McFarland v. United States

• Decision Date: 14 May 1975
• Docket Number: No. 746-71.,746-71.
• Citation: 517 F.2d 938
• Parties: Grace K. McFARLAND v. The UNITED STATES.
• Court: U.S. Claims Court

517 F.2d 938

Grace K. McFARLAND v. The UNITED STATES.

No. 746-71.

United States Court of Claims.

May 14, 1975.

John I. Heise, Jr., Silver Spring, Md., atty. of record, for plaintiff. Heise & Jorgensen, Silver Spring, Md., of counsel.

Raymond B. Benzinger, Washington, D. C., with whom was Acting Asst. Atty. Gen., Irving Jaffe, for defendant.

Before SKELTON, KASHIWA and KUNZIG, Judges.

OPINION

PER CURIAM:

This case comes before the court on plaintiff's exceptions to the recommended decision filed April 25, 1974, by Trial Judge Harry E. Wood pursuant to Rule 134(h). The court has considered the case on the briefs and oral argument of counsel. Since the court agrees with the trial judge's recommended decision, with modifications by the court, as hereinafter set forth,^* it hereby affirms and adopts the same, as modified, as the basis for its judgment in this case.^† Therefore, plaintiff is not entitled to recover and the petition is dismissed.

OPINION OF TRIAL JUDGE

WOOD, Trial Judge:

In this action, plaintiff sues to recover "back salary", less appropriate offsets, from and after June 12, 1968, on the ground that her involuntary retirement for physical disability from her position as an accounting technician, GS-5, at Patrick Air Force Base, Florida, effective June 11, 1968, was unlawful.

Plaintiff contends (1) that the agency application for plaintiff's disability retirement, and a psychiatric evaluation subsequent to the said application, but prior to action by the Civil Service Commission on the agency application, "constitute error which went to the very heart of the administrative determination of disability", and (2) that both the Civil Service Commission's "refusal to overturn its original determination" and its refusal to grant plaintiff a hearing in connection with her efforts to obtain reversal of the Commission's original determination, are arbitrary and erroneous.

Defendant urges that there is no basis for setting aside the Commission's determination that plaintiff was totally disabled for useful and efficient service in her position, and that, its defense of this action having been prejudiced by plaintiff's delay in commencing suit in this court, her claim is in any event barred by the doctrine of laches.

For reasons hereinafter set forth, and without reaching the question of laches, it is concluded that defendant's position on the merits is valid. Accordingly, plaintiff is not entitled to recover.

Plaintiff's employment at Patrick Air Force Base ("AFB") began in 1951. In 1958 she was separated by adverse action from her position as an accounting technician, GS-6, for inefficiency. On appeal, the separation was cancelled as procedurally defective, and she was restored to duty retroactively. Shortly thereafter, however, she was downgraded from GS-6 to GS-5 pursuant to a reduction-in-force.

Insofar as the present record shows, plaintiff's employment at Patrick AFB from 1958 to mid-1966 was not only satisfactory but seemingly not particularly eventful. The sole recorded incident concerning her during this period occurred in November 1964, when plaintiff's request for authorization to work overtime was denied by her then supervisor, Mr. Clark. She became upset and began to cry, and, according to the supervisor, created a scene.¹ It is clear from the record, however, that throughout her employment at Patrick AFB plaintiff felt she was being intimidated, persecuted, and subjected to "harassing pressures" by her superiors at Patrick AFB.

Early in 1966, responsibility for aviation fuels accounting, for some 4 years prior thereto a substantial part of plaintiff's duties as an accounting technician, GS-6, was transferred to another office. Plaintiff was not assigned any duties to replace those transferred, and her complaints about the loss of duties met with no success.

In June 1966, plaintiff's office (and plaintiff) came under the supervision of Mr. Lopez-Vega, theretofore a GS-9 at the Air Force Accounting and Finance Center. Plaintiff felt that she was qualified for, and should have been promoted to, the GS-7 supervisory position given to the new supervisor, and it is fair to conclude that she was resentful of both the appointment and the appointee.

Prior to his arrival at Patrick AFB, Mr. Lopez-Vega had been told by the Chief, Accounting and Finance Branch, Patrick AFB, that if he accepted the GS-7 position there he would be working with plaintiff, and that she would be very difficult to deal with. At Mr. Lopez-Vega's initial introduction to plaintiff, she made no response whatever to his greeting to her, and in his opinion the initial meeting was very unpleasant. Thereafter, whenever he had a problem or a conflict with her, he made a memorandum for the record describing the incident.

