672 F.2d 935 (D.C. Cir. 1982), 80-2265, Jolly v. Listerman

Docket Nº:80-2265.
Citation:672 F.2d 935
Party Name:Donald G. JOLLY, Appellant, v. E. J. LISTERMAN, Regional Representative, Bureau of Retirement and Survivors, et al.
Case Date:January 15, 1982
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 935

672 F.2d 935 (D.C. Cir. 1982)

Donald G. JOLLY, Appellant,

v.

E. J. LISTERMAN, Regional Representative, Bureau of

Retirement and Survivors, et al.

No. 80-2265.

United States Court of Appeals, District of Columbia Circuit

January 15, 1982

As Amended March 18, 1982.

Page 936

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 76-00932).

Judson H. Miner, Chicago, Ill., with whom Timothy J. Bloomfield, Washington, D. C., was on the brief for appellant.

A. Patricia Frohman, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., Royce C. Lamberth and Kenneth M. Raisler, Asst. U. S. Atty., Washington, D. C., were on the brief for appellees.

Before TAMM, WILKEY and EDWARDS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKEY.

Dissenting opinion filed by Circuit Judge HARRY T. EDWARDS.

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WILKEY, Circuit Judge:

We are called upon in this case to decide whether the Social Security Administration (SSA) exceeded its statutory authority by dismissing one of its employees. Two issues are raised for our consideration: (1) whether, following an earlier remand from this court for reconsideration of its dismissal in light of reduced charges, the SSA denied appellant due process by reaffirming its decision; and (2) whether the SSA's adherence to its prior decision to discharge appellant, notwithstanding the reduced charges, was arbitrary and capricious. We resolve these issues in favor of the SSA's action; we therefore affirm the district court's order reinstating summary judgment for defendants-appellees.

I. BACKGROUND

We shall provide some context to this matter at the outset by capsulizing the events leading to appellant's discharge from the Social Security Administration (over seven years ago) and the steps leading to his appearance (once again) before this court.

Donald Jolly started with the Bureau of Retirement and Survivors Insurance of the Social Security Administration at its Southeastern Program Center in Birmingham, Alabama, in 1960. By December 1969 he had progressed from a GS-5 position to a GS-11 assignment as a quality reviewer in the Quality Appraisal Department, where he performed "end of line" review on samplings of claim files, searching for various processing errors. He remained in this position until early 1971, when he was assigned to a district office visitation program. He was involved exclusively in this program until January 1972.

During these years with the SSA Jolly was active in union work, and was elected president of Local 2206 of the American Federation of Government Employees (AFGE) for three consecutive terms, extending from 1969 to 1972. With union concerns dominating more and more of his time, Jolly took an approved leave of absence from the SSA from January to August of 1972 to devote all his energies to union activities. In August of that year, however, apparently as a result of intraunion friction and controversy, the national union headquarters imposed a trusteeship upon Local 2206 and removed Jolly as president. New local officers were appointed by AFGE leadership in October 1972, which thereby divested appellant of any official union responsibilities.

By this time Jolly had entered into the SSA's Staff Development Program, a program designed to train promising employees for supervisory positions and for which he had been selected in July 1972. Appellant completed the first phase of his training but resigned from the program on 5 January 1973 when he was unable to obtain a six-month extension before being transferred to Atlanta, Georgia, for the second phase. 1 He was thereafter reassigned to the Quality Appraisal Branch as a quality reviewer. Because his experience in that position had been limited by his involvement in other programs and activities over the previous two years, he was required to retrain for the job.

It was anticipated that it would take Jolly about two months of retraining to obtain a level of accuracy that would permit "graduation" from trainee status to that of a final reviewer. In fact, however, he remained a trainee for nine months-from February through October 1973-and, according to management, his work never reached the required level of accuracy. Forms returned to Jolly were accompanied by written critiques indicating errors, but appellant adopted a position that there was in fact no substantial problem with his work. He maintained that the errors identified by reviewers were either not his fault, insignificant, or the result of an inadequate training system. Jolly's supervisors, on the other hand, saw his poor performance

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as resulting from "his lack of applying himself and trying to do the work," his failure to accept suggestions for improving his work, and a general "defiant" response to any criticism. On 24 July 1973 Jolly was given sixty-days' notice to improve his work. When the improvement had not occurred by 30 October, appellant was notified by letter that Mr. Yeorgan, the Acting Quality Appraisal Officer, was recommending that Jolly not be retained in the quality review position.

