Diggin v. United States
Decision Date | 23 September 1981 |
Docket Number | No. 583-79C.,583-79C. |
Citation | 661 F.2d 174 |
Parties | Daniel R. DIGGIN v. The UNITED STATES. |
Court | U.S. Claims Court |
John I. Heise, Jr., Silver Spring, Md., atty. of record, for plaintiff. John P. Rhody, Jr., Silver Spring, Md., of counsel.
John W. Showalter, Washington, D. C., with whom was Acting Asst. Atty. Gen., Thomas S. Martin, Washington, D. C., for defendant.
Before DAVIS, KASHIWA and SMITH, Judges.
ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT
This civilian pay case is before the court on the parties' cross motions for summary judgment. After consideration of the briefs and oral argument, for the reasons discussed below, we grant defendant's cross motion, deny plaintiff's motion, and dismiss the petition.
Plaintiff, a civilian employee of the Department of the Army, challenges his demotion from the position of Personnel Staffing Specialist, GS-0212-11, to the position of Tools and Parts Attendant, WG-6904-5/5. On September 1, 1974, plaintiff was promoted to the position at issue and later in the fall was permanently assigned to the Recruitment and Placement Branch of the Civilian Personnel Division, Directorate of Personnel and Community Activities, Fort Meade, Maryland. This Branch was responsible for staffing civilian employees in various entities at Fort Meade.
Depending on the party, plaintiff's problems either began immediately or, rather mysteriously, dramatically came to light approximately 3 months after his performance was rated "outstanding and excellent" on March 15, 1976. On June 25, 1976, plaintiff received a notice of consideration of withholding the within-grade increase. That was followed by a letter of warning from plaintiff's supervisor, Ms. Sneed, dated July 1, 1976. The letter of warning served as a formal notice to plaintiff that he allegedly failed and continued to fail to satisfy the performance requirements of his position. Plaintiff was given a 90-day period to meet the performance standards (July 20-October 26, 1976, later extended to December 16, 1976).
At the conclusion of this period, plaintiff's performance allegedly continued to be unsatisfactory for his position. Hence, on February 22, 1977, plaintiff received a letter entitled "Notice of Proposed Adverse Action — Separation for Inefficiency." Details of facts in support of the proposed action were encompassed in this notice.1 In the alternative, the notice presented plaintiff with the option of accepting a position as a Tools and Parts Attendant, WG-6904-5/5, earning $6.79 per hour (also at Fort Meade).
Plaintiff accepted under protest the option of demotion on March 21, 1977. Thereafter, plaintiff, through counsel, submitted a written reply to the proposed action. After considering plaintiff's written and oral replies, the demotion was sustained by Colonel Meredith on April 27, 1977. An appeal was taken to the Federal Employees Appeals Authority (FEAA) and after a hearing on February 8, 9 and 10, 1978, the FEAA sustained elements (2) quantity and timeliness and (7) supervision and administration and upheld the demotion. The Office of Appeals, Merit Systems Protection Board, denied plaintiff's request for a review of the FEAA decision.
Our review of civilian pay cases is very limited. As we recently stated in Brousseau v. United States, 226 Ct.Cl. 199, ___, 640 F.2d 1235, 1241 (1981), quoting, Giles v. United States, 213 Ct.Cl. 602, 605, 553 F.2d 647, 649 (1977):
It is long settled that "in considering these adverse personnel actions our review is limited to ascertaining that the final administrative appellate decision was in conformance with the Constitution, statutes, and regulations, was not arbitrary or capricious or taken in bad faith, and was supported by substantial evidence. * * *"
And the good faith of those involved in bringing the action is presumed. Id.; Wathen v. United States, 208 Ct.Cl. 342, 527 F.2d 1191 (1975), cert. denied, 429 U.S. 821, 97 S.Ct. 69, 50 L.Ed.2d 82 (1976).
The primary issue before us is whether there is substantial evidence supporting the decision of the FEAA. Before we analyze that issue, however, we choose to discuss the somewhat subsidiary questions posed by plaintiff.
