Gaballah v. Johnson, 77-1084

• Decision Date: 24 July 1980
• Docket Number: No. 77-1084,77-1084
• Citation: 629 F.2d 1191
• Parties: 23 Fair Empl.Prac.Cas. 46, 23 Empl. Prac. Dec. P 31,033 Dr. Saeed GABALLAH, Plaintiff-Appellant, v. Donald E. JOHNSON, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1191

629 F.2d 1191

23 Fair Empl.Prac.Cas. 46, 23 Empl. Prac.

Dec. P 31,033

Dr. Saeed GABALLAH, Plaintiff-Appellant, v. Donald E. JOHNSON, et al., Defendants-Appellees.

No. 77-1084.

United States Court of Appeals Seventh Circuit.

Argued Oct. 4, 1977.

Decided June 17, 1980.

Rehearing Denied July 24, 1980.

George F. Galland, Jr., Chicago, Ill., for plaintiff-appellant.

Thomas P. Sullivan, U. S. Atty., Alexander D. Kerr, Asst. U. S. Atty., Chicago, Ill., for defendants-appellees.

Before FAIRCHILD, Chief Judge, CUMMINGS, Circuit Judge, and CAMPBELL, Senior District Judge. ^*

FAIRCHILD, Chief Judge.

Dr. Saeed Gaballah, an employee of the Veteran's Administration (VA), brought this lawsuit alleging a campaign of job discrimination against him by the defendants stretching from mid-1968 into 1975. Gaballah alleged that from 1968 to 1971 this course of discriminatory conduct was led by defendant Dr. I. James Young, then Gaballah's supervisor, and culminated in the abolition of Gaballah's GS-13 position through a reduction in force (RIF) procedure. When the RIF became effective on July 6, 1971, Gaballah was offered and accepted a GS-9 position under a different supervisor. Then, Gaballah alleged, defendants Dr. Gilbert Bogan, Dr. Ghonsham Sooknandan, and Dr. Jae Ro carried forward the campaign of discrimination by harassing him in his new position and by acting in concert with others to deny him opportunities for promotion to five positions which became available between November, 1972 and September, 1975.

Gaballah filed two lawsuits in the district court during this period, seeking relief from the defendants' alleged conduct. These suits were consolidated, the complaints were refined, and the case was tried before Judge Leighton without a jury. At the close of Gaballah's evidence the district court granted permission to file a Fourth Amended Complaint setting out two theories of liability: employment discrimination on the basis of nationality and religion in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq.; and deprivation of property rights without due process in violation of the Fifth Amendment. Also at the close of Gaballah's evidence, ¹ the district court took under consideration the defendants' motion under Rule 41(b), Fed.R.Civ.P., to dismiss the action for failure to show a right to relief. After both sides filed proposed fact findings and memoranda of law, the district court filed its findings and a memorandum opinion and granted judgment dismissing Gaballah's action against each of the defendants. We affirm.

I

Dr. Saeed Gaballah is an Egyptian and a Moslem. He came to the United States many years ago, obtained a Ph.D. in biochemistry from the University of Wisconsin, and became a citizen of the United States. In February, 1966, defendant Dr. I. James Young, M.D., Ph.D., hired Gaballah to establish and supervise a new Clinical Neuro-Chemistry Laboratory at Downey VA Hospital, Downey, Illinois. Young was the new Chief of the Neurology Service at Downey.

Gaballah began at Downey with a GS-12 salary grade to be paid from the hospital's clinical funds. His responsibilities included clinical neuro-chemistry tests, general supervision of his laboratory, and development and supervision of a new Radioisotope Laboratory. In addition, he was free to apply for research grants and spend some of his time conducting research. During Gaballah's first two years of employment at Downey his work proceeded smoothly and satisfactorily and he enjoyed a good working relationship with his colleagues. In addition, he and his wife socialized with the Youngs and attended dinners at Young's home. In July, 1967 Gaballah was promoted to the GS-13 salary grade.

The seeds of Gaballah's disputes with the defendants were sown in December, 1967 when Gaballah filed a grievance against Young. Gaballah complained that Young had removed a technician from Gaballah's supervisory authority and had discouraged Gaballah from submitting an independent research grant proposal. Young responded that supervision of particular employees must remain under Young's ultimate control as Chief of the Neurology Service and that Gaballah was free to submit grant proposals as long as the research work did not interfere with his duties as head of the Clinical Neuro-Chemistry Laboratory. P.Exh. 12.

