Nolan v. Cleland, C 78-1504 CFP.
| Decision Date | 20 December 1979 |
| Docket Number | No. C 78-1504 CFP.,C 78-1504 CFP. |
| Citation | 482 F. Supp. 668 |
| Court | U.S. District Court — Northern District of California |
| Parties | Janiece S. NOLAN, Ph.D., Plaintiff, v. Joseph Maxwell CLELAND et al., Defendants. |
COPYRIGHT MATERIAL OMITTED
Robert L. Nolan, M. Colleen Clancy, Oakland, Cal., for plaintiff.
G. William Hunter, U. S. Atty., Deborah M. Seymour, Asst. U. S. Atty., San Francisco, Cal., for defendant.
Plaintiff Janiece Nolan is a Ph.D. who was formerly employed by the Veterans Administration (VA), assigned to the Martinez, California, hospital. Through her first cause of action she claimed numerous acts of discrimination on the basis of her sex, culminating in her involuntary resignation.
Her second cause of action alleged deprivation of due process rights because of the failure of defendants to process her complaint as an employee grievance pursuant to Section 752 of the Federal Personnel Manual. Jurisdiction is premised on Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16; 42 U.S.C. § 1981; 28 U.S.C. §§ 1343(4), 2201 and 2202; 5 U.S.C. §§ 701 et seq., 7501 and 7532; and Executive Order 11478.
The parties stipulated that this case might be resolved on cross motions for summary judgment. For reasons to be discussed below, defendants' motion for summary judgment will be granted.
Plaintiff was employed by the VA in several capacities, beginning in 1970 as a research physiologist. In 1972, she applied for the VA's Graduate Education Program (hereafter sometimes GEP), which offered full-time salary and tuition in courses leading to a graduate degree, conditioned on a written commitment of employment with the VA for six years following graduation in such position as the agency might select.
After submitting her application, plaintiff married Robert Nolan, Chief of Staff of the Martinez hospital. The facts adduced indicate that certain agency officials felt that plaintiff's marriage would diminish her mobility after graduation. She was not selected for the Graduate Education Program despite having received the highest ranking in the nation on the competitive examination.
In July 1973, plaintiff filed an equal employment opportunity (EEO) discrimination charge alleging that her nonselection for the GEP was due to her sex. The EEO investigator found that plaintiff's superiors had shown inappropriate concern over her assumed lack of after-marriage mobility and, consequently, that she had been denied selection because of sex bias. EEO processing was not completed; plaintiff withdrew her charge when the VA agreed to appoint plaintiff to the program retroactively, with full back pay. As required by the graduate program, plaintiff agreed in writing to accept assignment at any VA facility and to work for the VA for at least six years after graduation.
In early 1975, anticipating her graduation in June, plaintiff applied to the VA Central Placement Office in Washington for the position of Coordinator of Medical District No. 29, a new position being established as part of an executive reorganization. She also expressed her preference for "staff" rather than "line" positions. As part of this job selection process, evaluations from her supervisors were necessary. Wallace Koseluk, Director of the Martinez hospital, and Paul Battisti, Director of Region Seven, were asked to submit evaluations of plaintiff to the central office. Mr. Koseluk expressed doubts about plaintiff's ability to work cooperatively with her fellow employees but rated her as "very good." Although Mr. Battisti had worked with plaintiff for a substantial period of time, he refused to forward an evaluation.
On March 30, plaintiff filed a second EEO complaint alleging that the less-than-superior evaluation ("very good") given by Koseluk, and Battisti's failure to make an evaluation, were retaliation for her earlier discrimination charge. This complaint was held in abeyance because it was considered to be premature.
In May, a VA personnel subcommittee met in Washington and recommended four staff positions for plaintiff. These recommendations were rejected by Battisti, who still wished to test plaintiff's mobility. On June 20, 1975, at his urging, plaintiff was offered the position of Assistant Hospital Director Trainee (AHDT) in Palo Alto, a job which could involve frequent transfers. This was a line, not a staff, position and normally would be limited to those who made specific application for the job.
