Burton v. United States

• Decision Date: 13 December 1968
• Docket Number: No. 246-67.,246-67.
• Citation: 186 Ct. Cl. 172,404 F.2d 365
• Parties: William Clyde BURTON v. The UNITED STATES.
• Court: U.S. Claims Court

186 Ct. Cl. 172, 404 F.2d 365 (1968)

William Clyde BURTON v. The UNITED STATES.

No. 246-67.

United States Court of Claims.

December 13, 1968.

William Clyde Burton, plaintiff, pro se.

James G. Greilsheimer, Washington, D. C., with whom was Asst. Atty. Gen., Edwin L. Weisl, Jr., for defendant, James F. Merow, Washington, D. C., of counsel.

Before COWEN, Chief Judge, LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS, Judges.

ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

NICHOLS, Judge.

This back pay action is before us on defendant's motion for summary judgment. There is no cross-motion. The alternatives therefore are to allow the motion and dismiss the complaint, or to deny the motion and order trial. We allow the motion and dismiss the complaint. We believe there is no triable issue of fact and under the undisputed facts plaintiff is not entitled to recover. The evidence is documentary, including recorded testimony.

Plaintiff, a Negro, following certification by the Civil Service Commission, was appointed an Engineer, SP 9-175, Level 15, with the Engineering Branch, Engineering and Facilities Division, Regional Office, Post Office Department, Philadelphia, Pennsylvania. The action was effective and he entered on duty August 24, 1964. The Regional Office, headed by a Regional Director, is responsible for a three-state region, interposing between the individual post offices and the Department in Washington. It was concerned, among other things, with construction and leasing of post office premises. In this and other field activities of the Department, employees were not graded and classified by law under the familiar GS system and plaintiff's pay in Level 15 was slightly below that of a GS-14.

The position of Chief Engineer became vacant and plaintiff applied for it. At about the same time there arose a dispute as to the exact scope of plaintiff's duties. On March 2, 1966, plaintiff made a written complaint alleging racial discrimination in that he was not allowed to function at the 15 Level as his job description called for. On April 18, 1966, he alleged racial discrimination in that he was not appointed Chief Engineer and that another person less qualified than himself had been placed in the job in an acting capacity.

Under EO 11246, EQUAL EMPLOYMENT OPPORTUNITY, and implementing regulations of the Post Office Department, Part 747 of the United States Postal Manual, the Equal Employment Officer of the Department and his Deputies were to evaluate such complaints and act on them, subject to appellate review in the United States Civil Service Commission. After investigation the Equal Employment Officer, on January 4, 1967, advised plaintiff in writing that his complaints were not substantiated by investigation. Plaintiff's duties, he stated, embraced some of those called for in the job description, and were the same as those previously assigned a Caucasian Engineer at the same level. There could have been no discrimination in filling the Chief Engineer position because it had not been filled. The letter advised plaintiff he could appeal to the Commission's Board of Appeals and Review, but this he did not do. Earlier he and his counsel had refused to continue with a formal hearing after the Deputy Equal Employment Officer had ruled he would not enlarge the scope of the inquiry to cover discriminations other than the two above mentioned. It is clear, therefore, that the administrative remedy was not exhausted, these complaints have been finally adjudicated, and they are not before us for review. Nevertheless, they have a kind of life in this proceeding, as will appear.

On May 19, 1966, Mike E. Chapin, Deputy Director of the Office of Regional Administration, Washington, D. C., wrote plaintiff a letter reading in its entirety as follows:

It has been determined that it is in the best interests of the service that you be permanently assigned to the position of General Engineer, grade GS-14, $14,680 per annum, in the Office of Research and Engineering, Washington, D. C. The effective date of the change is June 1.