Jolly's duties with the SSA were also affected at least in part by his devotion to union activity. He was, according to management, frequently interrupted by nonwork-related phone calls and visitors. While involved even in the "prestigious" staff development program, he refused to accede to a supervisor's request to cooperate in restricting work interruptions. When, after he returned to quality appraisal, Jolly's union-related activity continued to occupy an excessive share of his work day and began to interfere with retraining efforts, his new supervisors found it necessary to restrict the number of incoming phone calls during work hours and the amount of work time that could be used to represent other employees' grievances against management. 2

On 27 December 1973 Jolly was sent a letter from E. J. Listerman, regional representative of SSA's Bureau of Retirement and Survivors Insurance, notifying appellant of a proposal to separate him from federal service and listing in detail the reasons for the proposed action. The charges in the notice were essentially these:

  1. Poor quality of work;

  2. Failure to cooperate with superiors-specifically:

    (a) Failure to cooperate with supervisors' requests to limit grievance representation in order to permit concentration on retraining for the job;

    (b) Failure to cooperate in limiting the number of nonwork-related telephone calls received during work hours;

    (c) Resignation from the management training program, causing a waste of time and money spent planning Jolly's participation in the program and causing an inconvenience to the Atlanta Regional Office.

    (d) Refusal to answer management questions concerning the publication of newsletters seen as particularly disparaging to management and of a type which could have a derogatory effect on employee morale;

  3. Creating an atmosphere adversely affecting the employee-employer relationship by publishing activist newsletters and by holding himself out as president of Local 2206 after the trusteeship was imposed. 3

    Appellant denied the allegations in Listerman's letter and requested advisory arbitration, which was agreed to by both the agency and the AFGE. A month-long hearing before the advisory arbitrator yielded an opinion dated 12 December 1974 concurring with the SSA's proposal to discharge Jolly from federal service. This opinion was accepted by the agency on 20 December 1974, and the decision to separate Jolly from federal service was noticed as effective at the close of business on 27 December 1974.

    Page 939

    Appellant proceeded to the next stage of available administrative review by appealing the SSA's decision to the Civil Service Commission's Federal Employee Appeals Authority (FEAA). 4 At appellant's request a hearing open to the public was conducted by an FEAA representative on 10 and 11 September 1975. For reasons unimportant to the present review, the FEAA effectively struck charge number 3, relating to "creating an atmosphere adversely affecting employee-employer relationship," and parts (c) and (d) of charge 2 in the list of particulars, relating to resignation from the management training program and refusal to answer questions regarding the publication of the union's newsletter. Nevertheless, the FEAA upheld the dismissal on the remaining charges, concluding "that a removal action based on the sustained charges is not arbitrary, unreasonable or capricious and is for such cause as will promote the efficiency of the service." 5 Under Civil Service Regulation 772.309(b) the FEAA decision was final and there remained no further right of administrative appeal. 6 Jolly therefore proceeded to the courts.

    On 25 May 1976 Jolly brought suit in the United States District Court for the District of Columbia seeking the usual declaratory, injunctive, and compensatory relief. Defendants moved for dismissal or summary judgment, and when Jolly failed to file a timely statement of points and authorities in opposition to defendants' motion, the district court dismissed the case. This court reversed the dismissal on appeal, however, and remanded the case to the district court for further consideration. 7 On remand the district court granted defendants' motion for summary judgment and ordered once again that the action be dismissed. 8

    Undeterred, Jolly followed the usual course by availing himself of a duplicative appeal to this court, arguing for a remand to the Social Security Administration with directions to reconsider the penalty imposed in light of the Civil Service Commission's having reduced the original charges against him. This court accepted appellant's request...

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