Appeal from: Merit Systems Protection Board
Before Newman, Michel, and Schall, Circuit Judges.
The Office of Personnel Management, acting through its Director, appeals the decision of the Merit Systems Protection Board*fn1 that certain conduct of Phillip G. Hillen did not constitute "hostile environment" sexual harassment. The Board and Mr. Hillen defend the decision. We vacate the decision of the Board, and remand for redetermination on the correct law.
In 1985 Phillip G. Hillen, senior civilian manager at the Army's Military Traffic Management Command, was removed from service by the Command, based on a series of incidents involving five women who were military and civilian personnel at the Command. The Notice of Proposed Removal, by Brigadier General Donald C. Smith, recited the charges in some detail, and stated:
2. I propose to remove you because you have sexually harassed female members of this Command. This misconduct occurred during work hours and in work places. As a result, your actions had the effect of unreasonably interfering with the work performance of the individuals involved and created an intimidating and offensive work environment.
The Notice of Proposed Removal referred to Mr. Hillen's position of authority and his relationship of trust within the Command, and stated:
Your conduct is not only a grave departure from the fundamental responsibilities of your position but is also a direct violation of widely publicized and long standing Army and Command policies regarding sexual harassment.
The charges were, in brief, as follows: that Mr. Hillen improperly touched Captain Nancy Daugherty on her buttocks and thigh (the coffee pot incident), that on another occasion he touched her breast (the elevator incident), that he made a suggestive comment to her on the telephone, and often looked at her body in a sexually suggestive manner; that Mr. Hillen repeatedly touched Ms. Geneva Byars in an unwelcome manner, directed sexual innuendos to her, and told dirty jokes in her presence; that he was "unusually attentive" to Ms. Jan Ingerski, repeatedly asked her out for a drink after work, and looked at her in a sexually suggestive manner; that he took an unusual interest in Ms. Cynthia Schaefer and her career, often standing very close to her and looking at her body in a sexually suggestive manner; and that he looked at Ms. Georgia Parkinson in a sexually suggestive manner, made remarks having sexual overtones, and occasionally touched her shoulder. Three of the women (Captain Daugherty, Ms. Byars, and Ms. Ingerski) had complained to their supervisors or other agency officials, expressing anger, intimidation, or discomfort.
Mr. Hillen, in oral and written responses to the Notice, denied the charged incidents or disputed their significance. He stated that his actions may have been misunderstood, and that there was neither intended nor colorable sexual harassment, or would not have been from the viewpoint of a reasonable woman.
Investigations of the charges were conducted by the Office of Inspector General and by the Army. The deciding official, Major General Small, concluded that "sexual harassment did occur, in violation of Army, OPM, and EEOC regulations." The Notice of Decision quoted the EEOC Guideline definition of sexual harassment and stated that this regulation, 29 C.F.R. § 1604.11, "forms the basis for the various Office of Personnel Management (OPM), Department of Defense and Army prohibitions on sexual harassment." Major General Small stated that Mr. Hillen was a "high level employee from whom the Army has the right to expect strict compliance with agency regulation", and concluded that removal was the appropriate remedy.
Mr. Hillen appealed to the Merit Systems Protection Board, in accordance with 5 U.S.C. § 7543(d). There ensued several Board proceedings, summarized as follows:
The first of three proceedings before the administrative Judge (then called the "presiding official") took place in 1985. After hearing the Army's evidence, the administrative Judge granted Mr. Hillen's motion for summary judgment.
The administrative Judge characterized the charges as mostly based on "speculation, gossip and hindsight." He found that the touching of Captain Daugherty's breast (the elevator incident) was inadvertent. He deemed it significant that Captain Daugherty did not complain to any official about the various incidents until a year after their commencement, when she told her supervisor that she was afraid to be alone with Mr. Hillen and complained to the Inspector General. Concerning Ms. Byars, the administrative Judge found that Ms. Byars could not specifically remember any of the dirty jokes told by Mr. Hillen, and did not complain directly to Mr. Hillen. Concerning Ms. Ingerski, Ms. Schaefer, and Ms. Parkinson, the administrative Judge found that Mr. Hillen made no sexual overtures, that the incidents occurred some years earlier, and that the actions of which Mr. Hillen was accused were not of a sexual nature.
The administrative Judge concluded that the Army had not proved sexual harassment by a preponderance of the evidence, citing the EEOC regulation 29 C.F.R. § 1604.11. He also held that the agency had not made a prima facie case of sexual harassment. The Army, and the Office of Special Counsel as intervenor, petitioned the full Merit Systems Protection Board for review.
