Cunningham v. United States

• Decision Date: 17 April 1970
• Docket Number: No. 433-60.,433-60.
• Citation: 423 F.2d 1379
• Parties: Katherine CUNNINGHAM v. The UNITED STATES.
• Court: U.S. Claims Court

423 F.2d 1379 (1970)

Katherine CUNNINGHAM v. The UNITED STATES.

No. 433-60.

United States Court of Claims.

April 17, 1970.

Katherine Cunningham, pro se.

Katherine H. Johnson, Washington, D. C., with whom was Asst. Atty. Gen. William D. Ruckelshaus, for defendant.

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

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

DURFEE, Judge.

This is a civil pay case in which both sides are moving for summary judgment.

In this pro se case, plaintiff seeks to recover salary and accumulated annual leave from the date of her resignation. She was employed as a mathematician at the Wright Air Development Center, Wright-Patterson Air Force Base, Ohio, from July 1956 until June 12, 1959, the effective date of her resignation. Plaintiff had submitted her written resignation to the Air Force on May 23, 1959, specifying on the standard form provided that "The effective date of my resignation will be 12 June 1959," and with this notation: "To be explained in letter to follow asking for permission to petition headquarters ARDC."

Plaintiff alleges in paragraph 1 of her petition that she "has been deprived of her employment * * * in the Air Research and Development Command, United States Department of the Air Force, for reasons other than for the good of the service, by arbitrary and capricious acts committed in bad faith by the defendant * * * and by defendant's violation of the Veterans' Preference Act of June 27, 1944, as amended (5 U.S.C. Sec. 863); The Air Force Civilian Personnel Manual, AFM 40-1, Section E2.2; applicable Civil Service rules and regulations; and the due process clause of the Fifth Amendment to the Constitution of the United States."

The petition further alleges that about eight hours after signing the resignation, she first became aware of facts which would have in her mind "negated the weight of said immediate duress" which had prompted her resignation. She sought orally to withdraw the resignation. Air Force regulations provided that a resignation could be withdrawn only by the mutual consent of the employee and the Air Force, unless it was due to coercion or undue influence. AF Manual 40-1, Section E2.2. Plaintiff's request was orally denied. She then wrote to the Commanding General, and asked for permission to withdraw her resignation. In this letter of May 25, 1959, she stated that her Branch Chief, Mr. Milton Warshawsky, told her that he was disappointed in her job progress; that she "then did experience great fear" about her job and "because of Mr. Warshawsky's disappointment in me I signed a resignation statement." She stated that later, she realized that she had misunderstood Mr. Warshawsky, and that to resign had not been the proper thing to do, and therefore she withdrew her resignation.

On May 28, 1959, Colonel Theo. V. Prochaska, DCS Personnel Center, wrote to plaintiff, acknowledging her request to withdraw her resignation, and stated as follows:

Chapter AF S1, Air Force Manual 40-1, states that a resignation "may be withdrawn only by mutual agreemen between the Air Force officials concerned and the employee." After due consideration of all factors, it is not considered to the mutual advantage of yourself and the Air Force to withdraw this resignation. You will therefore be separated by voluntary resignation effective 12 June 1959. Emphasis supplied

This denial was dated 14 days before June 12, 1959, the effective date of resignation specified by plaintiff.

At this point, we emphasize that plaintiff was a "preference eligible employee" entitled, to all of the procedural protection afforded by the Veterans' Preference Act, 5 U.S.C. § 7511 (Supp. IV, 1965-68).

On June 6, 1959, plaintiff sent a second letter to the Commanding General, asking for a grievance hearing before a grievance committee, and asserting a number of instances as to conditions of her employment constituting "insuperable duress which could only be reasonably expected to terminate by an act of resignation." She also requested that Wright Air Development Center "be required to present all reasons why her withdrawal of resignation was disallowed * * * and proof * * * for all such reasons," and that she be "reinstated, without prejudice and under more favorable conditions, * * *."

On the same date of June 6, she wrote to the Director of the Sixth U. S. Civil Service Region, asserting the same complaint of duress, and requesting permission to bring the same issues before a Civil Service Board of Appeals.

