Mitchell v. Espy

• Citation: 845 F. Supp. 1474
• Decision Date: 08 March 1994
• Docket Number: Civ. A. No. 89-1465-FGT.
• Parties: Rose Mary MITCHELL, Plaintiff, v. Mike ESPY, Secretary, Department of Agriculture, Defendant.
• Court: U.S. District Court — District of Kansas

845 F. Supp. 1474

Rose Mary MITCHELL, Plaintiff, v. Mike ESPY¹, Secretary, Department of Agriculture, Defendant.

Civ. A. No. 89-1465-FGT.

United States District Court, D. Kansas.

March 8, 1994.

COPYRIGHT MATERIAL OMITTED

Barbara Kovarovic Lundin, Lundin & Daniels, Dodge City, KS, for plaintiff.

Stephen K. Lester, Office of U.S. Atty., Wichita, KS, Lawrence S. Cavallaro, Chief, Employee Appeals Staff, Office of Personnel, Dept. of Agriculture, Washington, DC, for defendant.

MEMORANDUM AND ORDER

THEIS, District Judge.

Plaintiff Rose Mary Mitchell brought this action seeking judicial review of a decision of the Merit Systems Protection Board upholding her removal from employment with the Farmers Home Administration; contesting a five day suspension from work; alleging discrimination on the basis of age, sex and marital status in her suspension and termination; and alleging retaliation for filing a discrimination complaint over the suspension. Trial to the court was held from July 6 through July 9, 1993. The court has received the parties' post-trial briefs and now makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

Plaintiff is a female who was born in 1930. At all times relevant to this decision, plaintiff was single and over the age of 40 years.

Plaintiff began working for the Farmers Home Administration (FmHA), United States Department of Agriculture, in June 1951. At the time plaintiff left her employment with FmHA, plaintiff was a County Office Assistant, GS-5, at the County FmHA office located in Ness City, Kansas. Plaintiff had been working at the Ness City FmHA office since approximately 1978.

On February 19, 1987, plaintiff was suspended from her job for a period of five days. Plaintiff filed both a grievance and a discrimination complaint regarding the suspension.

On May 9, 1988, FmHA proposed to remove plaintiff from her job on grounds of insubordination, uncooperative work behavior and failure to comply with authorized instructions of her supervisor.

Plaintiffs removal was to be effective on October 7, 1988. Plaintiff resigned on October 6, 1988.

Plaintiff appealed her dismissal to the Merit Systems Protection Board (MSPB). An Administrative Judge of the MSPB ruled that plaintiff's resignation was involuntary. After a hearing, the Administrative Judge affirmed the removal. MSPB Record, Vol. VIII at 1749-1779.

Plaintiff filed a petition for review of the Administrative Judge's decision. MSPB Record, Vol. IX at 1784-1815. On July 25, 1989, the MSPB declined to review the decision of the Administrative Judge. MSPB Record, Vol. IX at 1920-1923.

Larry Davis was the FmHA State Director during the relevant time period.

J.W. Smith was the District Director during the relevant time period for the district in which plaintiff worked.

Jerald Bandel was County Office Supervisor for the Ness City FmHA office from 1984 to April 1986. As County Office Supervisor, he was plaintiff's immediate supervisor.

Mark Andy Bogner, a District Loan Specialist, served as Acting County Office Supervisor for the Ness City office from May 1986 to December 1986.

From December 1986 until September 1987, there was no permanent County Office Supervisor for the Ness City office. A series of Assistant County Supervisors worked as temporary supervisors in the Ness City office.

Randy Thiel became County Office Supervisor for the Ness City FmHA office in September 1987. Thiel was plaintiff's immediate supervisor at the time of the proposal to remove and the plaintiff's resignation.

When Bogner first arrived as Acting County Office Supervisor, the plaintiff was authorized to work overtime. Subsequently, the FmHA State Director and the District Director canceled plaintiff's overtime authorization. According to Bogner, there appeared to be a need for overtime, since the Ness City FmHA office had a considerable backlog.

Bogner testified regarding the "jump team." A jump team is a group of employees from other offices who are sent in to another office to help process loans. A jump team visited the Ness City office at least once during Bogner's term there.

After Bogner assumed the duties as Acting Supervisor in Ness City, he made a trip to the St. Louis regional office. Bogner took 20 files with him. Bogner was concerned that documents prepared by the jump team, such as security agreements and financing statements, were missing from the files. Bogner testified that he had scheduled a number of loan closings which had to be rescheduled when the paperwork problems surfaced.

