Motto v. General Services Administration of US

• Decision Date: 06 December 1971
• Docket Number: Civ. A. No. 70-1865.
• Parties: Thomas A. MOTTO, Jr., Plaintiff, v. The GENERAL SERVICES ADMINISTRATION OF the UNITED STATES of America et al., Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

335 F. Supp. 694

Thomas A. MOTTO, Jr., Plaintiff, v. The GENERAL SERVICES ADMINISTRATION OF the UNITED STATES of America et al., Defendants.

Civ. A. No. 70-1865.

United States District Court, E. D. Louisiana, New Orleans Division.

December 6, 1971.

Neal D. Hobson, New Orleans, La., for plaintiff.

Don M. Richard, Asst. U. S. Atty., for defendants.

ALVIN B. RUBIN, District Judge:

Thomas A. Motto, Jr. had been employed in New Orleans by the General Services Administration for nine years when he was notified he was transferred to Fort Worth. Rather than accept the transfer, he resigned. He contends that his transfer was an adverse action, and that he was entitled to notice and a hearing. His transfer without a hearing, he contends, forced him out of government service, and he seeks reinstatement, with back pay, and other benefits that he lost when he resigned. The United States contends that Motto's transfer was to meet the needs of his employer, and did not constitute adverse action entitling him to a hearing.

It is unnecessary to plumb the depths of all the issues tendered by the parties. While the evidence was contradictory, I find the facts to be as follows:

Motto was a Civil Service employee. He had served in World War II and the Korean War and was entitled to the protection of the Veterans Preference Act, 5 U.S.C.A. §§ 2108, 3501 et seq. See also 5 U.S.C.A. § 3307 et seq. and 5 U. S.C.A. § 7511. His performance evaluation sheets indicate that his work had always been considered average or above average.

Whether Mr. Motto was a supervisor, as he contends, or merely a working job leader, as contended by GSA, several people were under his supervision in New Orleans. There had been a degree of turnover in his staff that his superior considered excessive and there had been some complaints about his supervisory ability. In the latter part of 1966, his supervisor was alerted to an approaching inspection of the New Orleans and Ft. Worth offices. He therefore came from Ft. Worth to inspect the New Orleans office himself, to attempt to make certain that the offices would obtain satisfactory reports.

Because of dissatisfaction with Motto's services, Motto's supervisor decided to get rid of Motto. If he attempted to discharge Motto because of inadequate performance, Motto would be entitled to a hearing, and the evidence was not sufficient to indicate that the charges would succeed. But Motto's supervisor knew that he had twice before refused transfers from New Orleans. While some of Motto's personal circumstances had changed in the interim, his superior knew that Motto would likely again decline a transfer unless he were offered a concurrent increase in pay. Therefore, the supervisor decided to order a transfer to Ft. Worth, without a pay increase.

Motto's supervisor conferred with personnel officers about how to achieve his goals. They prepared a draft of a letter stating that Motto was being transferred because of "your inability to supervise people" and because of "your excessively high rate of turnover." (Motto Ex. 13).

But a transfer on these grounds might create a factual issue concerning Motto's supervisory ability and also might be considered adverse action. On the other hand, a transfer for "operational reasons" could not be questioned. Therefore, Motto was ordered to move to Ft. Worth because of job requirements.

As expected, Motto decided he would not accept the transfer. He was informed that he could instead resign, and he did.

In fact, Motto's services were needed in New Orleans, not in Ft. Worth, at the time his transfer was ordered. Indeed, his supervisor's own report, dated December 12, 1966, indicated that he then foresaw the need for an additional employee in New Orleans. While he testified that the work load in New Orleans was not increasing, or indeed, was declining, the report he requested from the Federal Supply Service, the agency that supplied the work being done by GSA's office, indicated that their work load had increased substantially and was then expected to remain at the higher level indefinitely.

As soon as Motto resigned, a new employee was hired in Ft. Worth supposedly to replace him. But, while Motto was classified GS 8, the new employee was classified GS 9. Explanations are found for this: the new employee had special qualifications, he was hired three months later, he had been a GS 10 and took a reduction to come to Ft. Worth.

But nothing in all of this rationalization explains why Mr. Motto could not have been offered the new position. In fact it is possible, although the evidence is not clear, that the new employee had been interviewed and was under consideration when Motto was presented with his dilemma by his supervisor. GSA correspondence shows that the new employee was "hired to fill the vacancy . . . created by the retirement" of Motto, and this letter is dated March 24, 1967 only eight weeks after Motto resigned.

Nor is the superior able to explain why Motto was not afforded the benefit of the administrative policy: "Employees who are moved from one geographical location to another . . . will be given promotions to the maximum extent possible, subject to the availability of vacancies and pursuant to manpower requirements." Administrative Procedure Manual, Chp. 2-39 p. 30 (ADM P1000.2A Chge 11) April 7, 1970. There is no satisfactory explanation why Motto's subordinate in New Orleans was promoted to GS 7 in July, 1967, a few months after it was apparently learned that there was less need for that office. Indeed in March, 1967, it was recommended in an investigation of the New Orleans office that the...