PETITION FOR REVIEW OF AN ORDER OF MERIT SYSTEMS PROTECTION BOARD
Before Hunter and Sloviter, Circuit Judges, and Stapleton, District Judge.*fn*
This petition to review the decision of the Merit Systems Protection Board (hereafter Board) challenges the Board's right to use an employee's criminal conviction to collaterally estop him from denying that he committed those acts which led to his removal from government service. Although we conclude that the Board may use the doctrine of collateral estoppel, we find that its use on the present record was inappropriate and therefore remand to the Board for further proceedings.
Petitioner, LaVerne Chisholm, was employed as a warehouse forklift operator for six years with the Defense Logistics Agency, Defense Supply Depot, Mechanicsburg, Pennsylvania (hereafter Agency). The Agency instituted administrative proceedings leading to Chisholm's removal based on charges that on May 16, 1979 he allegedly struck a fellow employee, Ms. Odessa Lewis, and shoved her against some storage bins. The incident arose out of a personal disagreement between the two employees. Chisholm is the father of Lewis' three-year old son. Lewis testified that on the day before the incident she had prevented Chisholm from seeing his son and had refused to talk to him about it.
The Agency asserted that Chisholm's removal, which was a penalty greater than the minimum recommended for a first infraction by the Standard Schedule of Disciplinary Offenses and Penalties, was warranted because "this incident resulted in Mrs. Lewis being referred to the branch clinic for examination where it was determined that Mrs. Lewis would not be able to perform her full range of duties for a period of two days."*fn1 Chisholm appealed his removal to the Regional Administrator of the Merit Systems Protection Board pursuant to 5 U.S.C. § 7701 (Supp. III 1979).
At a hearing before a presiding official of the Board, the Agency presented three witnesses: Lewis; Donald Brehm, a co-employee who witnessed the incident; and Joseph Headen, a supervisor who saw Lewis shortly after the incident.*fn2 Lewis testified that she was working in the packing area when Chisholm approached her and said something about not being able to see his baby. Lewis said that she turned away and Chisholm punched her on the shoulder, and as she walked away towards the manager's office Chisholm followed her, punching her in the stomach. Brehm testified that he witnessed the incident but that he could only see the tops of the heads of Chisholm and Lewis because bins approximately five feet high blocked his view. He stated that he saw Lewis holding her stomach and that he saw Chisholm pushing her on the shoulders towards the packing bins. On cross-examination he testified that he did not see Chisholm strike Lewis, although he did see him follow her towards the office. The third witness, Headen, testified that he saw Lewis after the incident and that she was crying and holding her stomach and asking for help.
The Agency introduced a copy of the report of the dispensary where Lewis was treated following the incident. This report listed her complaint as an upset stomach and noted that she was placed on restricted duty for two days. In addition, the Agency introduced the evidence at issue here, two Judgment and Probation Commitment Orders indicating that Chisholm had been found guilty on June 22, 1979 before a Magistrate of the United States District Court for the Middle District of Pennsylvania of the separate offenses of assault and disorderly conduct based on the incident which also led to the removal.
Chisholm, testifying on his own behalf, acknowledged occurrence of the incident but denied any assault. He said that he sought to talk to Lewis and when she walked away from him he reached out to stop her. He stated that he never actually touched her and that he stopped following her when he heard Evelyn Waller, a union steward, yelling out to him to stop. Waller also testified, stating that she had witnessed the entire incident except for approximately three minutes when she was walking around the bins to intercede in the argument. Waller testified that she saw Chisholm following Lewis and reaching out to grab her but that he stopped when Waller yelled and never actually touched Lewis.
In his decision, the presiding official analyzed the evidence and made credibility determinations regarding the witnesses' testimony. He found that Lewis "display(ed) hostility" towards Chisholm and also found that her testimony of being punched in the stomach area by Chisholm while he was following her "strains one's credibility." He found some of Brehm's testimony to be contradictory, and thought that petitioner's witness, Waller, "gave more reliable testimony on this matter." The presiding official also concluded that the Agency medical report did not corroborate the extent of injuries claimed by Lewis, noting there was no evidence in the report of bruises, broken ribs or stomach injury resulting from a blow. Accordingly, the presiding official reversed the agency action because he found it was not supported by a preponderance of the credible evidence. The presiding official's opinion did not mention the prior criminal convictions based on the same incident.
The Board on its own motion reopened the appeal in order to address what it termed the significant issue of first impression before it of whether an employee's prior criminal conviction may effect a collateral estoppel to preclude the employee from denying an agency's charge relating to the same incident of misconduct.*fn3 After receiving briefs from the Agency and an intervenor, the Office of Personnel Management,*fn4 in support of the use of collateral estoppel and from petitioner in opposition, the Board concluded that collateral estoppel was appropriate in proceedings before an administrative agency and that the instant situation warranted its use. The Board found that the failure of the presiding official to consider the collateral estoppel issue contravened Board regulations*fn5 and further that his failure to accord full estoppel effect to the convictions was in error. The Board then concluded that "(u)pon full review of the record on appeal ... the agency's charge that the (petitioner) shoved and struck another employee, while both were on duty, is supported by the preponderance of the evidence." It further concluded, without discussion, that the Agency's removal of petitioner "promotes the efficiency of the service under the circumstances of this case."*fn6
On appeal petitioner raises three arguments: first, that collateral estoppel is not an appropriate doctrine for use in administrative disciplinary proceedings; second, that the Judgment and Probation Commitment Orders on which the Board relied without examination of the pleadings, transcript or record of the criminal proceeding could support the use of collateral estoppel to demonstrate only that petitioner had committed the least serious conduct which would violate the statute, i. e., "the least touching of another person's body wilfully;" and third, that reliance on the Judgment and Probation Commitment Orders does not support a reversal of the presiding official's factual finding that the Agency had not proven that petitioner's misconduct resulted in Lewis' inability to perform her full range of duties for two days.
The Agency contends that the principles underlying the use of collateral estoppel in the courts are applicable to quasi-judicial bodies within administrative agencies and that the use of collateral estoppel in this case met the requirements for its use which this court has established. In response to petitioner's contention that there was no evidence to support a reversal of the presiding official on the ...