Chiriaco v. United States, Civ. A. No. 1210.

• Court: U.S. District Court — Northern District of Alabama
• Writing for the Court: GROOMS
• Citation: 235 F. Supp. 850
• Docket Number: Civ. A. No. 1210.
• Decision Date: 06 September 1963
• Parties: Charles F. CHIRIACO, Plaintiff, v. UNITED STATES of America, J. W. Macy, Chairman, F. J. Lawton, R. E. Hampton, Commissioners, United States Civil Service Commission, L. B. Johnson, Chairman, The President's Committee on Equal Employment Opportunity (formerly "The President's Committee on Government Employment Policy"), and Tennessee Valley Authority, Defendants.

235 F. Supp. 850

Charles F. CHIRIACO, Plaintiff,
v.
UNITED STATES of America, J. W. Macy, Chairman, F. J. Lawton, R. E. Hampton, Commissioners, United States Civil Service Commission, L. B. Johnson, Chairman, The President's Committee on Equal Employment Opportunity (formerly "The President's Committee on Government Employment Policy"), and Tennessee Valley Authority, Defendants.

Civ. A. No. 1210.

United States District Court N. D. Alabama, Northwestern Division.

September 6, 1963.

235 F. Supp. 851

No appearance for plaintiff.

Charles J. McCarthy, Gen. Counsel, Thomas A. Pedersen, Asst. Gen. Counsel, and R. Lynn Seeber, Atty., T.V.A., Knoxville, Tenn., and Macon L. Weaver, U. S. Atty., Birmingham, Ala., for defendants.

GROOMS, District Judge.

This cause came on to be tried before the Court without a jury on April 18 and 19, 1963, and was submitted for final judgment of the Court upon the pleadings, proof, and briefs of the parties, from all of which the Court makes the following determinations:

FINDINGS OF FACT

1. In 1959 plaintiff was employed by the defendant Tennessee Valley Authority (hereinafter called "TVA") as a clerk-typist at the Colbert Steam Plant in Colbert County, Alabama, at an annual salary of $4,160.

2. On October 5, 1959, plaintiff requested in writing that Minor Graves, Superintendent of TVA's Colbert Steam Plant, grant him an indefinite period of leave without pay. Mr. Graves disapproved this request in writing on that same day. Thereafter, at approximately 2 p. m. on October 5, 1959, plaintiff left the Colbert Steam Plant without permission and remained absent from his job without permission up to and including October 16, 1959.

3. On October 16, 1959, Mr. Graves issued a notice proposing to terminate plaintiff. This notice was based upon three grounds — plaintiff's unauthorized absence from work, plaintiff's tardiness in reporting to work, and plaintiff's failure to complete assignments within a reasonable time. The notice gave plaintiff five days in which to notify TVA that he planned to answer the charges. Plaintiff did not so notify TVA and did not make any answer to the charges. On October 29, 1959, Mr. Graves forwarded plaintiff a decision that plaintiff would be terminated effective November 20, 1959.

4. Plaintiff made a timely appeal from this termination action to the Civil Service Commission under the provisions of the Veterans' Preference Act. A hearing was held, after which, on August 22, 1960, the Fifth United States Civil Service Region rendered a decision which affirmed TVA's termination of the plaintiff upon the basis of the unauthorized absence and the tardiness charges. Plaintiff appealed to the Commission's Board of Appeals and Review in Washington, D. C., and the Board affirmed TVA's termination of the plaintiff in a decision dated December 7, 1960.

5. On October 24, 1959, plaintiff wrote a letter to the President's Committee on Government Employment Policy in which he requested that the President's Committee accept a direct appeal from him and conduct an investigation concerning the termination action. The President's Committee replied in a letter dated November 10, 1959, stating that it could not accept such a direct appeal and that plaintiff would have to make the appeal, and supply the necessary information concerning his appeal, to J. H. Daves, TVA's Employment Policy Officer. Plaintiff never communicated with Mr. Daves concerning an appeal from the termination action.

6. On December 20, 1960, and February 1, 1961, plaintiff wrote letters to the President's Committee again requesting

235 F. Supp. 852

it to accept his appeal from the termination action without referring the matter to TVA. The President's Committee replied to these requests by letters dated January 4, 1961, and February 24, 1961, repeating that such a direct appeal could not be accepted by the President's Committee and that, in any event, the time for filing an appeal had expired ten days after November 20, 1959, the effective date of the termination

7. Plaintiff continued to correspond with the Civil Service Commission and with the President's Committee during 1961, requesting them to reconsider their decisions. The last item of this correspondence was a letter to plaintiff from the Civil Service Commission on September 13, 1961, which stated that "The decision of the Board dated December 7, 1960, remains as the final decision of the Commission and your administrative remedies within the Commission were thereby exhausted."

8. On June 25, 1959, plaintiff filed an appeal under TVA's grievance procedure from a service evaluation report dated June 18, 1959, which stated that the quantity of his work was not adequate. A hearing was held and on September 11, 1959, Mr. C. L....