JACKSON V. VETERANS ADMINISTRATION
768 F.2d 1325 (Fed. Cir. 1985)
NATURE OF THE CASE: This was an appeal of a Board’s decision that reversed the judgment
of a presiding official which in turn reversed Jackson’s (P) dismissal.
FACTS: 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.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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