Coledanchise v. Macy, Civ. A. No. 66-199.

• Court: United States District Courts. 4th Circuit. United States District Court of South Carolina
• Writing for the Court: SIMONS
• Citation: 265 F. Supp. 154
• Parties: Miriam R. COLEDANCHISE, Plaintiff, v. Honorable John W. MACY, Jr., Chairman, Civil Service Commission, Honorable Ludwig J. Andolsen, Commissioner, and Honorable Robert E. Hampton, Commissioner, Defendants.
• Docket Number: Civ. A. No. 66-199.
• Decision Date: 07 March 1967

265 F. Supp. 154

Miriam R. COLEDANCHISE, Plaintiff,
v.
Honorable John W. MACY, Jr., Chairman, Civil Service Commission, Honorable Ludwig J. Andolsen, Commissioner, and Honorable Robert E. Hampton, Commissioner, Defendants.

Civ. A. No. 66-199.

United States District Court D. South Carolina, Charleston Division.

March 7, 1967.

265 F. Supp. 155

Ellis I. Kahn and Marvin I. Oberman, Charleston, S. C., for plaintiff.

Terrell L. Glenn, U. S. Atty., by Thomas P. Simpson, Asst. U. S. Atty., for defendants.

ORDER

SIMONS, District Judge.

This matter is before the court on motions for summary judgment filed by defendants and plaintiff. Plaintiff's complaint invokes jurisdiction under 28 U.S.C. § 1361 and § 1391, and alleges in substance that plaintiff, a resident of this judicial district and a former civil service employee, was employed at the United States Marine Recruit Depot at Parris Island, South Carolina; that her employment was controlled and regulated by the rules, regulations, policies and acts of the United States Civil Service Commission; and that she was wrongfully discharged from her position. Under 28 U.S.C. § 1361 this court has original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States, or any agency thereof, to perform a duty owed to plaintiff. See Rule 81(b) of the Federal Rules of Civil Procedure. Under 28 U.S.C. § 1391(e) venue lies in the judicial district in which plaintiff resides.

HISTORY OF THE CASE

Plaintiff, a career civil service employee¹ who was born December 7, 1926, commenced government employment in 1958, and was separated from government service on March 21, 1965 for inefficiency and the good of the service, after she had worked approximately six years and seven months.

Plaintiff was first employed at the Marine Corps Recruit Depot at Parris Island, South Carolina, on July 25, 1960 as an Accounts Maintenance Clerk (typing) at a grade GS-4. For her services from January 16 to July 16, 1961 she was commended for sustained superior performance and given a special award of $100. On February 2, 1962 she was given a cash award for a beneficial suggestion in an incentive awards program. On March 22, 1962 she was recipient of a cash award of $35.00 in the same program. On June 24, 1962 she was promoted to Personnel Clerk (training; typing) at a grade GS-5. She received another cash award January 25, 1963 of $25.00 in the incentive awards program. Nevertheless, on June 17, 1963 she was denied a within-grade salary increase because her work was not at an acceptable level of competence. This decision was made by an immediate supervisor and concurred in at the next supervisory level. Thereafter, she appealed the performance rating to the Depot's Performance Rating Board on August 26, 1963, and to the Commission's Statutory Board of Review on September 26, 1963. Hearings were held in each instance, resulting in adverse decisions. She was granted a salary increase on December 22, 1963 upon a determination that she had reached an acceptable level of competence.

Following an audit in April 1964 by a Navy Department Area Wage and Classification Office Representative, her Personnel Clerk position was downgraded to that of Clerk-Typist at grade GS-3. Plaintiff was given the required advance notice and was offered placement in appropriate vacant positions above the GS-3 level. Since there were no vacant GS-5 positions, she elected placement in one of two vacant GS-4 positions for which she was qualified. She, therefore, on June 7, 1964 commenced working as a Financial Accounting Clerk (typing) at grade GS-4.

