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Howard v. Department of Air Force

Decided: May 31, 1989.

JOSEPH L. HOWARD, PETITIONER,
v.
DEPARTMENT OF THE AIR FORCE, RESPONDENT



Appealed from: Merit Systems Protection Board.

Smith, Bissell, and Michel, Circuit Judges.

Smith

SMITH, Circuit Judge

In this sexual harassment case, Joseph L. Howard (Howard), appeals the decision of the Merit Systems Protection Board (board),*fn1 sustaining the Department of the Air Force's (agency) removal of Howard from his position as a medical machine technician for the Department of the Air Force at Wright-Patterson Air Force Base, Ohio. We affirm.

Issues

On appeal, we address the following issues:

1. Whether the board erred by determining that, in a removal action pursuant to chapter 75 of title V, the agency is not required to establish the same elements of proof required of complainants bringing actions for sexual harassment under title VII of the Civil Rights Act of 1964.

2. Whether the board's decision sustaining Howard's removal from his medical machine technician position based on charges of sexual harassment is supported by substantial evidence, and is not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law, or obtained without procedures required by law, rule, or regulation having been followed.

Background

On October 12, 1987, Howard was removed from his position as a medical machine technician with the Air Force. In its July 15, 1987, notice of proposed removal, the agency charged Howard with harassing three female co-workers with unwelcome, sexually related conduct that created an offensive work environment. Each one of the three female co-workers submitted written statements detailing Howard's conduct.

The agency, on the basis of its determination that the sexual harassment charge was proved and that the charge was of such a serious nature as to warrant removal, concluded that Howard's removal from his position was the appropriate penalty for his misconduct. In accordance with the proper procedures, Howard then appealed his removal to the board.

The board heard testimony regarding Howard's conduct from the three female co-workers who had provided written statements to the agency. The board found that their testimony was "consistent with their prior written statements" and that their testimony was more credible than Howard's testimony.*fn2 The first witness testified that Howard told her "weird" sexual stories about past affairs with other women and about his experience in administering EKG exams to females.*fn3 She testified that these stories were usually told by Howard when he was alone with her, and that his tone was lewd and harassing The first witness also testified that Howard suggested to her that they "go to the beach in Cincinnati and make wild love all afternoon."*fn4

The second witness testified that, after knowing Howard for only 3 days, Howard grabbed her and kissed her. Furthermore, she testified that nearly all of Howard's conversations with her related to sex, and that on at least one occasion, Howard asked her explicit questions about her weight, body functions, breast size, and sex drive.*fn5

The third complaining witness testified that, during her pre-employment eye examination at Howard's duty station, Howard asked her if she was pregnant and told her that she could only be sure she was not pregnant if she was "not 'doing anything.'"*fn6 She also testified that, after she commenced employment, Howard, on many occasions, touched her shoulders and back with his hands in spite of her repeated demands to stop. The third witness further testified ...


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