Gilmore v. United States Postal Service

104 F. App'x 734
CourtCourt of Appeals for the Federal Circuit
DecidedJuly 12, 2004
DocketNo. 04-3067
StatusPublished
Cited by1 cases

This text of 104 F. App'x 734 (Gilmore v. United States Postal Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gilmore v. United States Postal Service, 104 F. App'x 734 (Fed. Cir. 2004).

Opinion

PER CURIAM.

Wayne E. Gilmore (“Gilmore”) appeals the September 26, 2003, final decision of the Merit Systems Protection Board (“Board”), Gilmore v. United States Postal Serv., No. SE-0752-01-0278-I-1, 95 M.S.P.R. 294 (MSPB 2003), Sept. 26, 2003, denying Gilmore’s petition for review of the Board’s July 8, 2002, initial decision, dismissing Gilmore’s appeal of his removal by the United States Postal Service (“USPS”) for sexually harassing a coworker. In its final decision, the Board ruled that Gilmore had failed to present significant new evidence and that, in the initial decision, the administrative judge had made no harmful error in law. Because the Board properly determined that the USPS removed Gilmore without harmful procedural error, we affirm.

BACKGROUND

The USPS alleged that Gilmore had sexually harassed Trina Barnes, a casual clerk who worked on his shift. Barnes confirmed the agency’s allegations, while Gilmore denied all such conduct. No one else observed any of the alleged instances of sexual harassment. The administrative judge’s determination of the facts therefore rested entirely on his assessment of Barnes’s and Gilmore’s relative credibility.

The administrative judge found that Barnes was more credible than Gilmore, and concluded that Gilmore had sexually harassed Trina Barnes on three occasions. First, in December 2000, Gilmore told Ms. [736]*736Barnes that he took the drug Viagra and could perform sexually “all night long if need be.” He also made comments to Ms. Barnes about her body and performed nonverbal acts such as winking at her, licking his lips and “undress[ing] her with [his] eyes.” Second, in January 2001, Gilmore commented to Ms. Barnes, ‘You [are] looking mighty good in those jeans” and asked, “Are you still happily married? If you’re not, I’m still taking Viagra and I can help you with your problems.” Third, in February 2001, Gilmore “grabbed” Ms. Barnes’s buttocks, and after she objected by saying “Excuse me?” he stated “it looked so soft I just wanted to see if it was as soft as it looked.”

The administrative judge confronted three main issues. First, as described above, the administrative judge resolved the factual dispute by finding that Barnes was more credible than Gilmore. Second, the administrative judge rejected Gilmore’s contention that the USPS committed harmful procedural error. Third, the administrative judge decided that there was a nexus between Gilmore’s removal and the efficiency of the USPS and that the penalty of removal meted out to Gilmore was “within tolerable limits of reasonableness.” See Douglas v. Veterans Administration, 5 MSPB 313, 5 M.S.P.R. 280, 302 (1981).

In resolving the facts, the administrative judge decided that Barnes was more credible than Gilmore, after he considered the factors set forth in Hillen: “(1) The witness’s opportunity and capacity to observe the event or act in question; (2) the witness’s character; (3) any prior inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the contradiction of the witness’s version of events by other evidence or its consistency with other evidence; (6) the inherent improbability of the witness’s version of events; and (7) the witness’s demeanor.” Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). The administrative judge did not detect bias in Barnes’s testimony, particularly considering that she had not filed a complaint and had not personally initiated an investigation against Gilmore. Furthermore, her testimony at the Board hearing was consistent with the written statement she had provided to the USPS. Gilmore’s brief answers during his interview with USPS management, on the other hand, showed “a strangely low level of interest.” In Gilmore’s hearing before the Board, the administrative judge noted how Gilmore implausibly tried “to create an explanation for why his use of Viagra was known in the workplace.”

The administrative judge rejected Gilmore’s allegation that the USPS committed harmful procedural errors during his removal. Harmful procedural error is “error by the agency in the application of its procedures that is likely to have caused the agency to reach a conclusion different from the one which it would have in the absence or cure of the error.” 5 C.F.R. § 1201.56(c)(3) (2004). If an appellant establishes that the agency committed a harmful procedural error, the agency’s decision cannot be sustained by the Board. See 5 U.S.C. § 7701(c)(2)(A) (2004). First, Gilmore contended that Jonathan Weaver, the USPS deciding official, considered allegations made by another female employee, Rose Arledge, against Gilmore, even though the USPS had not brought charges against Gilmore involving Arledge. Even if there were error, the administrative judge decided that Gilmore had failed to show that it was harmful. Because Weaver, the USPS deciding official, did not rely on Arledge’s allegations against Gilmore in his penalty determination, Gilmore could not show that the USPS would have reached a different conclusion if Arledge had not provided her statement. Second, [737]*737Gilmore alleged that the USPS failed to provide him with a representative, that the USPS in its investigation showed bias against him and committed harmful procedural error, and that his due process rights were violated since the USPS’s investigative interview with Gilmore was “accusatory.” The administrative judge determined that none of these issues, even if true, involved a “denial of procedural rights granted to [Gilmore] by statute, regulation, or collective bargaining agreement.”

After establishing a factual basis for the charge of sexual harassment, the administrative judge briefly stated that there is a clear nexus between the efficiency of the agency’s service and the sexual harassment of a coworker. The administrative judge then decided that the penalty of removal was within “tolerable limits of reasonableness,” Douglas, 5 MSPB 313, 5 M.S.P.R. at 302, in light of the “repeated nature of appellant’s conduct, the fact that his conduct included physical contact, and the zero tolerance policy” regarding sexual harassment that Weaver, the USPS deciding official, had followed.

The Board denied Gilmore’s petition for review of its July 9, 2002, initial decision. Gilmore timely appealed the Board’s September 26, 2003, final decision. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

DISCUSSION

We must affirm the Board’s decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or not supported by substantial evidence. See 5 U.S.C. § 7703(c) (2004); Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1361 (Fed.Cir.1998). Although Gilmore claims that the USPS did not prove the charge against him by a preponderance of the evidence, Gilmore has not shown that the administrative judge’s factual determination that Gilmore sexually harassed Barnes satisfies any of the conditions required by our limited scope of review to reverse the Board’s decision. 5 U.S.C.

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Related

Gilmore v. United States Postal Service
544 U.S. 906 (Supreme Court, 2005)

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