Balderman v. U.S. Veterans Admin.

• Citation: 870 F.2d 57
• Decision Date: 10 March 1989
• Docket Number: D,No. 735,735
• Parties: Samuel C. BALDERMAN, M.D., Plaintiff-Appellant, v. UNITED STATES VETERANS ADMINISTRATION and Veterans Administration Medical Center, Defendants-Appellees. ocket 87-6256.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 57

870 F.2d 57

Samuel C. BALDERMAN, M.D., Plaintiff-Appellant, v. UNITED STATES VETERANS ADMINISTRATION and Veterans Administration Medical Center, Defendants-Appellees.

No. 735, Docket 87-6256.

United States Court of Appeals Second Circuit.

Argued Feb. 18, 1988.

Decided March 10, 1989.

John A. Galeziowski, Buffalo, N.Y., for plaintiff-appellant.

Martin J. Littlefield, Asst. U.S. Atty., Buffalo, N.Y. (Roger P. Williams, U.S. Atty., W.D.N.Y., on the brief), for defendants-appellees.

Before TIMBERS, KEARSE, and MAHONEY, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff Samuel C. Balderman, M.D., appeals from a final judgment of the United States District Court for the Western District of New York, John T. Curtin, then-Chief Judge, dismissing his complaint against defendants Veterans Administration Medical Center in Buffalo, New York ("Medical Center"), and the United States Veterans Administration (collectively the "VA"), seeking redress for the termination of his employment as a surgeon on the staff of the Medical Center. The district court granted the VA's motion for summary judgment dismissing the complaint on the ground that Balderman was a part-time employee of the Medical Center and hence had no tenure and no right to a pretermination hearing. Balderman, formerly a full-time surgeon on the staff of the Medical Center, contends principally that this ruling was erroneous because his conversion to part-time status was invalid on account of the VA's failure to forewarn him that he would thereby lose these rights. For the reasons below, we affirm the dismissal of Balderman's claim that his termination was a disciplinary action requiring a pretermination hearing, but we conclude that summary judgment should not have been granted dismissing the claim with respect to his tenure rights, and we remand to the district court for further proceedings on the latter claim.

I. BACKGROUND

Balderman became a full-time member of the cardiothoracic section of the surgical staff at the Medical Center in 1978 and acquired permanent status, or tenure, in 1980. He was also affiliated with the Department of Surgery in the School of Medicine

at the State University of New York at Buffalo. In 1981, Balderman decided to increase his involvement with the School of Medicine, and he requested that his appointment at the Medical Center be reduced to seven-eighths of full time.

A. The Conversion to Part-Time and the Ensuing Events

The VA's operations manual provided that: "Conversions to another appointment ... giving the employee less rights and benefits may not be effected until he has been advised in writing of the conditions of employment under the new appointment; and has submitted a written resignation or other written evidence clearly indicating voluntary [separation] from his previous employment." VA Manual MP-5, Part II, Chapter 2, p 11(a) (Jan. 22, 1974) ("VA Manual") (brackets and punctuation in original). In a memorandum dated June 26, 1981 ("1981 VA Memorandum"), the VA explained to Balderman that his conversion to part-time status would require him to relinquish his full-time appointment and would result in changes in pay, life insurance benefits, leave accrual rates, and retirement benefits. No other changes were mentioned. The foot of the 1981 VA Memorandum bore the printed legend, "I DO/DO NOT UNDERSTAND ALL OF THE CONDITIONS, INCLUDING LOSS OF BENEFITS OF CONVERTING TO PART-TIME EMPLOYMENT." Balderman crossed out "DO NOT" and signed the memorandum. His conversion to part-time ( 7/8) status was approved in June 1981 pursuant to 38 U.S.C. Sec. 4114(a) (Supp. IV 1986).

After Balderman's change to part-time status, the Medical Center hired two new full-time cardiothoracic surgeons, one in 1982 and one in 1983. The VA expressed no dissatisfaction with Balderman, however, and when he expressed concern as to the need for the 1983 hiring, his supervisor told him that it would not affect Balderman's status. Nonetheless, the VA soon decided to reduce Balderman's position from seven-eighths to one-half time because of a surplus of full-time staff. Balderman challenged that decision in an action in the district court in January 1984, contending that he was entitled to a hearing prior to this change in his part-time status. The suit was summarily dismissed by the district court on the ground that under 38 U.S.C. Secs. 4110(a) and 4114(a)(1)(A), a part-time employee of the VA is not entitled to notice and a hearing prior to such a reduction. See Balderman v. United States Veterans Administration, 83 Civ. 1451C (W.D.N.Y. June 29, 1984)(Balderman I), aff'd mem., No. 84-6266 (2d Cir. Dec. 31, 1984).

