Jackson v. Veterans Administration

768 F.2d 1325 (Fed. Cir. 1985)


Based on five separate incidents of misconduct, P was removed from his supervisory position with the Veterans Administration (D) for sexual harassment of a subordinate. 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. On review, the board reversed the decision of the presiding official. The board concluded that two incidents were supported by a preponderance of the evidence and that the penalty of removal was not unreasonable based only on those occurrences when P's past disciplinary record was also considered. The board found that P kissed a subordinate employee while she was talking on the telephone. Although offended, the victim did not report the incident until more than a year later when she was asked about it by an investigator. P denied the kissed and stated it would have been impossible for him to surprise the victim, as she claims because the doors through which he would have entered the area make a lot of noise. If one opened a door and let it go, it could be heard from one end of the hallway to the other. P also asked the same victim for a kiss in response to her periodic requests to leave a few minutes early on her regular bowling night. She never actually had to give him a kiss in order to leave. Another employee heard P say this on a number of occasions. P denied ever making such a request. The board overturned the presiding official in that the corroborating evidence of witnesses was enough to establish the misconduct by a preponderance of the evidence. P appealed.