Hewitt v. Grabicki
| Decision Date | 18 July 1986 |
| Docket Number | No. 84-4415,84-4415 |
| Citation | 794 F.2d 1373 |
| Parties | Donald W. HEWITT, M.D., Plaintiff-Appellant, v. Peter GRABICKI, M.D., Jane Doe Grabicki; Paul H. Guilfoil, M.D., Jane Doe Guilfoil; Daniel Myhre, Medical Assistant, Jane Doe Myhre; Harry N. Walters, Administrator of Veterans Affairs, Veterans Administration; and the United States of America, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Lawrence Cary Smith, The Smith Law Firm, Spokane, Wash., for plaintiff-appellant.
Carroll D. Gray, Asst. U.S. Atty., Spokane, Wash., for defendants-appellees.
On Appeal From the United States District Court for the Eastern District of Washington.
Before REINHARDT, BEEZER and HALL, Circuit Judges.
A former Veterans Administration physician brings an action against the Administrator of Veterans Affairs 1 and the United States seeking an order to the agency to delete unfavorable statements from annual proficiency reports and to recover damages for harm allegedly caused by those statements. He sues three Veterans Administration hospital employees for violating his civil and constitutional rights, alleging a conspiracy to force his resignation. He brings additional pendent state tort law claims against the individual defendants. The district court granted the defendants' motion for summary judgment and the plaintiff appeals. We affirm.
Dr. Donald W. Hewitt was employed as staff urologist of the surgical service at the Veterans Administration Medical Center in Spokane, Washington. Dr. Hewitt alleges that Dr. Peter Grabicki, chief of surgical services, Dr. Paul H. Guilfoil, chief of staff (now deceased), and Daniel Myhre, a physician's assistant, engaged in a campaign against him by making false and derogatory comments concerning his medical performance, both in oral conversations and written reports, with the aim of forcing him from employment with the hospital.
In December of 1978, Dr. Grabicki, as Dr. Hewitt's supervisor, completed a proficiency report evaluating Dr. Hewitt's performance for the previous year. Although Dr. Hewitt was assigned an overall satisfactory rating, Dr. Grabicki attached additional comments stating that a number of incidents had occurred which required counseling of Dr. Hewitt. Those alleged incidents included scheduling at least two patients for surgery without proper information in the patients' charts, and failing to "properly manage" two diabetic patients. Dr. Grabicki criticized Dr. Hewitt for maintaining an attitude that he was responsible only for urological problems and need not be concerned with other medical conditions suffered by patients assigned to him.
Dr. Hewitt appealed to the Veterans Administration under the Privacy Act of 1974 requesting that the agency amend his proficiency report by deleting the critical comments.
This request was ultimately denied by the Administrator for Veterans Affairs.
Dr. Grabicki completed another proficiency report in December of 1979, which again gave Dr. Hewitt a satisfactory rating, although with a declining numerical score. The new hospital chief of staff, Dr. Guilfoil, in approving the report, wrote that Dr. Hewitt's performance was deteriorating; that Dr. Grabicki and another urologist had declared they would not allow Dr. Hewitt to operate upon them; that Dr. Hewitt had been careless in completing consent for surgery forms such that patients might not be fully aware of the procedures involved in their consent; and that Dr. Hewitt had told the wife of a patient with inoperable cancer that he could not help him as the Devil had taken over the patient's body. Dr. Guilfoil concluded that Dr. Hewitt should be carefully monitored by Dr. Grabicki.
Dr. Hewitt sought no administrative review of the statements in the 1979 report.
Dr. Hewitt alleges that the comments attached to these two proficiency reports are merely two pieces of evidence of an ongoing conspiracy against him. He asserts that some of the incidents related in the report were relayed to Drs. Grabicki and Guilfoil by Mr. Myhre, a physician's assistant, who allegedly disliked Dr. Hewitt and distorted what had occurred to place him in a bad light. In addition, he claims that the three individual defendants consistently engaged in derogatory gossip concerning him, as well as unpleasant personal confrontations with him to criticize his performance.
Dr. Guilfoil subsequently made the statement that he would do everything in his power to "destroy" Dr. Hewitt unless he agreed to resign. Dr. Guilfoil also stated that in his opinion Dr. Hewitt should not be allowed to perform major surgery and that he intended to make an effort to have his hospital clinical privileges taken from him.