A. The facts disclose the following sequence: On March 15, 1976, plaintiff received a rating of "outstanding and excellent" by his supervisor, Eileen Sneed. Within less than 3 months, the same supervisor notified him of a possible withholding of his within-grade step increase and, subsequently, within the year, proposed removing him. We are not left to fend for ourselves and ferret out the facts of this abrupt change in circumstances, however, for the defendant confesses and Ms. Sneed explains she intentionally rated the plaintiff high to, as "many supervisors in the Government" do, "pass an unsatisfactory employee on to another unsuspecting employer." Transcript part II, pp. 126-127 (Tr.). While such conduct on the part of Ms. Sneed amounts to a subversion of the procedures established for removing unsatisfactory employees, her conduct is not sufficient to render the action taken against plaintiff arbitrary or capricious.
We have held elsewhere that a performance review rating and the removal of an employee are separate actions. Schaefer v. United States, 224 Ct.Cl. 541, ___, 633 F.2d 945, 948 (1980); Armstrong v. United States, 186 Ct.Cl. 539, 544-545, 405 F.2d 1275, 1278-1279, cert. denied, 395 U.S. 934, 89 S.Ct. 1997, 23 L.Ed.2d 449 (1969). Thus, there is no reason for an employee to receive an unsatisfactory rating as a prerequisite for dismissal. Or, conversely, the fact plaintiff received an "outstanding and excellent" rating shortly before his proposed removal does not affect the correctness of defendant's removal action. Schaefer v. United States, 224 Ct.Cl. at ___, 633 F.2d at 948; Armstrong v. United States, 186 Ct.Cl. at 545, 405 F.2d at 1279. Nor does this demonstrate, without additional facts, that plaintiff was conspired against.2
B. Plaintiff next alleges that the oral reply officer, Colonel Meredith, "was obviously predisposed to issue a decision against plaintiff," and, hence, was improperly designated as reply officer. This argument consisting almost entirely of suppositions and conclusory statements without any convincing factual backup is likewise without merit.
Briefly, Colonel Meredith had earlier sustained the denial of plaintiff's within-grade increase. Approximately 3 months later he was designated, contrary to plaintiff's protests, as the oral reply officer in the demotion proceeding. Thus, plaintiff seems to be arguing that by hearing a prior action an official acquires a bias (or at least presumptively does) which renders such official's decision inherently "grossly unfair." Again, the evidence relied on by plaintiff is paltry at best.
We feel the FEAA properly considered this issue. The FEAA correctly found that the regulations did not prohibit Colonel Meredith from acting as oral reply officer. As such, without some substantiation of this bias charge the FEAA quite properly found no defect with Colonel Meredith's actions. We, too, are not persuaded any bias existed on the part of Colonel Meredith. This is especially true because when we review a charge of bias against government officials, "It is a well-established rule that they are presumed to act in good faith in the performance of their duties." Schaefer v. United States, 224 Ct.Cl. at ___, 633 F.2d at 949; see Kalvar Corp. v. United States, 211 Ct.Cl. 192, 198, 543 F.2d 1298, 1301-1302 (1976), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 89 (1977). And we require "well-nigh irrefragable proof" to induce us to abandon this presumption. Id. Plaintiff has not even come close to approaching this standard.
Accordingly, our review of the FEAA decision and the record reveals nothing to substantiate plaintiff's allegations of bias and we therefore reject plaintiff's arguments on this issue.3
We now turn to the key issue of this case, viz., whether there was substantial evidence to support the demotion of plaintiff.
There were seven charges against plaintiff, see note 1, supra, two of which were sustained by the FEAA: (1) quantity and timeliness and (2) supervision and administration. Plaintiff's chief contention is that the decision of the FEAA erroneously rested on uncorroborated hearsay despite plaintiff's contrary testimony and documentation and that the burden was improperly shifted by the FEAA to plaintiff to prove his competence.
The three major issues raised in this question are (1) whether the alleged hearsay evidence can constitute substantial evidence, (2) whether the defendant adequately countered the evidence put forward on plaintiff's behalf, and (3) whether the FEAA impermissibly shifted the burden of proof to plaintiff.
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