Boyle v. United States

• Decision Date: 14 May 1975
• Docket Number: 98-73.,No. 97-73,97-73
• Parties: Donald J. BOYLE and Kathleen S. Paasch v. The UNITED STATES.
• Court: U.S. Claims Court

515 F.2d 1397

Donald J. BOYLE and Kathleen S. Paasch v. The UNITED STATES.

Nos. 97-73, 98-73.

United States Court of Claims.

May 14, 1975.

David Rein, Washington, D. C., atty. of record, for plaintiffs.

Donnie Hoover, Washington, D. C., with whom was Asst. Atty. Gen. Carla A. Hills, New York City. Leslie H. Wiesenfelder, Washington, D. C., of counsel.

Before COWEN, Chief Judge, DURFEE, Senior Judge, and NICHOLS, Judge.

ON PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

DURFEE, Senior Judge.

This civilian pay case involves the dismissal of two historians, GS-11, from their employment in the Joint Secretariat of the Joint Chiefs of Staff, Department of Defense. Plaintiffs unsuccessfully challenged their discharges in an appeal to the Civil Service Commission. Having exhausted their administrative remedies, they jointly petition this court to reinstate them in their former positions and to award them back pay. We have jurisdiction under 28 U.S.C. § 1491. The case is before us on the parties' motions for summary judgment since the pertinent and controlling facts are not in dispute.

Donald J. Boyle commenced employment with the Government as an historian, GS-9, on May 27, 1968; he was promoted to grade GS-11 on June 1, 1969, and was given an increase within grade on May 31, 1970. Kathleen S. Paasch started her employment with the Government as an historian, GS-7, on November 14, 1966; she was advanced to grade GS-9 on November 19, 1967, and to grade GS-11 on December 1, 1968, and was given increases within grade on November 30, 1969, and again on December 13, 1970. Both Boyle and Paasch were engaged, along with others in the Historical Division, in the preparation of a multi-volume history of the Joint Chiefs of Staff.

At some point in time Boyle and Paasch became discontented with the conditions under which they were working, although the origins of their dissatisfaction are not entirely clear. Plaintiffs were primarily troubled about their work relationship with the senior historians of the Historical Division. Both of them felt that their assignments had been poorly planned and delineated, and on several occasions they registered the complaint that they were receiving insufficient guidance and inadequate supervision from their overseers. On October 9, 1970, Boyle and Paasch jointly submitted a request for a desk audit, the procedure ordinarily employed for determining whether or not a civilian employee's position is properly classified under Civil Service Commission position classification standards. It was plaintiff Paasch's hope that the requested audit would "verify that the junior-senior arrangement as practiced in the Histories Branch was at best a fiction and actually constituted mismanagement." According to plaintiff Boyle, the October 1970 desk audit was a "legitimate tool * * to determine whether or not I, indeed, was working at the level beyond my position description, GS-11." The results of the requested desk audit were handed down and transmitted to plaintiffs by a memorandum, dated November 4, 1970; it was concluded that plaintiffs' positions were correctly classified as Historian, GS-11.

Boyle and Paasch continued to express their dissatisfaction over the imbalance which allegedly prevailed in their department. While plaintiffs' complaints often lack specificity — so that the precise nature of the dispute with management is somewhat unclear — there is a recurring theme which can be gleaned from an investigation of the letters, memoranda and other evidence in the record: plaintiffs were of the opinion that management (i. e., the senior historians) had failed to establish full and effective control and direction over the work in the Historical Division; it was plaintiffs' belief that management practices and procedures rendered it impossible for them to attain professional standards. It will be observed that plaintiffs did not at any time file a formal grievance against their supervisors in accordance with appropriate Civil Service Commission regulations.

