Nolan v. Cleland
| Decision Date | 08 September 1982 |
| Docket Number | No. 80-4076,80-4076 |
| Citation | 686 F.2d 806 |
| Parties | 29 Fair Empl.Prac.Cas. 1732, 30 Empl. Prac. Dec. P 33,029 Janiece S. NOLAN, Plaintiff-Appellant, v. Joseph Maxwell CLELAND, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert Lincoln Nolan, Lafayette, Cal., for plaintiff-appellant.
Deborah Seymour, Asst. U. S. Atty., San Francisco, Cal., for defendants-appellees.
Appeal from the United States District Court for the Northern District of California.
Before KENNEDY and TANG, Circuit Judges and HOFFMAN *, Senior District Judge.
This case involves the appeal of the district court's order granting summary judgment 1 in favor of the Veterans Administration (VA) in the Title VII action of Janiece S. Nolan, Ph.D. (Nolan) against the VA. Nolan alleged that she was forced to resign from her VA position because of sex discrimination. Nolan argued that summary judgment was inappropriate because: (1) there was a genuine issue of material fact concerning the VA's denial of her request for leave without pay; (2) there was a genuine issue of material fact concerning the voluntary nature of her resignation; (3) the administrative remedy for her discrimination claims, other than the resignation and leave issues, was inadequate; (4) Title VII was not her exclusive remedy and other jurisdictional bases should not have been stricken; and (5) one of the individual defendants should not have been dismissed because he was a necessary party. We reverse the district court's order of summary judgment on the issue concerning the voluntary nature of Nolan's resignation and affirm the district court's order of summary judgment in all other respects.
Nolan was employed by the VA in several capacities, beginning in 1970 as a research physiologist at the VA Hospital in Martinez, California. In August 1972, she was promoted to Acting Associate Chief of Staff for Research at the Martinez facility. In July 1972, Nolan applied for the VA's Graduate Education Program (GEP). The GEP was a competitive, nationwide program which provided full salary for VA employees and tuition for a graduate degree in health care administration. In return, GEP selectees agreed in writing to continue in VA service for six years following graduation. Also, the selectees agreed to accept any VA assignment for which they were qualified. This commitment required a certain amount of geographic mobility on the selectees' part in the first few years following their graduation. If a selectee did not remain in the VA's service for the six year period, he or she was required to reimburse the VA for the tuition grant.
The VA initially recommended Nolan for the program and she ranked first in the nationwide competition for GEP positions. In March 1973, Nolan was preliminarily selected for the program, but this decision was not formally announced. In May 1973, Nolan married Dr. Robert L. Nolan, M.D., then Chief of Staff at the Martinez VA Hospital. 2 Nolan's marriage seemed to be the underlying cause of her subsequent problems with the VA. It was after the VA was notified of this marriage that certain VA officials expressed doubt concerning Nolan's commitment to the GEP due to their perception of her decreased mobility by virtue of her marriage to the Chief of Staff of a VA station. 3 In June 1973, Nolan was notified that she was not one of the final four GEP selectees.
In July 1973, Nolan filed her first equal employment opportunity (EEO) complaint against the VA alleging that she was not selected for the GEP due to her sex. An EEO investigator found that Nolan had been denied the GEP position due to her sex because of VA officials' inappropriate concern with her assumed lack of after-marriage mobility. Nolan withdrew her EEO complaint when the VA retroactively appointed her to the GEP with full back pay in January 1974. Nolan then signed the GEP agreement which required that she accept any VA assignment for which she was qualified after graduation and remain in VA service for six years. Nolan had started her hospital administration graduate program in the fall of 1973 at the University of California at Berkeley, and continued her studies full time while working half-time with the VA.
In January 1975, Nolan applied in writing to the VA Central Placement Office in Washington, D. C. for a position after her June 1975 graduation as Coordinator of Medical District 29 in San Francisco, a new position being established as part of an executive reorganization. Nolan also expressed her professional preference for "staff" rather than "line" positions. 4 As part of the job selection process, Nolan needed evaluations from her supervisors. 5 Paul O. Battista, Hospital Director of the VA Hospital at Martinez at the time of Nolan's 1973 EEO complaint and Director of Field Operations for Region 7 (which included District 29) when Nolan applied for the coordinator position, and Wallace Koseluk, Hospital Director of the VA Hospital at Martinez at that time and also Nolan's preceptor in the GEP, were asked to complete evaluations of Nolan.