These two requests each stated in clear and unmistakable import that plaintiff wanted a hearing to show conditions of her employment that constituted "insuperable duress" as the cause of her resignation. The two letters were dated six days before the effective date of her resignation, June 12, 1959.

On June 15, 1959, the Wright Air Development Center wrote to plaintiff acknowledging her letter of June 6, 1959, requesting a grievance hearing before a grievance committee, and advising her that "immediate action will be taken to appoint an ad hoc grievance committee as prescribed in the Air Force Grievance procedure." This committee was appointed and rendered its decision, based upon a review of plaintiff's grievance letter, related correspondence and statements by two of plaintiff's supervisors. The committee concluded that plaintiff's resignation was voluntary and without coercion. In reaching this conclusion, the committee stated that its finding was confirmed by plaintiff's letters of May 25th and June 6th, and accordingly, she had no rights to appeal under the grievance proceedings.

The letter of May 25th may have been indicative of a voluntary resignation, but the letter of June 6th was a request for a hearing, based upon an alleged involuntary resignation obtained by alleged duress, and it was dated six days before the effective date of the resignation.

The Air Force Commander affirmed this decision on June 23rd, concluding "Air Force Manual 40-1, Chapter E-2, stipulates that voluntary resignation terminates any rights to appeal under the grievance procedure" and "no further action will be taken." Noteworthy is the fact that the Air Force relied solely upon its own grievance procedures, and completely ignored the additional procedural protection required under the Veterans' Preference Act; in fact, the Act was not even mentioned by the Air Force.

In answering plaintiff's other appeal to the Civil Service Commission, its Regional Director replied on June 12 rejecting her appeal because the matters submitted for review "are not adverse actions within the meaning of Section 14 of the Veterans' Preference Act or Regulation 9 of the Federal Personnel Manual." Emphasis supplied This finding is based upon the conclusion by the Commission that because plaintiff stated that she had "signed a resignation statement in order to avert further irreparable degradation of * * * her professional standing," this indicated "that the decision to resign was made by you voluntarily." This conclusion, like that of the Air Force, ignored her clear assertion of duress in her request for a hearing on appeal, dated June 6th.

Section 3(a) of the Air Force Regulation (AFM 40-1, Section E2.2 (dated March 1955)) providing for the grievance procedure declared in pertinent part:

(2) The committee is a fact-finding and advisory body. It has one primary purpose, which is to assist the commander in arriving at a prompt and fair decision by making a full and complete evaluation of the evidence in the case; by impartially appraising the evidence; and by reporting to the commander a record of the hearing proceedings, a statement of the committee\'s findings, and its recommendations.

(3) The chairman of the committee will (a) make certain that the hearing is scheduled promptly and conducted in an orderly and expeditious manner and that the regulations governing hearing procedure and order of business are observed; (b) be responsible for the maintenance of necessary records; and (c) assist the committee in making its recommendations to the commander.

We think it clear that this regulation required that the employee be granted a hearing before the grievance committee if he desired one, and that in such a case the committee could not proceed without the participation of the employee. In Miss Cunningham's case, she had clearly demanded a hearing and the right to appear, but the committee nevertheless proceeding in her absence and without her participation. This was a plain violation of the governing regulation which rendered void the findings of the committee and the subsequent determination of the Air Force that the resignation was voluntary. See, e. g., Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957); Piccone v. United States, 407 F.2d 866, 186 Ct.Cl. 752 (1969).

It follows that there was no valid determination by the agency that the resignation was voluntary, and that plaintiff was separated without a procedurally valid determination by the Air Force that her resignation was voluntary.

Under the Veterans' Preference Act, 5 U.S.C. § 7511(2) (Supp. IV, 1965-68) (formerly § 863) the "adverse action" referred to by the Civil Service Commission "means a removal, suspension for more than 30 days, furlough without pay, or reduction in rank or pay." From the record before us, we find that the action of the Air Force in separating her without a proper finding that her resignation was voluntary, and also in refusing to grant her request to withdraw her resignation, dated 18 days before the specified date of the resignation, and her separation effective June 12, 1959, was an "adverse action" taken by the agency that resulted in her "removal" under the Act.

Accordingly, she was entitled, under § 7512 of the Act, to: (1) at least 30 days' advance written notice, * * * stating any and all reasons, specifically and in detail...