In the summer of 1984, the Medical Center's chief of surgery determined that a reduction of staff in the cardiothoracic section was necessary and that Balderman, as the more junior of the two part-time surgeons in that section, should be terminated. The termination of his employment became effective in August 1984.

B. The Present Action

Balderman commenced the present action in 1985, alleging principally that the termination violated his tenure rights, which he claimed to retain on the ground that his conversion from full-time to part-time status had not been effective due to the VA's failure to comply with the pertinent VA regulations requiring it to inform him that the change in his status would result in a loss of tenure rights. He also contended that his termination constituted disciplinary action as to which a pretermination hearing was required.

The VA moved for summary judgment dismissing the complaint principally on the grounds (1) that the decision in Balderman I constituted res judicata or collateral estoppel, and (2) that the VA had adequately informed Balderman of the changes in employment conditions to result from his conversion to part-time status, and hence Balderman retained no tenure or hearing rights after that conversion. Balderman opposed the VA motion and cross-moved for summary judgment in his favor. He submitted his affidavit stating, "I was not informed either orally or in writing that my acceptance of the conversion would result in any In an opinion published at 666 F.Supp. 461 (1987), the district court granted the motion to dismiss. Though it rejected the contention that the suit was barred by res judicata or collateral estoppel, it concluded that the information given to Balderman prior to his conversion sufficed. Relying on Nataraj v. United States, Civ. No. 85-5120 (D.N.J. Nov. 15, 1985), the court concluded that the VA "did not improperly effect plaintiff's conversion from full to part-time in 1981." 666 F.Supp. at 465. With respect to Balderman's claim that a pretermination hearing was required because his termination was a disciplinary action, the court rejected Balderman's premise, noting his failure to controvert the affidavit of the VA chief of surgery stating that the cardiothoracic section was overstaffed.

                loss of seniority, job security, or job permanency."    He stated, "If I had known that a conversion to part-time would result in loss of job security and retention status, ... I would definitely not have requested or accepted the conversion."    The VA did not controvert the assertion that it had not advised Balderman that he would lose tenure and hearing rights upon conversion.  Rather, it pointed out that the VA Manual "does not stipulate exactly what must be contained in the written advisement to the employee," and it argued that the information given Balderman in the 1981 VA Memorandum "suffice[d]."
                

Judgment was entered dismissing the complaint, and this appeal followed.

II. DISCUSSION

On appeal, Balderman contends that the district court erred in granting summary judgment against him and should instead have granted summary judgment in his favor. Though we reject the latter contention summarily, and though we conclude that the dismissal of Balderman's claim for a pretermination disciplinary hearing was proper substantially for the reasons stated in the district court's opinion, we find merit in the contention that there were genuine issues of material fact that foreclosed the summary dismissal of Balderman's claim that he had not been properly deprived of tenure.

A. Material Issues of Fact as to the Tenure Claim

The general principles governing motions for summary judgment are well established. Such a motion may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law. See Fed.R.Civ.P. 56(c). On a motion for summary judgment, the court is not to resolve issues of fact but only to determine whether there are issues to be tried. E.g., Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir.1989); Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d 54, 58 (2d Cir.1987); Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317, 1319-20 (2d Cir.1975). In assessing the record to determine whether there is a genuine issue as to any material fact, the court is required to draw all factual inferences in favor of the party against whom summary judgment is sought. See, e.g., Ramseur v. Chase Manhattan Bank, 865 F.2d at 465; Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d at 57; Schwabenbauer v. Board of Education, 667 F.2d 305, 313 (2d Cir.1981). Further, "[w]e have repeatedly noted that 'summary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated.' " Ramseur v. Chase Manhattan Bank, 865 F.2d at 465 (quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985)); see Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); Patrick v. LeFevre, 745 F.2d 153, 159 (2d Cir.1984) (citing cases). These principles were not properly applied to Balderman's...