Grubka v. Department of Treasury, 88-3018

• Decision Date: 11 October 1988
• Docket Number: No. 88-3018,88-3018
• Parties: 48 Fair Empl.Prac.Cas. 48, 48 Empl. Prac. Dec. P 38,546, 57 USLW 2303 James H. GRUBKA, Petitioner, v. The DEPARTMENT OF THE TREASURY, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1570

858 F.2d 1570

48 Fair Empl.Prac.Cas. 48, 48 Empl. Prac.

Dec. P 38,546,

57 USLW 2303

James H. GRUBKA, Petitioner, v. The DEPARTMENT OF THE TREASURY, Respondent.

No. 88-3018.

United States Court of Appeals Federal Circuit.

Oct. 11, 1988.

Rehearing Denied Jan. 27, 1989.

Philip B. Abramowitz, Robshaw, Abramowitz & Tobia, P.C., Buffalo, N.Y., argued for petitioner. With him on the brief was C. Donald O'Connor.

Paul D. Langer, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for respondent. With him on the brief were John R. Bolton, Asst. Atty. Gen., David M. Cohen, Director and Robert A. Reutershan, Asst. Director. Also on the brief was Eileen Collins, Sr. Atty., Office of Regional Counsel, I.R.S., New York City, of counsel.

Before SMITH and NIES, Circuit Judges, SKELTON, Senior Circuit Judge.

PER CURIAM.

James H. Grubka (petitioner or Grubka) appeals from the decision of the Merit Systems Protection Board (MSPB or board) which approved the decision of the Internal Revenue Service (IRS) to demote him from his managerial position as Chief, Quality Review Staff, GM-14, with an annual salary of $52,253, to the position of Appeals Officer, GS-12, step 7, at an annual salary of $39,083, in the Buffalo, New York, Appeals Office, effective April 26, 1987. He was demoted (1) for engaging in alleged acts of misconduct in kissing and embracing two female employees at a Halloween party organized and staged by the employees at a hotel after hours away from their workplace and for their entertainment, (2) for making a false statement in connection with the incidents, (3) for failing to satisfy his managerial responsibilities to report his alleged improper conduct and that of his superior to higher authority, and (4) for failing to show and develop Equal Employment Opportunity (EEO) principles by his conduct and activities. We reverse and remand with instructions.

The facts show that the IRS was conducting a training program relating to taxes for 39 new revenue agents. The instruction classes were held in the Federal Building in Buffalo and were attended by the trainees, the instructors and supervisors. During the progress of the program one of the trainees suggested that they have a Halloween party for the entertainment of the trainees, the instructors and some of the supervisors. The idea was adopted by the trainees and one of them named Harriet Novak was selected by them to organize the event and make arrangements for the party. She spent a great deal of time outside of the classes making the necessary plans and arrangements for the entertainment.

The party was held after working hours from five until eleven p.m. away from the workplace and at the Hilton Hotel in Buffalo. Some of the participants moved to a nearby bar/restaurant later on. Grubka and his supervisor, Dave Goodwin, arrived at the party together at about 5:30 p.m. They were wearing Halloween masks in keeping with the theme of the party. Grubka left the party at about 9:15 p.m.

The party was very informal and casual, and as it progressed those present became more and more relaxed and unconstrained. Intoxicating liquor was being served and the prevailing atmosphere was loose and easy going, as could be expected at a Halloween party. About an hour after Grubka arrived at the party, he was standing near trainees Harriet Novak and Brenda Saunders when Nicholas Zona, one of the instructors, appeared with a camera and asked to take their picture. A bystander, Craig Sylvester, said "Kiss him on the cheek," and Novak put both of her arms around Grubka's neck and kissed him on the right cheek. The picture is in evidence. It shows Novak kissing Grubka's right cheek with both of her arms clasped around his neck and Grubka standing with his left side toward the camera with his left hand in his pants pocket and facing the camera. Based on these facts, IRS charged Grubka with misconduct as follows:

Reason I: You engaged in conduct unbecoming an employee of your managerial position as Chief, Quality Review Staff, Examination Division.

Specification 4: On October 30, 1986, while attending an after duty hours party with other Examination Division employees held at the Hilton Hotel, Buffalo, N.Y., you embraced female Revenue Agent Harriet Novak with your hand on her waist.