Dr. Hewitt additionally alleges that upon commencement of his employment at the hospital in 1967, Dr. Grabicki promised that he would be given unrestricted access to independent consultation and assistance in surgery from non-Veterans Administration physicians. In December of 1979, Dr. Guilfoil issued an order that outside physicians could no longer be used to assist in the performance of surgical procedures, but could only be retained for consultation.
In April of 1980, Dr. Hewitt was diagnosed as suffering from a peptic ulcer. He alleges that this ulcer was caused by stress resulting from harassment by the defendants and the pressure from his inability to obtain outside assistance in sophisticated urological surgery. He took sick leave from his duties as of April 30, 1980, and went to Hawaii. In August of 1980, the Veterans Administration requested further information concerning his ability to work. After obtaining this information, Dr. Hewitt was ordered to return to his position at the hospital. He failed to do so and was found absent without pay. A physical standards board subsequently convened to investigate the situation and recommended that Dr. Hewitt either return to work or retire. Dr. Hewitt's attending physicians expressed the opinion that the peptic ulcer was permanent in nature and any future stress could gravely endanger his health. They recommended that he not return to work at the hospital. Dr. Hewitt resigned from the Veterans Administration as of December 28, 1980.
Dr. Hewitt appeals the district court's grant of summary judgment. See 596 F.Supp. 297 (E.D.Wash.1984). Our review is de novo. Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983). We must determine, after viewing the evidence in the light most favorable to Dr. Hewitt, whether any genuine issue of material fact remains for trial and whether the substantive law was correctly applied. Fed.R.Civ.P. 56(c); Friends of Endangered Species Inc. v. Jantzen, 760 F.2d 976, 981 (9th Cir.1985).
Under the Privacy Act of 1974, 5 U.S.C. Sec. 552a (1982), every federal agency is obligated to ensure that information compiled in individuals' records, such as personnel evaluations, is accurate, relevant, timely, and complete. Sec. 552a(e)(5). An individual demonstrating that an agency has failed to meet this obligation may obtain declaratory relief ordering the record to be amended, Secs. 552a(g)(1)(A), (g)(2)(A) & (B), and may recover actual damages resulting from an adverse determination based on such records, Sec. 552a(g)(1)(C), (g)(4)(A) & (B).
Dr. Hewitt seeks both to have critical remarks expunged from the 1978 and 1979 proficiency reports evaluating his performance at the Veterans Administration hospital, and to recover damages allegedly resulting from those improper records.
The Privacy Act authorizes suit only against an "agency", Sec. 552a(g)(1), as defined in 5 U.S.C. Sec. 552(e) (1982). Dr. Hewitt has not named the Veterans Administration as a specific party to this case, but instead made service upon Max Cleland, in his former capacity as Administrator of Veterans Affairs. At oral argument, the government conceded, however, that Dr. Hewitt would be entitled to amend his complaint to add the Veterans Administration as a defendant, and that this amendment would relate back to the date of the original pleading under Federal Civil Procedure Rule 15(c) as the agency had notice of the action and knew that it was the proper party defendant. As the government has waived any objection based on joinder of parties, we need not decide whether the head of the agency is a proper defendant in a Privacy Act action. 2
As a prerequisite to bringing an action in district court for an order to amend an agency's individual record under the Privacy Act, Dr. Hewitt must have exhausted administrative remedies in attempting to have improper material in his personnel file eliminated. Sec. 552a(g)(1)(A). Dr. Hewitt properly made every effort to obtain administrative relief with regard to the allegedly objectionable comments included in the 1978 proficiency report. However, Dr. Hewitt failed to initiate any administrative action to obtain relief concerning remarks inserted in the 1979 proficiency report.
Dr. Hewitt attempts to justify this absolute failure to seek administrative relief by asserting that no true remedy is available in the Veterans Administration. Dr. Hewitt claims that the Veterans Administration procedures for the proficiency rating system provide administrative appeal remedies only for those individuals who receive an unsatisfactory rating, but not for individuals who are the subject of critical written comments in a report where the overall rating is satisfactory.
To the contrary, the agency's proficiency rating system procedures state that approving officials will have responsibility for reviewing, commenting on, and approving reports submitted by rating officials, and personnel officials will have responsibility for administrative review of reports. In fact, Dr. Hewitt was...
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