On November 17, 1964 plaintiff's immediate supervisor in the Cost Accounting Unit, after prolonged individual supervision, informed her by letter that

265 F. Supp. 156

her work performance was unsatisfactory in that: (1) She had failed to mail particular bills on time in accordance with her duties; (2) She had failed to make several accounting entries which were particularly enumerated; (3) She failed to reconcile accounts when they were closed; (4) She made numerous errors in preparation of vouchers; and (5) She was unable to meet the deadline established for this work. Plaintiff's supervisor warned that unless her work improved within sixty days she would recommend to the Accounting Officer that she be removed from her position for "inefficiency"

On February 9, 1965 plaintiff received a letter from the Commanding General of the Depot notifying her of her removal from her position on March 13, 1965 because of unsatisfactory performance of assigned duties, as set forth in eighteen specifications of acts or omissions. She was accorded the opportunity to reply to these charges, with the right to an evidentiary hearing at which she could present such witnesses as she desired.

On February 11, 1965 plaintiff notified the Commanding General of her desire to answer orally to the charges against her. On February 15, 1965 she met with the Commanding General to make personal reply to such charges. On February 22, 1965 she made written request for a hearing on her proposed removal, which was granted by the Commanding General on February 23, 1965.

The hearing was first set for February 25, 1965. She was advised that she could be represented by any one person, with the right to call a reasonable number of witnesses, not exceeding five. On February 24, 1965 her counsel requested a two week postponement of the hearing, and in accordance therewith it was rescheduled for March 4th.

On March 2, 1965 the hearing was again postponed to March 10, the first date her attorney advised that he would be available to represent plaintiff at the hearing. She had previously engaged Paul N. Uricchio, Jr., Esquire, to represent her; however, he did not appear at the hearing on March 10. Marvin I. Oberman, Esquire, appeared in her behalf and represented her. Introduced in evidence were certain documents prepared by plaintiff, under the direction of her immediate supervisor, Mrs. Joy G. Meyer, who was present and testified at the hearing. The work standards for the job held by plaintiff were also admitted into evidence without objection from plaintiff.

The Hearing Advisory Committee, composed of a Marine Corps Officer and two Civil Service employees, in their report dated March 16, 1965, found that eight of the specifications against plaintiff had been proved, four had not been proved, and six had been uncontested. The Committee recommended that she be removed for inefficiency and unsatisfactory performance of assigned duties. It further recommended that (in view of plaintiff's own statement in the record that she was not sure that her health or emotional condition would permit her to perform satisfactorily the duties of a similar position) she not be placed in any other position at this Depot.

By letter dated March 18, 1965 the Commanding General, in reviewing the Committee's findings, held that six of the specifications were fully substantiated, that three were fully documented although the circumstances leading to discovery and correction of these errors were not established, that three of the specifications were not proven, and that the last six specifications were also established and were not contested by plaintiff. He advised that she would be removed from her position on March 21, 1965 and that there was no available position in which her services could reasonably be expected to be satisfactory. On March 21 she was notified of her separation effective as of that date.

On March 29 plaintiff filed notice of appeal to the Commandant of the Marine Corps. On May 13 the Commandant affirmed the action of the Commanding General in discharging plaintiff. On plaintiff's further appeal to the Regional

265 F. Supp. 157

Appeals Examiner of the United States Civil Service Commission in Atlanta, Georgia, the decision of the Commandant of the Marine Corps was reversed on July 12, 1965. The Appeals Examiner held that the appeal came within the purview of Sub-part "B", Part 752 of the Civil Service Regulations, and that the procedural requirements commanded thereby, such as notice, etc., had been complied with. The Appeals Examiner found that plaintiff's contentions that her hearing was improperly held, and that her immediate supervisor was not present as a witness were not sustained by the record. Since the Commanding General and Commandant had determined that only twelve of the specifications had been proved or sustained, the Appeals Examiner did not consider the other six, namely specifications 1, 2, 4, 5, 7 and 8. As to such twelve specifications, the Appeals Examiner found that only four were sustained by the evidence, and that they were insufficient in view of plaintiff's prior record...