In February 1975, Koseluk submitted an MPI appraisal for Nolan, but did not provide the required qualitative evaluation because he had only "limited personal contact" and "no objective basis" to complete the evaluation. The VA Central Office asked him to submit a second MPI rating and at this time he rated Nolan as "very good" 6 with a score of 47 out of a possible 60. This rating was not higher because Koseluk stated that Nolan had problems cooperating with co-workers. Battista, who had supported Nolan's original GEP application, refused to forward an MPI based on his alleged lack of current knowledge about Nolan's performance.
On March 20, 1975, Nolan filed her second EEO complaint alleging that Koseluk's evaluation and Battista's failure to make an evaluation were retaliation for her previous discrimination complaint. She further alleged that she could not be effectively considered for the Coordinator of Medical District 29 position because of such discrimination based on her sex. The VA determined that this complaint was premature because the coordinator position was not definitely established in the then uncompleted reorganization, and, therefore, the complaint was held in abeyance.
In May 1975, a VA Central Office personnel subcommittee met in Washington, D. C. for placement of GEP graduates. Four staff positions were recommended for Nolan. The subcommittee also stated that Nolan was qualified for the Assistant Coordinator position in District 29, but that this position was uncertain at that time because of the reorganization of the district, and, therefore, no placement recommendation could be made on such position.
In June 1975, Nolan commenced efforts to secure employment outside of the VA. Specifically, she applied for a position at the University of California Medical School. 7 Meanwhile, Battista had rejected the personnel subcommittee's recommendations concerning Nolan's placement in staff positions because he still desired to test her mobility. 8 On June 20, 1975, at Battista's urging, Nolan was offered the position of Assistant Hospital Director Trainee (AHDT) in the Palo Alto, California, VA Hospital. This was not a staff position, but a line position that could involve frequent transfers. This position was usually limited to those who specifically indicated interest in such an assignment. 9
The district court stated that, prior to receiving the AHDT offer, Nolan had sought and obtained a job offer from the University of California Medical School. Nolan argued that she did not accept this position until she had been informed of the AHDT assignment by the VA. 10
Nolan began working at the medical school some time in July of 1975. She did not inform the VA about such employment, but on July 7, 1975, Nolan requested in writing five months leave without pay pending EEO processing of her second complaint concerning the evaluations. Nolan stated that acceptance of the AHDT assignment prior to resolution of her complaint might prejudice the investigation and her rights under applicable laws and regulations. Dr. Chase denied Nolan's request by letter dated July 14, 1975. He stated that possible prejudice from assuming a job assignment during the pendency of an EEO complaint was not included in the appropriate regulations 11 as grounds for leave without pay. Nolan subsequently requested reconsideration of her leave request on July 22, 1975 and stated that denial of her request might force her into an involuntary resignation.
On July 30, 1975, Nolan filed her third EEO complaint alleging that the AHDT assignment and non-selection for the coordinator position constituted reprisal for her prior complaints. Dr. Chase denied Nolan's request for reconsideration on August 1, 1975 and ordered Nolan to report to the AHDT position in Palo Alto on August 4, 1975. On August 3, 1975, Nolan resigned from the VA and stated that her resignation was involuntary, and a product of the discrimination that resulted in her denial of leave and was also the basis for March 30, 1975 and July 30, 1975 EEO complaints. On September 12, 1975, Nolan filed a fourth EEO complaint alleging that denial of her leave request was discriminatory and her resignation was involuntary, and in effect a constructive discharge. 12
On October 8, 1975 Nolan filed an appeal of the leave and resignation issues with the Federal Employees Appeals Authority (FEAA) of the Civil Service Commission as an adverse action under FPM § 752. She was advised that 5 CFR § 772.306(a)(2) required an election of remedies. She could elect to pursue adverse action channels (FPM § 752) or EEO channels (FPM § 713). Nolan elected to proceed with the § 713 EEO appeal and § 752 adverse action appeal was cancelled.
Nolan's second, third, and fourth EEO complaints were...
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