Gilbert v. Johnson, 77-1063

• Citation: 601 F.2d 761
• Decision Date: 27 August 1979
• Docket Number: No. 77-1063,77-1063
• Parties: Dr. Joseph GILBERT, Plaintiff-Appellant-Cross-Appellee, v. Donald JOHNSON et al., Defendants-Appellees-Cross-Appellants, Sam F. Lowe, Jr., Movant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 761

601 F.2d 761

Dr. Joseph GILBERT, Plaintiff-Appellant-Cross-Appellee, v. Donald JOHNSON et al., Defendants-Appellees-Cross-Appellants, Sam F. Lowe, Jr., Movant-Appellant.

No. 77-1063.

United States Court of Appeals,

Fifth Circuit.

Aug. 27, 1979.

Mark J. Kadish, Atlanta, Ga., for Gilbert.

H. A. Stephens, Jr., Atlanta, Ga., for Lowe.

William L. Harper, U. S. Atty., William D. Mallard, Jr., Asst. U. S. Atty., Robert J. Castellani, First Asst. U. S. Atty., Atlanta, Ga., Martin Hollander, Atty., Civ. Div., Dept. of Justice, Washington, D. C., for defendants-appellees-cross-appellants.

Appeals from the United States District Court for the Northern District of Georgia.

Before TUTTLE, GODBOLD and RUBIN, Circuit Judges.

TUTTLE, Circuit Judge:

This is an appeal from a judgment of the trial court denying to Dr. Gilbert the relief he sought against the United States Veterans Administration Hospital personnel for terminating his employment for refusal to accept a transfer from Atlanta to Birmingham.

The correctness of the judgment below depends primarily upon the answer to two questions: (1) Does the administrative record of the Veterans Administration which resulted in the disciplinary action involved in the transfer demonstrate that Dr. Gilbert had received the administrative due process to which he was entitled, and was the action neither arbitrary nor capricious? (2) was the action of the Veterans Administration within the scope of the findings and conclusion of the disciplinary board? that is, was a transfer of appellant appropriate action to be taken under the disciplinary board's recommendation of "only minimal disciplinary action?"

The defendants also appeal that part of the trial court's judgment that awarded Dr. Gilbert his full compensation between January 1, 1973 and March 17, 1975, excluding those periods during which Dr. Gilbert was on leave of absence.

The trial court viewed its function in determining whether Dr. Gilbert was entitled to relief as encompassing a review of the administrative record to determine whether the plaintiff had received the kind of hearing that is provided for persons in such a situation by the statutes, regulations of the Veterans Administration and under the due process clause of the Fifth Amendment to the Constitution. In doing so, the court correctly noted that in this Circuit judicial review of federal employee personnel decisions is limited to a determination of (1) whether the employee has been afforded administrative procedural due process as provided by statute, regulations and the Constitution; and (2) whether the decision was arbitrary or capricious. These standards are distilled from our decisions in Davis v. Vandiver, 494 F.2d 830 (5th Cir. 1974); Mann v. Klassen, 480 F.2d 159, 161 (5th Cir. 1973); Dozier v. United States, 473 F.2d 866 (5th Cir. 1973); Anonymous v. Macy, 398 F.2d 317 (5th Cir. 1968) and Chiriaco v. United States, 339 F.2d 588 (5th Cir. 1964). In reaching this conclusion, the trial court outlined extensive findings as to the contents of the administrative record. These include the following.

Dr. Gilbert was a trained cardiothoracic surgeon with 17 years experience when he was recruited by the Veterans Administration to be Associate Chief of Staff for Education and Research (ACOS) at the Atlanta hospital in late 1965. At the time he joined the hospital, he understood that he would have patient care duties in his specialized field, cardiothoracic surgery, besides administering the research program at the Atlanta VA Hospital. This hospital is affiliated in some degree with Emory University Medical School. The ACOS assignment did not necessarily require a cardiothoracic surgeon, since the duties of his new position were the conducting of research and administering the research program of the hospital.

The desired patient care responsibilities during his tenure between 1966 and 1970 did not develop, resulting in disappointment on Dr. Gilbert's part, coupled with frustration and apparent criticism by some of the persons responsible for this state of affairs. These included Dr. Jarman, the VA Hospital director and Dr. Martin, Chief of Surgery at Emory University Medical School. By March, 1970, it became apparent to Dr. Jones, Chief of Staff at the VA Hospital at that time, that Dr. Gilbert's "poor interpersonal relationships" with the VA staff were interfering with his administration of the research program at the hospital. He made this a subject of his annual proficiency report. ¹

As a result of Dr. Jones' presentation, which apparently represented the hospital management's view of Dr. Gilbert's problems, Dr. Jarman, the Hospital Director, undertook to relieve Dr. Gilbert of his duties as Associate Chief of Staff, although retaining him on the Veterans Administration payroll for the purpose of continuing his own research. This action was followed by a May 6, 1970 letter by Dr. Jarman to the Veterans Administration headquarters requesting that Dr. Gilbert be reassigned to another station because of the progressive breakdown of Dr. Gilbert's relationships with "almost everyone in this hospital and Emory."