Between June 12, 1966 and September 12, 1966, Mr. Lopez-Vega recorded five incidents concerning plaintiff: in general terms, her failure or refusal to carry out his instructions on June 17, August 1, and August 12, 1966; her use of hostile and insulting language to a fellow worker on June 29, 1966; and, on September 8, 1966, her refusal to comply with his written instructions, coupled with her subsequent use of a vulgar word which created a very unpleasant situation in the office. There is no doubt that the several incidents just mentioned in fact occurred substantially as described.

In October 1966, plaintiff was reprimanded for failure to carry out her assigned duties in a reasonable period of time on August 12, 1966, and for disorderly conduct on September 8, 1966. In the meantime, effective September 12, 1966 (after a downgrading as a result of a position survey to accounting technician, GS-5, with saved pay for 2 years), she had been transferred to another section, where she again came under the administrative supervision of Mr. Clark. From September 12, 1966 to February 2, 1967, there was no recorded incident of plaintiff's attitude or conduct in her new position.

On the morning of February 2, 1967, plaintiff and her technical supervisor, a Miss Grice, engaged in a rather emotional exchange over plaintiff's mailing, contrary to Miss Grice's instructions, of an original, rather than a duplicate, of a report. During the course of the exchange, Miss Grice slammed a posting ledger on the desk in front of plaintiff. Plaintiff went to Mr. Clark about the incident, stating that she was being blamed for everything and asking when she was going to get out of the section. During the discussion with Mr. Clark, plaintiff began to cry and became very upset. Mr. Clark made a record of the incident, and reported it to the Chief, Accounting and Finance Branch.

Shortly thereafter, "by reason of your disruptive job behavior which has continued over the past 3 years", the Chief, Accounting and Finance Branch, directed plaintiff to report to Patrick AFB Hospital for a medical examination to determine whether she was physically able to continue in her assigned tasks. The report of that examination, conducted February 20, 1967, by an Air Force medical officer, reflected that plaintiff's emotional and mental stability were poor, and contained a recommendation for "psychiatric workup for existing personality disorder."

By letter dated March 16, 1967, plaintiff was informed by the Chief, Accounting and Finance Branch, of an appointment March 23, 1967, with Dr. Edward J. Adickes, of Indialantic, Florida, near Patrick AFB. Plaintiff was advised that government transportation to Dr. Adickes' office had been arranged for her, and that if she refused to be examined or to have the results reported, she might be separated for that reason.

Dr. Adickes' March 24, 1967 report to the Civilian Personnel Office, Patrick AFB, of his psychiatric evaluation of plaintiff reflected the opinion that she evidenced marked difficulties in judgment when dealing with highly charged emotional material, and inappropriate and hostile attitudes. He concluded that plaintiff "has a persecution complex with paranoid delusions prominent enough to create difficulty in maintaining reasonable behavior."²

On April 6, 1967, Mr. Clark signed a Standard Form 2801-A, "Superior Officer's Statement In Connection With Application For Total Disability Retirement." Among other things, the said statement reflected that periodically plaintiff's "tantrums and emotional upsets disrupted the office." Under the heading of "instances of emotional instability or abnormal behavior", Mr. Clark listed the November 1964 incident involving plaintiff and Mr. Clark, each of the five June-September 1966 incidents described above, and the February 1967 incident involving plaintiff and Mr. Clark.

On April 19, 1967, plaintiff was afforded an opportunity to apply for disability retirement, but emphatically declined to do so. On April 20, 1967, an agency application for her disability retirement, accompanied by Standard Form 2801-A, the report of plaintiff's February 20, 1967, examination at Patrick AFB Hospital, Dr. Adickes' March 24, 1967, report, and a statement that plaintiff refused to execute an application for disability retirement were transmitted to the Atlanta Region, Civil Service Commission ("CSC").

At the request of the Regional Medical Officer, Atlanta Region, CSC, plaintiff was seen by Dr. James R. Parsons, of Melbourne, Florida, also near Patrick AFB, on May 25, 1967. Dr. Parsons had never seen plaintiff prior to that date, but he had received from Patrick AFB, and had read, a copy of Dr. Adickes' March 24, 1967, report concerning her. Dr. Parsons' understanding in 1967 was that only one appointment for plaintiff with him in connection with his evaluation of her was possible.

By letter dated June 15, 1967, to the Regional Medical Officer, Atlanta Region, CSC, Dr. Parsons reported plaintiff's sudden loss of courtesy and composure within less than 5 minutes, and her demonstration of "a very marked `push of speech' * * * interrupted by flashes of intense...