Fucik v. United States

• Citation: 655 F.2d 1089
• Decision Date: 29 July 1981
• Docket Number: No. 282-79C.,282-79C.
• Parties: William C. FUCIK v. The UNITED STATES.
• Court: Court of Federal Claims

655 F.2d 1089

William C. FUCIK v. The UNITED STATES.

No. 282-79C.

United States Court of Claims.

July 29, 1981.

COPYRIGHT MATERIAL OMITTED

Robert A. Filpi, Chicago, atty. of record, for plaintiff; Stack & Filpi, Chicago, of counsel.

Colvin W. Grannum, Washington, D. C., with whom was Acting Asst. Atty. Gen. Thomas S. Martin, Washington, D. C., for defendant.

Before COWEN, Senior Judge, and KASHIWA and BENNETT, Judges.

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

BENNETT, Judge, delivered the opinion of the court:

This civilian pay case is before us on cross-motions for summary judgment to review a decision of the Federal Employee Appeals Authority (FEAA) of the Civil Service Commission¹ upholding plaintiff's discharge for being absent without leave for 56 consecutive days.² We deny both motions and remand the case to the Merit Systems Protection Board (the board) for further consideration.

In June 1968, plaintiff joined HUD as the Director of the Planning Branch of the Office of Program Coordination and Services for Region V. This was a GS-15 level position and plaintiff was stationed in Chicago, Illinois. He held that position until mid-1971 when he was appointed to the position of New Communities Liaison Officer for Region V. This was also a GS-15 position located in Chicago.

In June 1974, plaintiff's position was shifted to Washington, D. C., in a reorganization. Plaintiff accepted a GS-14 position as Acting Regional Director of the Federal Insurance Administration in Chicago rather than transfer. Plaintiff's new position was a supervisory one and he held it for about 3 years. In January 1977, Richard Krimm, a HUD administrator, told plaintiff that he was being reassigned to Washington. This apparently came as a surprise to plaintiff. However, in a later conversation with plaintiff in February of that year, Krimm told plaintiff that he was dissatisfied with plaintiff's performance as a supervisor. On April 11, 1977, Krimm sent a memo to J. Robert Hunter, plaintiff's superior, concerning plaintiff's alleged poor performance. Krimm suggested in the memo that, "in lieu of adverse action" being taken against plaintiff, that he be reassigned to a nonsupervisory position as a special assistant to Krimm in Washington. This memo was never made a part of plaintiff's personnel file³ and plaintiff discovered its existence only by accident. On April 12, 1977, Hunter formally reassigned plaintiff to the special assistant position, effective May 9, 1977. The agency did not provide adverse action procedures to plaintiff in connection with this reassignment.

Plaintiff reported for work in Washington on May 9 but complained that it was creating a hardship for him. He was detailed back to Chicago for a period of 30, 60, or 90 days. He actually stayed 48 days and returned to Washington on July 25, 1977. He found that the duties of his new position were insufficient and complained of this. Hunter asked plaintiff to suggest further duties for the position and plaintiff did so. However, on October 17, 1977, plaintiff stopped reporting for work in Washington and returned to Chicago. Krimm twice advised plaintiff to return to work in Washington or else risk adverse action. After plaintiff had been absent without leave for 56 days, HUD proposed to remove him. The decision to remove plaintiff was made by J. Robert Hunter and, after proper notice, he was removed on May 8, 1978.

Plaintiff sought relief during this period through a number of avenues. First, on April 28, 1977, and again on July 20, 1977, he sought relief from the reassignment through HUD grievance procedures. Relief was denied by final decision dated March 3, 1978.⁴ HUD found the reassignment was made in good faith and was not arbitrary or capricious or based on improper determinations. It also found that plaintiff's new position was not a sham or overgraded as plaintiff contended. However, HUD specifically refused to consider plaintiff's argument that the reassignment was a reduction in rank. HUD considered that to be an issue for the Civil Service Commission (CSC).⁵

Plaintiff sought, on September 30, 1977, a CSC audit of the special assistant position to declare it overgraded. On November 21, 1977, the CSC refused on the ground that plaintiff had not worked at the position long enough.

On February 3, 1978, plaintiff appealed to the FEAA on the ground that the reassignment was actually a reduction in rank. On November 16, 1978, the Chicago office of the FEAA denied relief on the ground that there was no reduction in rank since plaintiff's new position was not subordinate to his old position or to a position equivalent to his old position. However, the Chicago office specifically declined to consider whether the special assistant position was overgraded and whether that would cause the reassignment to be a de facto reduction in rank.