The administrative judge (AJ) sustained this charge. In our opinion, his decision was contrary to the evidence. The facts related above show that Novak initiated the kiss and voluntarily put both of her arms around Grubka's neck and then kissed him on the cheek. Grubka did nothing but stand there with his hand in his pocket. The charge is frivolous, and the decision of the AJ is not supported by substantial evidence and is set aside. 5 U.S.C. Sec. 7703(c).

Grubka was also charged with misconduct in kissing another female employee at the party. That charge was as follows:

Reason I: You engaged in conduct unbecoming an employee of your managerial position as Chief, Quality Review Staff, Examination Division.

Specification 1: On October 30, 1986, while attending an after duty hours party with other Examination Division employees held at the Hilton Hotel, Buffalo, N.Y., you embraced and kissed on the mouth female Revenue Agent Barbara Wood.

The AJ sustained this charge. We do not agree. The facts surrounding this kissing episode were substantially as follows. Nicholas Zona was still taking pictures and he saw trainee Barbara Wood standing near Grubka and he asked them if he could take their picture. Whereupon Wood drew close to Grubka and a kiss occurred as a picture was taken. Grubka testified that he did not initiate the kiss and that "Barbara (Wood) was close to me for a picture and pulled me close to her and kissed me." Wood testified that Grubka kissed her. The picture is in evidence and clearly shows that Wood raised her head and lips upward for the kiss as she was shorter in stature than Grubka. The AJ did not make a finding as to who initiated the kiss. The picture does not show any embrace of Wood by Grubka. In any event the entire scene was posed. Zona, who took the picture said it was not a candid picture, and Wood said it was posed. We conclude that the kiss was innocuous and the charge was frivolous. The decision of the AJ sustaining the charge is not supported by substantial evidence and is set aside. 5 U.S.C. Sec. 7703(c).

The agency preferred yet another charge of misconduct against Grubka. It stated:

Reason I: You engaged in conduct unbecoming an employee of your managerial position as Chief, Quality Review Staff, Examination Division.

Specification 3: On October 30, 1986, while attending an after duty hours party with other Examination Division employees held at the Hilton Hotel, Buffalo, N.Y., you approached female Revenue Agent Harriet Novak in a stairwell outside the room in which the party was held, leaned against her and kissed her on the mouth.

The facts shown by the record with regard to this incident were generally as follows. Novak was staying at the hotel where the trainees were having their party. Her room was one floor above the party floor. She left the party and went to her room to freshen up and did so by way of the stairwell instead of using the elevator as it was closer. As she was returning down the stairs she met Grubka who was going up the stairs. She said he leaned against her, kissed her, and was sexually aroused. He signed a statement that he did not lean against her, did not kiss her, but only smelled her perfume, and was not sexually aroused. The AJ found Novak's statement credible and that of Grubka incredible and sustained the charge. We conclude that he erred in doing so.

At oral argument Grubka's counsel stated that Grubka and Novak were together only "a couple of seconds." Counsel for the Government did not dispute this and admitted that they were together for "a few moments." There was no evidence of any passionate embrace nor of any "love making." Even if there were a kiss, it was obviously a hurried one as there was no time for anything else. Novak's statement that Grubka was sexually aroused is not supported by any other evidence and appears to be a figment of her imagination. Her statement in this regard must be considered along with her other sex-oriented statements and actions revealed during the investigation which relate to her credibility. For instance, she stated that on one occasion before the date of the party she was sitting at a table with Grubka and several other friends when during their conversation Grubka put his hand on her knee. She considered this to be a sexual overture. She told various trainees that she thought Grubka was interested in her. She admitted that she was flirting with him. She said, "In my opinion of flirting, yes, I was flirting with Jim Grubka." Others, including Thomas E. Ryan, an instructor, testified that she was flirting with Grubka. She told one Barbara Ricotta that Grubka had asked her to spend the night with him. We have already described in our discussion of Specification 4 how she put her arms around his neck and kissed him on the cheek. On one occasion during a conversation between her and Grubka he said something about having his shoes shined after playing basketball and she interpreted this remark to mean that he was going to spend the night with her at the hotel. After the Halloween party was over, she, as a hotel guest, had his car parking ticket validated to avoid his having to pay a parking ticket fee, and then walked with him to his car. She said that on reaching the car he tried to pull her into the car and kissed her. No charge was filed against Grubka on this incident, and nowhere was he charged with sexual harassment. Still later that evening she was at the restaurant with supervisor Dave Goodwin and she said that he wanted to sleep with her. Then there was the stairwell incident where she speculated that Grubka was sexually aroused.

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