefore, that the appellant's actions were not unwelcome by SA Hernandez. Because this specification could not, therefore, support an allegation of sexual harassment, it is not considered further.
Id. at 21 (emphasis supplied). The AJ treated arrangements to model both as harassment of Hernandez (specification 1) and as welcomed by Hernandez (specification 5). Either Hernandez wanted to model or she did not. Either possibility is plausible, but the possibilities are mutually exclusive.
Specification 8 states:
In March of 1992, the appellant behaved in a manner that would lead one to believe that he was attempting to "set" SA Hernandez up with a male friend of his. The appellant told SA Hernandez that John Boyle wanted to meet her because he was a very close friend of ASAC Adamcik. Mr. Boyle and the appellant picked up SA Hernandez and took her to lunch at a Mexican restaurant. After SA Hernandez returned to the office, Mr. Boyle called her to ask for a date. When SA Hernandez refused, Mr. Boyle told her that if she dated him and had sex with him, he would make sure that ASAC Adamcik promoted her to grade 13.
Id. at 23. The AJ refused to hold Gamboa responsible for Boyle's behavior. Id. Nonetheless, on the basis of Klipfel's and Fermaint's hearsay testimony that Hernandez told them that Gamboa was pressuring her to date Boyle, the AJ sustained the part of the specification relating to Gamboa's conduct. Id. at 24. We question whether the specification as sustained -- that Gamboa went to lunch with Hernandez and Boyle, in the interest...
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