Dorrance v. Department of Transp., F.A.A., 83-1175

• Decision Date: 18 May 1984
• Docket Number: No. 83-1175,83-1175
• Parties: 118 L.R.R.M. (BNA) 2379 Bernard DORRANCE, Petitioner, v. DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 516

735 F.2d 516

118 L.R.R.M. (BNA) 2379

Bernard DORRANCE, Petitioner, v. DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION

ADMINISTRATION, Respondent.

Appeal No. 83-1175.

United States Court of Appeals, Federal Circuit.

May 18, 1984.

Alan E. Wolin, Mineola, N.Y., argued for petitioner.

Lorraine B. Halloway, Washington, D.C., argued for respondent, J. Paul McGrath, Asst. Atty. Gen., David M. Cohen, Director, and Sandra Spooner, Washington, D.C., were on the brief.

Before MARKEY, Chief Judge, FRIEDMAN, RICH, SMITH and NIES, Circuit Judges.

RICH, Circuit Judge.

This appeal is from the April 25, 1983, decision of the Merit Systems Protection Board (Board) sustaining the removal of Bernard Dorrance from his position as Air Traffic Control Specialist by the Department of Transportation's Federal Aviation Administration (agency). The bases for the removal were proven charges of striking against the United States and absence without leave. We affirm.

Background

Dorrance was employed as an air traffic controller at the New York Air Route Traffic Control Center, Ronkonkoma, New York. On August 3, 1981, the Professional Air Traffic Controllers Organization (PATCO) commenced a nation-wide strike against the agency. Dorrance failed to report for duty as scheduled at 3 p.m. on August 3, 1981. By letter of August 6, the Chief of the air traffic center notified Dorrance that he was charged with striking against the United States Government and with being absent from duty without authorization, and was apprised of his proposed dismissal. In a letter of August 10, Dorrance requested an extension of time in which to file a written response to the charges. By separate letter on that date, he also requested certain material relevant to the agency's proposed action, under the Freedom of Information Act. A third letter by Dorrance on August 13 noted that "because of ambiguities in the notice and the statutes that apply, I cannot deny or affirm the charges at this time."

The request for an extension of time was denied by letter of August 12, and, by letter of August 19, the center's Chief, Louis C. Pol, dismissed Dorrance effective August 22, 1981. Dorrance appealed to the Board and, after a hearing, a Presiding Official sustained the agency's removal, as did the Board on petition for review in Adams et al. v. Department of Transportation (Docket No. NY075281F0424, April 25, 1983). Dorrance did not deny the charges against him at any stage of these proceedings, nor did he elect to testify during the hearing before the Presiding Official.

More details concerning the air traffic controllers' strike are set forth in related cases decided concurrently herewith: Schapansky v. Department of Transportation, 735 F.2d 477 (Fed.Cir.1984); and Adams v. Department of Transportation, 735 F.2d 488 (Fed.Cir.1984).

Issues

Dorrance challenges the agency's removal action on several grounds, principally, (1) the agency failed to meet its burden of proof that he participated in a strike; (2) the agency erred by invoking the "crime" provision of 5 U.S.C. Sec. 7513(b) to shorten the advance notice period to Dorrance before his dismissal; (3) that his removal does not promote the efficiency of the service; and (4) that the penalty of removal is grossly disproportionate to the nature of the offense. Such issues were raised in Schapansky, supra, and Dorrance's appeal on these grounds is rejected for the reasons set forth in Schapansky.

Dorrance further contends that (5) the Presiding Official erred in drawing a negative inference from Dorrance's failure to testify in his own behalf. This argument is unavailing. Silence added to the sufficiency of the agency's case when it follows the agency's establishment of a prima facie case, as discussed in our decision in Adams, supra.

Additional arguments by Dorrance for reversal of the Board's decision are: (6) the Presiding Official improperly relied upon hearsay evidence, i.e., the Time and Attendance Reports of the agency used to corroborate Dorrance's absence from work on August 3, 1981; (7) the harmful effect of consolidating Dorrance's case with those of 63 other air traffic controllers before the Presiding Official; (8) the harmful effect of the agency's denial of Dorrance's request of August 10 for an extension of time; (9) the violation of due process represented by alleged "dilatory" tactics of both the agency and the Presiding Official; and (10) that the agency prevented his return to work.

OPINION

Initially, we note that our standard of review for decisions of the Board is prescribed in 5 U.S.C. Sec. 7703(c). ¹

The Presiding Official heard the testimony of Chief Pol, and noted that he identified schedules, logs, and time and attendance records which documented, inter alia, the absence of Dorrance commencing on August 3, 1981. Dorrance contends that the unsupported testimony of the Center Chief is not sufficient to prove that he was striking, and that these various records are hearsay and also ineffective because of evidentiary deficiencies such as a lack of testimony as to their accuracy or the manner in which they were made and maintained.

As explained in Schapansky, proof of a wide-spread strike of general knowledge, together with Dorrance's absence without authorization or explanation during the strike constitutes at least a prima facie case of his participation in the strike. Dorrance neither denied his absence nor the existence of a strike; nor does he argue that he objected to Chief Pol's testimony or documents relied upon therein at the time of the hearing. The Board found that the unrebutted testimony of Chief Pol was sufficient to establish a prima facie case of striking. Furthermore, the documents appear probative and would be competent evidence though hearsay before the Board in any event. See, e.g., Borninkhof v. Department of Justice, 5 MSPB 150, 153 (1981); and Brewer v. United States Postal Service, 647 F.2d 1093, 1097-98, 227 Ct.Cl. 276 (1981), cert. den., 454 U.S. 1144, 102 S.Ct. 1005, 71 L.Ed.2d 296 (1982).

Dorrance next claims that the consolidation of his case along with 63 "other appeals on one day" was harmful error, and violated his due process rights to a fair hearing. ² Dorrance admits that the Presiding Official has discretion to consolidate appeals under 5 U.S.C. Sec. 7701(f); however, he contends that this consolidation "rendered the hearing a sham" and "chilled and reduced his opportunity as a matter of law, to introduce evidence in his own defense." This contention is at best disingenuous because Dorrance did not object to the consolidation until now, and because he made no attempt to introduce evidence in his own defense. The consolidated appeals involved substantially the same issues and questions of fact and the same counsel represented all of the appellants. Furthermore, the one controller who did present an individual defense, Mr. Copping, was singled out for separate treatment in the Presiding Official's decision. Dorrance has not shown any harm to his opportunity to defend himself nor that this consolidation was an...