The controversy between plaintiffs and their supervisors had a serious impact upon plaintiffs' work efficiency and productivity. Plaintiffs' achievement level dropped, and they began showing little progress — or no progress at all — in the performance of their assigned tasks. Boyle and Paasch generally attributed their lack of progress to their frustrations and to their "low morale"; they were dissatisfied with the results of the October 1970 desk audit, and with the "sluggish" investigation and disposition of their complaints and grievances. It appears that plaintiffs were spending a considerable amount of duty time on aspects of their grievances, and Boyle in fact testified that the drafting and redrafting of complaints interfered with his work. Plaintiffs also claim that certain personnel actions involving them — which they categorize as acts of harassment and reprisal — had an adverse impact upon their morale and upon their ability to carry out their work assignments. The first personnel action, in the spring of 1971, as the denial of Boyle's within-grade salary increase. The agency had determined that a step increase could not be justified in light of Boyle's inadequate progress on his assigned duties. Another personnel action which is claimed to have unfavorably influenced plaintiffs' morale was the institution of a six-month trial period of assignments at the GS-12 level. General Bratton, a Chief Supervisor of the Historical Division, advised plaintiffs, on March 2, 1971, as follows: "* * * to provide you with an additional opportunity to demonstrate your qualifications for promotion to the next higher grade I am directing the Chief, Historical Division, to give you a six-months trial period on an assignment wherein the work required, in quantity and quality, will b at the GS-12 level, although the degree of supervision and guidance given will be such as to keep the grade at the level of GS-11." Evidently, plaintiffs did not take General Bratton at his word, and they did not view this assignment as an opportunity for advancement; rather, they believed that the trial period at the GS-12 level was another act of harassment and reprisal.

Plaintiffs' work output did not improve to a level of acceptability. It was ultimately management's determination that Boyle and Paasch should be terminated for the good of the service. On July 13, 1971, Boyle received a Notice of Proposed Removal "for failure to perform assigned duties."¹ The notice, which was signed by General Bratton, reviewed and detailed the circumstances surrounding plaintiff's assignments and his performance (or lack thereof); it stated that plaintiff had failed to complete and submit assignments within the prescribed deadlines, and it alleged that Boyle was not applying himself to his work to the extent required of employees in his position. Plaintiff was advised that he had an opportunity to reply to the Notice of Proposed Removal by July 26, 1971, and that a final decision as to his termination would be made after that date. By memorandum of July 16, 1971, Boyle requested the General Counsel of the Department of Defense to declare the July 13th proposal null and void, and plaintiff notified General Bratton on July 26th that he would defer any response to the notice of removal until his appeal to the General Counsel was decided. General Bratton thereupon informed Boyle, on July 27, 1971, that a requested ruling from the General Counsel could not extend the July 26th deadline for reply; however, General Bratton stated that he would give consideration to any verbal or written reply presented by plaintiff before the close of business on July 29, 1971. Boyle did not respond by July 29th, or thereafter, and on August 6, 1971, he received a final notice removing him from his position, effective August 13, 1971.

On July 15, 1971, Paasch received her Notice of Proposed Removal "for failure to perform assigned duties." The letter, also signed by General Bratton, stated that she was not applying herself to her work, and that she had accordingly failed to complete and submit her assignments. It was noted that despite supervisory urgings and admonitions, Paasch had consistently reported, in recent months, no progress on her projects. Paasch responded to the notice on July 30, 1971. On August 11, 1971, she received final notice of removal, effective August 18, 1971.

Both of the plaintiffs appealed their removals to the Civil Service Commission. They requested that their appeals be heard simultaneously since the same issues, principles and materials were involved. A Hearing Examiner was assigned to both cases, and proceedings were conducted on November 18, 19 and 22, 1971. The reports of the Appeals Examining Office were issued on January 28, 1972, in which detailed findings of fact were made; it was recommended that the agency's decision to remove plaintiffs be sustained. The Appeals Examining Office grounded its recommendation as to Boyle's removal upon the following particular findings:

An employee is expected to perform and accomplish a reasonable day's work on his assigned duties for each day's pay that he receives. It is clearly evident that Mr. Boyle, by his own admission, performed almost no work on his assigned duties from the beginning of January 1971 to July 13, 1971, the date of the advance notice, a period of about six (6) months.

* * * * * *

Rather than pursue his dissatisfaction with management through the usual appellate and grievance channels, it appears that Mr. Boyle decided to embark upon a different course of action i. e.,—not perform work, in order to focus attention on his dissatisfactions.

From our review of the numerous and lengthy communications in file carrying Mr. Boyle's name as author or co-author, it appears that he was devoting all his efforts and energies towards focusing attention on his dissatisfactions

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