This reassignment was elsewhere called a "promotion" because of the pay increase involved. It was done entirely at the initiative of Washington. Mr. Doherty, the Regional Director, testified without contradiction that he had never heard of such a plan until he received an information copy of the above letter. The Washington officials testified they had these considerations in mind: 1. The Washington Office of Research and Engineering was being built up; it needed (and had funds for) 50 to 100 engineers, an occupational category in short supply and unavailable locally, and plaintiff was qualified; there was no one qualified who was already in the employ of Washington headquarters. 2. The Washington officials were aware of a "lack of rapport" between plaintiff and his superiors in Philadelphia, so removal of plaintiff from that scene might make for the good of the service there. 3. The plaintiff possibly needed in his own interest a fresh start in a new environment where he could display his talents to better advantage. This testimony was given on oath before the CSC Regional Appeals Examiner, as will appear. Plaintiff, before us acting pro se, then had competent counsel, who did not attempt, however, to impeach or refute this testimony. Any suspicion as to good faith that might arise from the brusqueness of the letter, the shortness of the notice, and the pendency of the discrimination appeals, must yield before uncontradicted evidence. Plaintiff in opposing the motion here, does not say he has any new evidence on this matter. Chapin indeed displayed his good faith by phoning plaintiff and urging him to come to Washington to see him and ascertain at first hand what was in store for him in the new job. Plaintiff made an appointment but failed to keep it. If he had kept it, his suspicions might have evaporated, or he might have confirmed them and had more than mere suspicion to offer to us here. As things are, it is not Chapin's good faith that shows to disadvantage at this juncture.

Things took their destined course. Plaintiff by letters refused to accept the reassignment. He insisted, as he still insists, that his "tenure" as a civil servant entitled him to take root in Philadelphia; that the expense of disposing of his home and moving his family would be ruinous (although the Post Office Department would have picked up the tab for this at least to the extent the law permitted); that the real purpose of the order was just to continue the scheme of racial discrimination. At the instance of a Congressman, the time was extended to June 20. On that date plaintiff was formally terminated at Philadelphia and entered on the rolls at Washington. As he did not show up there, he was carried as AWOL. On June 29 the Departmental Personnel Director sent him a notice that it was proposed to remove him for failure to accept the Washington assignment. On August 5, the removal was effective.

Plaintiff took the customary appeal to the Civil Service Commission and made two more complaints of racial discrimination; one for the transfer order and one for the separation. Regional Appeals Examiner Niles conducted on October 26, 28, and 31, a Hearing at which consideration of these discrimination complaints were consolidated with the appeal from the adverse action. As stated above, Mr. Burton was represented by counsel, though at times he addressed the examiner pro se.

In the course of the Hearing Mr. Niles made an important ruling which controlled the subsequent history of the case. Plaintiff's counsel wanted to relitigate all the disputes plaintiff had had with the Regional Office right back to the start of his employment. His theory was that an official guilty of discrimination is unlikely to admit it. You had to prove it by a series of acts, or course of conduct over a period of time; things that taken separately might be meaningless, placed together made a picture. The Government counsel was apparently willing to go along with this, on the expectation, no doubt, that the evidence would disclose such an appalling history of insubordination that no tribunal on earth would hold in plaintiff's favor. Mr. Niles, however, said he would not allow plaintiff to introduce evidence so manifestly prejudicial to plaintiff's case. Discrimination in the course of the Philadelphia employment was the subject of another proceeding, not the one before him. He conceded there might be two ways in which this evidence or parts of it might yet come in before him. One was if it should appear the Regional Office had counseled or requested the action to transfer plaintiff. This was foreclosed when uncontradicted evidence showed the action was at headquarters initiative and was as much a surprise to the Regional Director as it was to plaintiff. The second way was the fact the action was based in part on a belief in a "lack of rapport" at the Regional Office between plaintiff and his superiors. He would receive instances of lack of rapport as known to headquarters before they took the action they did. Plaintiff had indeed written directly to headquarters on several occasions, alleging lack of rapport, the substance if not the name, so they possessed partial knowledge. Awareness of other instances could not be imputed to headquarters, and these Mr. Niles excluded.

At the close of the hearing plaintiff's counsel thanked Mr. Niles for conducting it in a fair and impartial manner. From this it may be deduced that he was by this time aware of the chasm Mr. Niles saved him and his client from plunging into.

The CSC Regional Director's decision was that the Agency could and effectively did place plaintiff in the Washington position, even without his consent, and that removal for refusal to report there would be proper if plaintiff persisted in it. However, he thought that the Agency did wrong in reassigning and firing plaintiff while his...