In June, 1968 another dispute arose when Young recommended withholding Gaballah's annual within-grade pay increase. Young asserted that Gaballah had failed to keep sufficient records in the Radioisotope Laboratory and to keep Young informed of the work being done in the Neuro-Chemistry Laboratory. P.Exh. 19. Gaballah sought reconsideration of Young's recommendation by the Hospital Director, Dr. Bourke. After discussing the matter with Young and Gaballah, Bourke set aside Young's decision on the ground of insufficient warning. P.Exh. 25.

Following this settlement of the salary increase dispute in August 1968, Gaballah said a cordial working relationship with Young was reestablished. Tr. 1282-83. In the spring of 1969 Gaballah submitted a proposal for research funding to study a nervous system chemical called Cyclic-AMP. The proposal was approved by Young and the Downey Research and Education Committee (REC) and submitted to the VA Central Office for allocation of Part I funds. ² The proposal requested funding for five years of research. In July, 1969, the VA Central Office approved funding of Gaballah's Cyclic-AMP research for two years from July, 1969 to June, 1971. By mid-1969 Gaballah's activities at Downey were almost exclusively research oriented.

Late in 1969 Gaballah complained to the Chief of Staff at Downey, Dr. Raulinaitis, that Young was favoring other researchers in the Neurology Service, Dr. Irene Held and a chemist, James Custod, and that Young had taken over direct supervision of the technicians and chemists in the Neuro-Chemistry and Isotope Laboratories. Raulinaitis told Gaballah that as Chief of Neurology, Young had the authority to do these things and Gaballah "had better make peace with him." Tr. 777. She also warned Gaballah that the hospital could close the Clinical Neuro-Chemistry Laboratory at any time.

In the spring of 1970 another dispute arose. Young attempted to put together a composite research program involving the entire Neurology Service. Each researcher, including Gaballah, was to investigate a particular topic within the composite program. Young planned to submit the composite proposal for Part I funding. At the same time Gaballah obtained Young's permission to formulate and submit a Part II proposal. When Gaballah drew up his proposal, however, Young concluded that it was the same as Dr. Held's topic in the composite program and asked Gaballah to withdraw his proposal. Gaballah suggested that they allow the REC to resolve any conflict between his proposal and Held's topic and Young agreed. The next day Young reversed himself and told Gaballah he would not give the approval of the Part II proposal needed to allow the REC to act on it. About the same time Young held a meeting of the people involved in the composite program, except Gaballah, and the group decided to exclude Gaballah from the program.

Also during this period Gaballah served on a REC sub-committee which reviewed new grant proposals and progress reports from ongoing projects and made recommendations to the REC. In April 1970 the sub-committee returned a series of Young's progress reports to him, requesting corrections on some and indicating that three reports, on projects involving Custod, appeared to show no progress at all.

In June, 1970 Gaballah filed a grievance complaining about Young excluding him from the composite program and disapproving the Part II proposal. The written grievance was labelled "discrimination" and contains an assertion that Young's conduct amounted to "professional discrimination." P.Exh. 82. ³ Young responded that Gaballah's Part II proposal conflicted with Held's composite program topic and that the others involved in the composite program had agreed to exclude Gaballah because his lack of cooperation was inconsistent with the "collegiality" necessary to the program. Young also said he felt it necessary to redirect Gaballah's activities back toward the clinical responsibilities for which he was hired. P.Exh. 83, p. 2. Hospital Director Bourke found Gaballah's grievance unjustified on the ground that Young's actions were within his authority and that Gaballah should devote more time to clinical duties because his salary came from the hospital's clinical funds. P.Exh. 84.

In July, 1970 Gaballah filed another written grievance, again labelled "discrimination," raising the same issues as the June grievance. Gaballah met with Raulinaitis to discuss the matter and at her request withdrew his grievance with assurances that he could submit a request for renewal of the Cyclic-AMP project which would cover his entire salary from research funds. Tr. 873.

In December, 1970, Young filed his budget requests for the Neurology Service and disapproved renewal of funds for Gaballah's Cyclic-AMP project. P.Exh. 91. Gaballah submitted his renewal proposal to the REC and complained to Bourke, but both declined to act without Young's approval. P.Exhs. 92-96. Then on January 15, 1971, Gaballah received a memorandum from Bourke notifying him that the hospital planned to abolish the Clinical Neuro-Chemistry Laboratory effective June 30, 1971 and that Gaballah would be subjected to a RIF P.Exh. 108. Gaballah filed a grievance on January 28, 1971, asserting that the refusal to renew his research was done on a "personal basis," and requested a hearing. ⁴ P.Exh. 117.

The VA appointed a hearing officer and a hearing was held on March 2, 1971. Gaballah hired an attorney to represent him at the hearing. Tr. 1112-13. At the opening of the hearing, the hearing officer instructed the parties to raise all...