Balderman v. US Veterans Admin., CIV-85-397C.

• Decision Date: 31 July 1987
• Docket Number: No. CIV-85-397C.,CIV-85-397C.
• Parties: Samuel C. BALDERMAN, M.D., Plaintiff, v. UNITED STATES VETERANS ADMINISTRATION and Veterans Administration Medical Center, Defendants.
• Court: U.S. District Court — Western District of New York

666 F. Supp. 461

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

No. CIV-85-397C.

United States District Court, W.D. New York.

July 31, 1987.

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

Roger P. Williams, U.S. Atty. (Martin J. Littlefield, Asst. U.S. Atty., of counsel), Buffalo, N.Y., for defendants.

CURTIN, Chief Judge.

Plaintiff Balderman first brought suit in this court in 1983 (CIV-83-1451C). After oral argument, I granted defendants' summary judgment motion on June 29, 1984. In this decision, I found that, as a permanent part-time medical employee of the United States Veterans Administration, plaintiff was not entitled to notice and a hearing before his hours and clinical privileges were reduced. See 38 U.S.C. §§ 4110(a), 4114(a)(1)(A). This decision was affirmed by summary order by the Second Circuit on December 31, 1984.

Plaintiff now brings the instant suit following his discharge from employment in August of 1984. He has also filed a subsequent lawsuit, CIV-86-433C, alleging that his termination was based on religion and in retaliation for his filing of a complaint with the Equal Employment Opportunity Commission EEOC. In this latter suit, plaintiff further alleges that the reduction of his hours, as discussed in CIV-83-1451C, was based on religion.

In defendants' moving papers, they argue that the instant suit should be dismissed on the grounds of res judicata and collateral estoppel (Item 5, pp. 3-10). According to defendants, the first lawsuit filed by plaintiff Balderman essentially revolved around one issue: "the rights that are accorded to a professional non-civil service VA employee when his employment status is converted from full-time to part-time." Id., p. 4. Further, defendants contend that plaintiff is bound "both as to those grounds or issues ... not actually raised and decided in that action." Saylor v. Lindsley, 391 F.2d 965, 968 (2d Cir.1968). Defendants say that because plaintiff "had every opportunity" to raise his claim that defendants failed to follow applicable VA procedures in his conversion from full-time to part-time in 1981 in his first lawsuit, his failure to do so "forbids him from raising such an argument both now and at any future time." Item 5, p. 7.

I disagree. As plaintiff's attorney points out in his memorandum of law (Item 8), the issue of plaintiff's conversion from full to part-time in 1981, as well as the issue of plaintiff's part-time status, was never discussed in the context of earlier litigation before this court, despite defendants' suggestions to the contrary. Instead, plaintiff simply alleged that he was part-time in his original complaint, and this assertion was not disputed by defendants. Moreover, plaintiff points out that the termination which is the subject of his second suit occurred approximately 40 days after judgment was entered in plaintiff's first action. Given all of the above, defendants' motion to dismiss on res judicata grounds is denied. I also find defendants' collateral estoppel argument without merit in the context of this case and, therefore, it must also be denied.

Propriety of Plaintiff's Conversion from Full-Time to Part Time in 1981

As is described in the affidavit of plaintiff Samuel Balderman (Item 7), in June of 1981, plaintiff requested and was granted a change from full to part-time permanent employment with the defendant Veterans Administration so that, as an Assistant Professor of Surgery at the State University of New York at Buffalo Medical School, he would "increase his availability for university related activities at S.U.N.Y. affiliated hospitals." Id. at ¶ 5. As is set out in Exhibit B to plaintiff's affidavit, plaintiff was clearly informed by defendants that, effective with this conversion to part-time employment, plaintiff's salary, life insurance benefits, retirement benefits, and leave credits would be reduced. However, plaintiff says that he was not informed that his conversion could result in any loss or diminution of rights, privileges, or job security (Item 7, Exhs. B and C). Plaintiff now argues that, because the defendants failed to comply with the proper conversion procedures by not advising him of a loss of job security with his acceptance of part-time employment, his part-time appointment was never "properly effected." Accordingly, plaintiff argues that he retained the seniority and other substantive and procedural rights that he had obtained prior to the conversion (Item 7, Exh. D). Moreover, plaintiff says that he was not aware of the regulations concerning "conversions" until mid-August 1984 and that, if he had known that a conversion to part-time would result in the loss of job security and retention status and a forfeiture of procedural rights, he would definitely not have requested or accepted the conversion. Item 7, ¶ 22; Item 8, pp. 19-26. See VA Manual, Part II MP-5, Chapter 2, ¶ 11(a).