The Board vacated the summary judgment, holding that the Army had presented an "unimpeached prima facie case" of sexual harassment. The Board found that
Captain Daugherty's unrebutted testimony establishes that appellant twice touched her without invitation and that appellant went out of his way to do so. The incidents were part of an apparent pattern of conduct and seriously upset Captain Daugherty and interfered with her work.
The Board agreed with the administrative Judge that Ms. Byars' allegation about dirty jokes was not proved, but on review of her testimony the Board found that
the evidence presents an unimpeached prima facie case of sexual harassment of Ms. Byars by the appellant by establishing that appellant touched Ms. Byars without her consent, that the touching was unwelcome to Ms. Byars, that the conduct was pervasive, and that it affected Ms. Byars' work performance.
With respect to Ms. Ingerski, the Board found that the administrative Judge had ignored significant amounts of her testimony and improperly required that she have complained directly to Mr. Hillen. The Board found that Mr. Hillen's conduct
did have a sexual connotation but that the evidence fails to show that appellant's conduct affected Ms. Ingerski's work performance or seriously affected her psychological well-being.
The Board concluded that there was not a prima facie case of sexual harassment concerning Ms. Ingerski.
Since the administrative Judge had not permitted Ms. Schaefer and Ms. Parkinson to testify, the Board took their statements to the investigators as true. The Board found that Mr. Hillen's conduct "did not affect Ms. Parkinson's work performance nor did it seriously affect her psychological well-being." Concerning Ms. Schaefer, the Board found that Mr. Hillen's conduct could constitute sexual harassment, but that further information about the effect on Ms. Schaefer was needed.
The Board remanded the case to the administrative Judge for completion of the hearing and readjudication. Hillen v. Department of the Army, 29 M.S.P.R. 690 (1986) (Hillen I).
Upon remand, the administrative Judge again determined that Mr. Hillen's conduct did not violate 29 C.F.R. § 1604.11(a). Concerning Ms. Schaefer, the administrative Judge cited her statement that she suffered no serious damage to her psychological well-being, found that Mr. Hillen's conduct toward her was not pervasive or severe, and that it was not of a sexual nature. Concerning Ms. Byars, the administrative Judge found that although Mr. Hillen's frequent touching of Ms. Byars' shoulders may have been unwelcome, it was not of a sexual nature and did not constitute sexual harassment. The administrative Judge found, as a matter of credibility, that Mr. Hillen did not touch Ms. Byars' breast.
Mr. Hillen did not dispute that certain incidents involving Captain Daugherty had occurred. Concerning the elevator incident, the administrative Judge found that any touching of Captain Daugherty's breast was inadvertent when Mr. Hillen was "grabbing her hand" which was tucked under her arm for warmth. The coffeepot incident was found to have no sexual intent, the administrative Judge finding that Mr. Hillen was "attempting to be helpful" in brushing Captain Daugherty's skirt with his hand. The administrative Judge stated that
while she may honestly have perceived appellant's conduct as "serious", and even "pervasive," I find that her perceptions were erroneous. I further find that appellant did not engage in any intentional sexual conduct toward Captain Daugherty, and that the charges with respect to her are not sustained.
The administrative Judge again ordered that Mr. Hillen be reinstated. The Army and the Special Counsel again requested review by the full Board.
After instructing on procedures for the evaluation of evidence, the Board again vacated the ruling of the administrative Judge, stating that he had not resolved essential credibility issues:
To date, the administrative Judge has failed to make findings as to whether the incidents described in the specifications referring to Captain Daugherty and Ms. Schaefer occurred, and failed to provide an adequate basis for his finding that the appellant did not touch Ms. Byars.
The Board held that Title VII and the EEOC Guidelines, as interpreted by the Federal Circuit in Downes v. Federal Aviation Administration, 775 F.2d 288 (Fed. Cir. 1985), require that there be proof of serious effect on the psychological well-being of the victim. The Board stated that although the Army's regulations concerning sexual harassment did not make this requirement, and thus set a more stringent standard of workplace behavior as compared with this interpretation of the EEOC Guidelines, it was "somewhat ambiguous" from the Army's Notices as to whether it was proceeding under its own policies and rules or under the EEOC Guidelines.
The Board referred to this court's ruling in Carosella v. United States Postal Service, 816 F.2d 638, 643 (Fed. Cir. 1987), that an agency may require more stringent standards of behavior of its employees. However, the Board held that the Army would be held to the proofs required to show violation of Title VII and the EEOC Guidelines "because the agency cited only 29 C.F.R. § 1604.11 in its decision letter."
The Board remanded the case to the administrative Judge for further findings of fact. Hillen v. Department of the Army, 35 M.S.P.R. 453, 462 (1987) (Hillen II).