On September 22, 1970, Dr. Jarman assigned Dr. Gilbert to the examination of veterans in connection with pension and compensation claims, an inferior position which this Court, upon an appeal from an interim judgment of the district court denying Dr. Gilbert any relief, characterized as "menial" and "totally unrelated to his highly specialized field of cardiothoracic surgery." Gilbert v. Johnson, 490 F.2d 827, 829-30 (5th Cir. 1974). The appellant refused to accept these duties and he took a leave of absence for four months from November, 1970 to March, 1971, during which time he took refresher training in cardiovascular surgery. Upon his return from this leave in March, Dr. Gilbert was ordered transferred to the Des Moines, Iowa VA Hospital for training in general surgery. He considered this as a further attempt to strip him of his cardiothoracic surgery specialty and he claimed he was entitled to a hearing under the Veterans Administration statutes and regulations, since such action by the VA amounted to disciplinary action under 38 U.S.C. § 4110(a). The VA replied that if he did not accept the reassignment, he would be discharged. He refused to accept it and he was discharged on July 30, 1971, without a hearing.

Dr. Gilbert filed this suit on April 4, 1972. On June 16, the court held that Dr. Gilbert was entitled to a hearing pursuant to 38 U.S.C. § 4110 ² prior to discharge and ordered that Dr. Gilbert receive back pay in compensation from the VA until the effective date of the decision of the § 4110 disciplinary board. The court however, did not order Dr. Gilbert reinstated as Associate Chief of Staff.

Explaining its reason for holding that the plaintiff was entitled to a § 4110 hearing, the court said that the VA's actions suspending him as Associate Chief of Staff, detailing him to examination of compensation and pension payments and his subsequent transfer to Des Moines, Iowa, followed by his subsequent termination in July, 1971:

originated in personality problems or personality misunderstandings between the plaintiff and others of the Veterans Administration set-up. Apparently, it became apparent to all concerned that Dr. Gilbert would best serve the Veterans Administration somewhere other than at the Atlanta Veterans Administration Hospital.

A major part of the job of Associate Chief of Staff of the Veterans Administration Hospital in Atlanta involved coordination of the research program including the recruitment and stimulation of other investigators who would work with or under the Associate Chief of Staff.

A personality deficiency or personality defect that would interfere with the effective performance of that job (ACOS) is, in effect, a species of inaptitude or inefficiency with respect to the job in question. . . .

Therefore, the removal from the job of Associate Chief of Staff, the detail to compensation claims examinations, and the transfer were in effect actions based upon charges of inaptitude or inefficiency and a hearing was required to be held with respect thereto under Title 38 U.S.C. § 4110.

On August 28, 1972, following the court's order, the VA advised Dr. Gilbert that he had been assigned once again to conduct pension and compensation examinations at the Atlanta VA Hospital. He refused this assignment, arguing that it was not consistent with the court's order, claiming that it was a damaging and punitive disciplinary action taken without a hearing and amounted to a continued attempt by the VA to arbitrarily destroy his reputation by undercutting his specialized surgical qualifications by placing him in a demeaning position.

In September, 1972, Dr. Jones, Chief of Staff of the VA Hospital began a preliminary investigation of Dr. Gilbert in preparation for the disciplinary board hearing. During several following months, an effort was made to reach a negotiated settlement of the litigation. As a part of this effort, the VA offered Dr. Gilbert an assignment in his specialty, thoracic surgery, at the Little Rock, Arkansas VA Hospital. Dr. Gilbert rejected it, still contending that the VA had not complied with the court's June 16, 1972 order. Thereafter, the VA assigned Dr. Gilbert to the Outpatient Surgical Clinic of the Atlanta VA Hospital. He rejected this assignment for the same reasons he had turned down the pension and compensation examination position. Thereafter, upon the protest by Dr. Gilbert that the investigation should not be conducted by his superior, Dr. Jones, a second preliminary investigation was started by John R. Pollard of the VA's central office in Washington. In April of 1973, the VA having neither sent a letter of charges to Dr. Gilbert nor held a statutory hearing ordered by the court a year earlier, nor paid the money judgment, Gilbert filed a motion to enforce the judgment ...