Plaintiff says that this regulation requires that an employee to be converted must be advised in writing of the conditions of employment, including all lesser rights and benefits accompanying such new appointment. Plaintiff says that this regulation undoubtedly contemplates advising an employee of changes in non-monetary rights, such as seniority, as well as financial benefits. See also Item 12, pp. 5-9. Accordingly, plaintiff says defendants' argument to the contrary robs the regulation of its intended substance.

In response, defendants argue that they fully complied with all applicable VA regulations when they advised plaintiff of the consequences of his conversion from full-time to part-time employment. More particularly, defendants say, contrary to plaintiff's position, that they complied with VA Manual, MP-5, Chapter 2, ¶ 11(a). This states:

Conversions to another appointment under 38 U.S.C. Chap. 73, giving employees 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.

Defendants say that, while the broad wording of the regulations does not stipulate exactly what must be contained in the written advisement to the employee, the letter from Robert Westfall attached to plaintiff's affidavit (Item 7, Exh. B) is clearly sufficient for these purposes. Even if this court determines that defendants did not fully comply with the notice requirements described in the regulations, defendants say plaintiff should not be allowed to retain full-time status now. Defendants say that, in choosing to become a part-time employee, plaintiff relinquished certain benefits — including his 38 U.S.C. § 4110 rights and benefits — while gaining other and different benefits, especially the right to carry on an "outside practice." Cf., 38 U.S.C. § 4108; VA Manual MP-5, Part II, Ch. 13, ¶ 6(a); Item 5, Exh. C., affidavit of Dr. Joseph Caruana. Defendants assert that because plaintiff initiated the conversion from full to part-time, he should not be permitted to read the language of the regulations broadly in order to avoid the consequences of his own voluntary action.

In their reply papers (Items 13-16), defendants note that, in addition to the letter from Robert Westfall received by plaintiff regarding his conversion to part-time employment, plaintiff also signed a statement which stated: "I do understand all of the conditions, including the loss of benefits of converting to part-time employment" at that time. See Item 16, Exh. A, p. 102.

As all parties acknowledge, there are no cases which directly discuss VA Manual, MP-5, Chapter 2, ¶ 11(a), and what the term "conditions of employment" means. Although plaintiff was clearly informed about the reduction of salary and other benefits which would accompany his conversion from full to part-time, he was never told that this conversion would make him ineligible for a hearing or would affect his job security in the event of cutbacks.

Notwithstanding the above, defendants cite the case of Nataraj v. United States, 85-CIV-5120 (D.N.J.1985), as support for their position. In that case, plaintiff Nataraj sought declaratory and injunctive relief as well as damages, alleging that she was a full-time employee of the Veterans Administration within the meaning of 38 U.S.C. § 4110. As is the case here, the Veterans Administration opposed this argument and said that plaintiff was clearly a part-time employee and, as such, was properly terminated without cause on two weeks' notice. 38 U.S.C. § 4114.

In coming to its decision in Nataraj, the district court found that, on or about April 15, 1984, plaintiff was granted a change to part-time status pursuant to a request she had made approximately one month before. See Nataraj v. United States, supra at Exh. I. The court also found that, thereafter, Dr. Nataraj received various written and oral notifications regarding her status as a temporary medical employee and the consequences of this status, specially in the area of compensation, leave, and insurance benefits, as well as vacation and hospitalization. Id. at p. 4. However, as in the instant case, Dr. Nataraj did not receive any express notification regarding her entitlement to a hearing upon termination. Id. at pp. 4-5.

Based on these facts, the district court in Nataraj rejected plaintiff's argument that she was entitled to a hearing prior to termination and denied her application for relief. In part, it said:

As a result of these events in March and April, 1984, it is entirely clear that plaintiff knew that her status had been altered beyond a mere reduction in hours. She knew that her status had been changed from a full-time to a part-time employment. This is evident not only from Exhibits I and II annexed but also upon all subsequent personnel forms ... which contain

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