Prior to receiving the AHDT appointment, however, plaintiff had sought and obtained an offer of employment at the University of California Medical School. She began working at the medical school in July. Plaintiff did not tell the VA that she had in fact accepted other employment, but on July 7, she asked to be put on leave without pay, ostensibly until completion of the processing of her second EEO complaint. She stated that she felt that were she to accept any VA appointment prior to resolution or her complaint it might prejudice the investigation or her rights. On July 14, Dr. John Chase, Chief Medical Director of the VA, denied plaintiff's request for leave explaining that applicable regulations did not provide for leave in such situations, and that her EEO investigation would not be prejudiced. Plaintiff thereupon requested reconsideration of her request, stating that otherwise she might be forced into an involuntary resignation. Reconsideration was denied on August 1, 1975.
On August 3, plaintiff submitted her resignation stating that her action was involuntary. Just prior to resigning, she had filed a third EEO complaint alleging that assigning her to the AHDT position and passing her over for the coordinator position had been acts of discrimination and retaliation. In September, plaintiff filed a fourth EEO complaint, asserting that denial of leave without pay was discriminatory and that her resignation was involuntary.
Plaintiff's second, third and fourth complaints were consolidated, and a joint hearing was held in May 1976. The EEO hearing examiner for the VA found that plaintiff's supervisory evaluations, or lack thereof, were motivated by discrimination and that her assignment to the AHDT position resulted from Battisti's retaliatory desire to test her mobility. The examiner did not find that the failure to hire her as coordinator had been discriminatory. As a remedy for this discrimination, the evaluations were removed from plaintiff's file. Since she had already begun to work for the University of California reassignment and back pay were not available. The examiner concluded that plaintiff's other charges were unsupported, and specifically found her resignation to have been voluntary. The VA officially accepted the examiner's findings.
Pursuant to the Federal Personnel Manual, plaintiff appealed the issues of denial of leave and voluntariness of her resignation to the Appeals Review Board of the Civil Service Commission. She did not appeal the finding of non-discrimination in the failure to hire her as coordinator. The Commission affirmed the above findings made by the VA.
In October of 1975, plaintiff had also appealed to the Federal Employees Appeals Authority of the Civil Service Commission because she considered her resignation to be an adverse...
To continue reading
Request your trial
-
Drayton v. Veterans Admin.
...Canino v. EEOC, 707 F.2d 468, 472 (11th Cir.1983); Dean v. United States, 484 F.Supp. 888, 889-90 (D.N.D.1980); Nolan v. Cleland, 482 F.Supp. 668, 672 (N.D. Cal.1979) (dismissing action against supervisory officials of VA), aff'd in part, rev'd in part, 686 F.2d 806 (9th Cir.1982); Stephens......
-
E.E.O.C. v. Federal Reserve Bank of Richmond
...461 F.2d 490, 494 (4th Cir.1972); Grigsby v. North Miss. Medical Center, Inc., 586 F.2d 457, 461 (5th Cir.1978); Nolan v. Cleland, 482 F.Supp. 668, 672 (N.D.Cal.1979). There is absolutely no evidence that the defendant sought by its action "to force [Cooper] to quit." The evidence is quite ......
-
Department of Civil Rights ex rel. Cornell v. Edward W. Sparrow Hosp. Ass'n
...employee voluntarily resigned after he received a low performance evaluation; working conditions were more than tolerable); Nolan v. Cleland, 482 F.Supp. 668; 55 A.L.R.Fed. 411 (N.D.Cal., 1979) (constructive-discharge claim dismissed; resignation was not the product of duress where employee......
-
Doohan v. Bigfork School Dist. No. 38, Bigfork, Mont.
...more than an employee's subjective judgment that working conditions are intolerable. Snell, 643 P.2d at 846, citing Nolan v. Cleland (N.D.Cal.1979), 482 F.Supp. 668, 672; aff'd in part, rev'd in part, 686 F.2d 806, 812-813 (9th Cir.1982). Snell involved a federal law claim of constructive d......