Jackson v. Veterans Admin., 84-1566

• Decision Date: 25 July 1985
• Docket Number: No. 84-1566,84-1566
• Citation: 768 F.2d 1325
• Parties: 39 Fair Empl.Prac.Cas. 100 Riley E. JACKSON, Petitioner, v. VETERANS ADMINISTRATION, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 1325

768 F.2d 1325

39 Fair Empl.Prac.Cas. 100

Riley E. JACKSON, Petitioner, v. VETERANS ADMINISTRATION, Respondent.

Appeal No. 84-1566.

United States Court of Appeals, Federal Circuit.

July 25, 1985.

Joseph A. Kiely, Conklin & Adler, Ltd., Denver, Colo., argued for petitioner.

Denise Butler Harty, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for respondent. With her on brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, M. Susan Burnett, Asst. Director and Beacham O. Brooker, Jr.; Douglas D. Doane, Dist. Counsel, Veterans Admin., of counsel.

Before FRIEDMAN, NIES and NEWMAN, Circuit Judges.

NIES, Circuit Judge.

The final decision of the Merit Systems Protection Board (MSPB or board), reported at 21 M.S.P.R. 63 (1984), affirming the removal of petitioner Riley E. Jackson from his position as Animal Caretaker Foreman with the Veterans Administration Medical Center in Denver, Colorado, is affirmed-in-part, reversed-in-part, vacated-in-part and remanded for determination of a lesser penalty.

Background

Based on five separate incidents of misconduct, Mr. Jackson was removed from his supervisory position with the Veterans Administration for sexual harassment of a subordinate. Following a hearing before the presiding official designated to hear the appeal, the presiding official reversed Mr. Jackson's removal. The presiding official heard testimony from a number of witnesses relevant to each of five alleged incidents of misconduct, and concluded that none of the incidents was established by the requisite preponderance of the evidence. ¹ Upon review at the request of the agency, the board reversed the decision of the presiding official. The board concluded that two incidents (A and D) were supported by a preponderance of the evidence, and that the penalty of removal was not unreasonable based only on those occurrences when Mr. Jackson's past disciplinary record was also considered. ² Mr. Jackson appealed to this court as provided in 5 U.S.C. Sec. 7703 (1982), invoking our jurisdiction under 28 U.S.C. Sec. 1295(a)(9) (1982).

Incident A

One incident found by the board to have been proved is that Mr. Jackson kissed a subordinate employee, Ms. LaSalle, while she was talking on the telephone. At the hearing, Ms. LaSalle testified that, while she was sitting on the floor in a basement hallway talking to her roommate on the telephone, Mr. Jackson walked up and kissed her. Mr. Jackson had never done this to her before, and Ms. LaSalle testified that she had done nothing to encourage him. Ms. LaSalle testified that Mr. Jackson entered the basement hallway through some usually closed double doors, but she did not see or hear him until he bent down to kiss her. She testified that the incident occurred shortly after her roommate moved in at the end of August (1981) and thought the date of the incident was the end of September. Although offended, she did not report the incident to appropriate authorities until more than a year later when she was asked about it by an investigator.

The roommate to whom Ms. LaSalle was speaking at the time of the alleged kiss was Mr. Kester. Mr. Kester testified that, during the subject phone conversation, he heard what he thought was a kiss, and Ms. LaSalle told him Mr. Jackson kissed her. He estimated that the subject phone conversation occurred in about the first week of September; that it might have occurred in the second week; but that it was not in the third or fourth weeks of that month. He did not hear any door slam during the subject telephone conversation.

Mr. Jackson testified at the hearing, denying that he kissed Ms. LaSalle. He testified that it would have been impossible for him to surprise Ms. LaSalle, as she claims, because the doors through which he would have entered the area make a lot of noise.

Mr. Knopp, an Acting Supervisor, testified that he works in the basement where the alleged kiss occurred. He was familiar with the doors through which one entered the hallway where the phone was located. Mr. Knopp testified to the effect that if one opened a door and let it go, it could be heard from one end of the hallway to the other.

Having considered the testimony pertaining to the kiss, the presiding official concluded:

In reviewing this entire matter, I find that Ms. LaSalle, was unclear as to when the action took place. I further find that her statement as to the approximate time and the statement by her former roommate were in direct conflict. I find no reason to disbelieve the appellant when he testified that he had not kissed Ms. LaSalle while she was on the phone. Accordingly, I find that the agency has not supported this charge by the preponderance of the evidence.