While Bogner was Acting County Office Supervisor, the agency proposed the plaintiff's suspension. Bogner had nothing to do with the proposed suspension.

On September 30, 1986, State Director Larry Davis issued a proposal to suspend plaintiff for 14 days and to transfer her to the position of District Office Clerk, GS-5, Dodge City, Kansas. Plaintiff's Exh. 1.

Prior to issuing his proposal to suspend plaintiff, Davis received a letter dated September 21, 1986 from Marilyn Dickman, Supervisory Personnel Management Specialist, from the FmHA office in St. Louis. Dickman's letter discussed the proposal to suspend plaintiff for 14 days and transfer plaintiff to another location. The letter stated that previous County Office Supervisor Bandel was a weak supervisor who did not address plaintiff's shortcomings. Bandel did not require plaintiff's cooperation and compliance with instructions. Dickman's letter noted that the District Director must have been aware of plaintiff's deficiencies, yet did nothing to correct them. The District Director also should have been aware that Bandel had serious deficiencies which were not addressed. Plaintiff's Exh. 80.

Dickman noted a particular area of concern in the documentation in the running records. Dickman reviewed case files with Bogner and another FmHA employee and concluded that plaintiff had engaged in "creative documentation." Running records which had been copied and mailed to Dickman in June 1986 had new May 1986 entries when reviewed in August 1986. Correspondence which had apparently been forgotten would be sent out weeks later. The date on the letter would not be changed and the running record would be altered to reflect that the correspondence was mailed on the original date. Running record entries were erased and new entries would be added weeks later. Dickman advised that plaintiff's supervisor must keep a continuous check on these matters. Plaintiff's Exh. 80.

Dickman advised that the supervisor should immediately give plaintiff an accurate position description and objective performance standards. The supervisor should also see that plaintiff receives any training needed for acceptable performance of her job. After a reasonable period of time, action based on job performance could be initiated. Plaintiff's Exh. 80.

Davis had initially considered transferring plaintiff to the State office in Topeka, primarily to keep plaintiff away from the public. Dickman's letter suggested that a transfer to the State office might seem punitive given the great distance involved. Plaintiff could be removed for failure to accept reassignment to the State office; however, Dickman did not believe the agency's position would be sustained by the MSPB. Dickman recommended transferring plaintiff to a District office closer to Ness City. Plaintiff would not necessarily have to move and her access to the public would be more limited and better controlled than in a County office. Plaintiff's Exh. 80.

On September 30, 1986, State Director Larry Davis issued the proposal to suspend plaintiff for 14 days and to transfer her to the District office in Dodge City. Plaintiff's Exh. 1. The proposal was delivered to plaintiff on October 1, 1986. The proposal contained 22 specifications under the following categories: uncooperative work behavior, improper personal conduct, failure to follow agency instructions, incompetency and inefficiency in work performance, and falsification of agency documents.

FmHA Instruction 2045-D, dated March 11, 1987, provides that a State Director may authorize the reassignment or transfer of a career employee when "reassignment to another organizational unit or location will best serve the interest of the Agency. Reassignments cannot be used for disciplinary actions or to force a resignation or retirement." Plaintiff's Exh. 77. Davis denied that the proposal to transfer plaintiff to Dodge City was intended to be punitive.

Plaintiff appealed the proposed suspension and transfer. Plaintiff was given the opportunity to respond both orally and in writing. The agency's analysis by Marilyn Dickman, Supervisory Personnel Management Specialist, summarized the evidence and recommended that certain specifications be dropped. Dropped completely were the charges of improper personal conduct and falsification of agency documents (and the specifications contained thereunder). Also dropped were several specifications under the remaining three charges. The 28 page analysis also recommended that the proposed suspension be dropped from a period of 14 days to a period of 5 days. It was recommended that the transfer issue be dropped. Plaintiff's Exh. 2.

In his decision to suspend dated February 19, 1987, State Director Larry Davis dropped the specifications as recommended in the analysis. Davis imposed a suspension of 5 days beginning February 23, 1987. Davis stated in his decision that he could no longer tolerate the plaintiff's uncooperative work behavior toward fellow employees or the strained relationship between the Ness City office and members of the public. Davis demanded immediate improvement. Davis declined to return the plaintiff's office keys and again ordered the plaintiff not to be in the office outside of established office hours unless overtime had been approved in advance. Davis warned plaintiff that the situation would be closely monitored and that he would be receiving reports on...