Finally, on May 17, 1978, plaintiff appealed his removal to the Washington office of the FEAA. He waived his right to a hearing. The FEAA denied relief. It first rejected plaintiff's contention that his removal was procedurally improper because the same official who had ordered the reassignment, J. Robert Hunter, was the one who decided to remove plaintiff. Turning to the merits, the FEAA found (1) HUD had found the reassignment to be in good faith and proper, and (2) the FEAA Chicago office had found there was no reduction in rank. It then concluded: "Since plaintiff's reasons for believing that his absence from the position of Special Assistant, Washington, D.C. was justified were not sustained by the appropriate appellate authorities, we find the charge of Absence Without Leave from October 17, 1977 to January 9, 1978, is sustained."

Plaintiff timely filed his petition here on July 2, 1979.

Our scope of review in civilian pay cases is well settled. We will set aside administrative action only if it is found to be arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence, without a rational basis, contrary to law, or not in substantial compliance with procedural regulations. Summers v. United States, 648 F.2d 1324 (Ct.Cl.1981); Gaskins v. United States, 652 F.2d 70 (Ct.Cl.1981); Boyle v. United States, 207 Ct.Cl. 27, 34, 515 F.2d 1397, 1401 (1975); Grover v. United States, 200 Ct.Cl. 337, 343 (1973); Morelli v. United States, 177 Ct.Cl. 848, 858 (1966).

Turning to the merits, we note that plaintiff does not contest that he was absent without leave for 56 straight days nor that normally such a charge would suffice as a basis for dismissal. Rather he asserts by way of defense that his reassignment from Chicago was improper and coerced his absence and therefore his removal was improper. Defendant has not contested that such a defense, if proven, would be adequate to set aside a removal, and we will therefore assume for the purposes of this case that it is an adequate defense. The only issue before us, therefore, is whether plaintiff has established his defense.

Plaintiff's arguments that the reassignment was unlawful can be separated into two main but overlapping parts. The first is that the reassignment was unlawful because it was a reduction in rank taken without prescribed procedural requirements. The second is that the reassignment was unlawful because it was what plaintiff calls a "punitive transfer." We consider those arguments in sequence.

I

A reduction in rank is an adverse action. 5 C.F.R. § 752.201(b)(4) (1977) (current version at 5 C.F.R. § 752.301 (1980)). Such action generally may not be taken without providing the employee with adverse action procedures such as notice and an opportunity to reply before the adverse action is taken. 5 C.F.R. § 752.202 (1977) (current version at 5 C.F.R. §§ 752.301, 752.404 (1980)). In general, where adverse actions are taken by agencies without providing adverse action procedures, the actions are unlawful and may be set aside. Summers v. United States, supra; Bur v. United States, 224 Ct.Cl. 52, ___, 621 F.2d 415, 416 (1980); Shaposka v. United States, 215 Ct.Cl. 34, 43, 563 F.2d 1013, 1018 (1977); Gratehouse v. United States, 206 Ct.Cl. 288, 296, 512 F.2d 1104, 1108 (1975), cert. denied, 434 U.S. 955, 98 S.Ct. 480, 54 L.Ed.2d 313 (1977). Since plaintiff was not provided with adverse action procedures in connection with his reassignment, the only question here is whether there was a reduction in rank.

Plaintiff claims there was. He presents his reduction-in-rank argument as a single argument but it actually has two distinct facets, and this has been the cause of some confusion in the case. The first argument we will call the "hierarchical" argument. The second argument we will call the "sham position" argument.

The "hierarchical" argument is that plaintiff was reduced in rank by the reassignment because in the new position he reported to a lower level supervisor than he did in the old position. This argument was based on the face of the position descriptions of the old and new positions and the HUD organizational chart. This was the argument considered by the FEAA's Chicago field office. It held that the new position was not subordinate to the old position nor subordinate to a position equivalent to the old position. It concluded, therefore, that there was no reduction in rank and denied plaintiff relief. However, it expressly refused to consider the "sham position" argument.

In its later decision regarding plaintiff's termination, the FEAA simply relied on the Chicago office's determination that there was no reduction in rank. Plaintiff attacks this as improper, but it is not clear whether he does so because he feels the FEAA cannot rely on the Chicago office decision per se or because by doing so the FEAA failed to consider the "sham position" argument. As to the first point, we do not feel there was anything improper in relying on the Chicago office decision as to the "hierarchical" issue. It...