The board reversed the above finding for the following reason:

Despite appellant's denial, the record contains the subordinate's testimony and the testimony of the other person on the telephone regarding this incident. Tr. at 76-80. While neither of these witnesses could recall the exact date of the kiss, their testimony is consistent, and corroborates the agency's charge. Thus, the Board finds that this reason is supported by the requisite preponderant evidence.

Incident D

The second basis for finding sexual harassment by Mr. Jackson involved his repeatedly asking Ms. LaSalle for a kiss in response to her periodic requests to leave a few minutes early on her regular bowling night. In connection with this charge, Ms. LaSalle testified that she went bowling on Tuesday nights during September and October of 1981. On those occasions, a Ms. Herring, another VA Hospital employee, would come to the research building and wait for Ms. LaSalle to get off work. Ms. LaSalle testified that, when she asked for Mr. Jackson's permission to leave early, he would ask for a kiss in return. She testified, however, that she never actually had to give him a kiss in order to leave.

Ms. Herring testified that she did go to the research building on bowling nights to wait for Ms. LaSalle. She testified that they would occasionally ask Mr. Jackson if Ms. LaSalle could leave early. Ms. Herring testified that his response, on a few occasions, was "Sure, if you give me a little kiss." She stated that she and Ms. LaSalle would usually just look at him and laugh. Mr. Jackson denied ever having made such requests.

In regard to this incident, the presiding official made no mention of Ms. Herring's corroborative testimony. Instead, the presiding official analyzed the record as follows:

In his testimony, appellant was not evasive, nor did he seem insincere. Accordingly, I again find that I have contradictory evidence and I have no reason to disbelieve appellant in his denials. Moreover, Ms. LaSalle testified that it had not been her idea to file charges against the appellant. It had been suggested to her by a third person. In view of the uncertainness of Ms. LaSalle in the exact time of the alleged offenses, Ms. LaSalle's statement that she had not been the person to want to file charges, and appellant's own denials, I find that the agency has not sustained this charge by the preponderance of the evidence. Accordingly, this charge is dismissed.

On review, the board stated that "the testimony of another co-worker [Ms. Herring], who was present, is sufficient to establish" the alleged misconduct by preponderant evidence.

On appeal to this court, Mr. Jackson argues that the board improperly overturned the presiding official's credibility determinations in making its decision, citing Penasquitos Village, Inc. v. National Labor Relations Board, 565 F.2d 1074 (9th Cir.1977). Apart from the government offering more witnesses, Mr. Jackson argues there is no independent evidence upon which the board could justify its decision.

The agency argues that the board gave the presiding official's findings of fact as much weight as was warranted by the record in this case, and that it acted within its authority in substituting its findings for those of the presiding official. According to the agency, the board left alone the presiding official's findings regarding the three other incidents because they were essentially credibility determinations, turning on the testimony of Mr. Jackson vis-a-vis Ms. LaSalle. In contrast, the agency asserts, the subject incidents were each supported by the testimony of an additional witness. The board's findings sustaining those charges are, per the agency, supported by substantial evidence.

Issue

Whether the MSPB properly set aside findings of the presiding official?

Analysis

Review of Agency's Evidence to Establish Fact of Misconduct

The review by the MSPB of a Chapter 75 action is denominated "an appeal" of agency action. 5 U.S.C. Sec. 7701(a) (1982). However, even though the employee is the initiating party, the agency is required to establish its case to the board by a "preponderance of the evidence." 5 U.S.C. Sec. 7701(c). ³ Under this standard, the "appeal" requires a de novo determination of the facts. By seeking "review," an employee puts the agency in the position of a plaintiff bearing the burden of first coming forward with evidence to establish the fact of misconduct, the burden of proof, and the ultimate burden of persuasion, with respect to the basis for the charge or charges. The employee (while denominated appellant) has the advantageous evidentiary position of a defendant with respect to that aspect of the case.

The appeal from the final decision of the MSPB to this court is the more typical appellate proceeding. This court reviews factual determinations of the board under the "substantial evidence" standard. ⁴ 5 U.S.C. Sec. 7703(c). The Supreme Court has defined this standard as follows:

"[s]ubstantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 229 [59 S.Ct. 206, 216, 83...