Pascal v. United States, 379-74.

• Decision Date: 20 October 1976
• Docket Number: No. 379-74.,379-74.
• Citation: 543 F.2d 1284
• Parties: Harvey PASCAL v. The UNITED STATES.
• Court: U.S. Claims Court

543 F.2d 1284

Harvey PASCAL v. The UNITED STATES.

No. 379-74.

United States Court of Claims.

October 20, 1976.

Michael E. Goldman, Washington, D.C., for plaintiff; Robert M. Tobias, Washington, D.C., atty. of record.

Stephen G. Anderson, Washington, D.C., with whom was Asst. Atty. Gen. Rex E. Lee, Washington, D.C., for defendant John W. Showalter, Washington, D.C., of counsel.

Before LARAMORE, Senior Judge, and DAVIS and KUNZIG, Judges.

ON PLAINTIFF'S MOTION AND DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

DAVIS, Judge:

Plaintiff Harvey Pascal, then an agent (GS-12) in the Audit Division of the Office of International Operations of the Internal Revenue Service, was originally removed by his agency on six different grounds. The Civil Service Commission sustained the result and four of the supporting reasons. We find it necessary to consider only the first two and confine this opinion to those determinations.¹

After some five years with the Revenue Service in Brooklyn Pascal was transferred to International Operations in Washington. About five months later he was assigned to conduct a tax audit of the Canada Life Assurance Company in Toronto, Canada. This audit lasted for some time and Thanksgiving Day 1972 came in the midst of it. To visit his girl friend in New York, he flew from Toronto to New York on a flight leaving at 10:20 a.m. on Wednesday, November 22d, and arrived back in Toronto on a return flight at 11:00 on Monday, November 27th.

The first charge we take up is that he (a) falsely and intentionally stated in his official time reports that he had worked a full day (8 hours) on both Wednesday, November 22d, and Monday, November 27th, (b) had also falsely and intentionally charged the full day of Friday, November 24th, to official time, and (c) had included, likewise falsely and deliberately, those times during which he was actually not working in Toronto in his certification for per diem payments. The second, related, charge is that Pascal failed to obtained advance authorization to be absent from his place of duty in Toronto on part of that Wednesday, all of Friday, and part of Monday — which were working days.

The bare, hard, objective facts of these two charges are not and have not been contested; the chief dispute is over the administrative finding — within the agency and at both levels in the Civil Service Commission — that plaintiff knew that his reports were false when he made them and also understood that he had not gotten authorization to take the time off.

Pascal's presentation was and is that prior to leaving Washington for Toronto he arranged with his girl friend (Ms. Josephine Hornstein), who was divorced with young children and lived in New York, to see her during the Thanksgiving weekend; she was to come to Toronto if she could get a baby-sitter. Pursuant to this plan he says he bought in Toronto on November 8th an airline ticket between Toronto and New York; he says he was then told, on inquiry, that the ticket was good either way so that Ms. Hornstein could use it from New York if she got a babysitter and he could use it from Toronto if she did not. On Tuesday, November 21st, Ms. Hornstein told him that she was unable to obtain help. He thereupon made reservations to fly from Toronto to New York on Wednesday, November 22d. His testimony was that, though he tried, he could not get accommodations on the 1:15 p.m. or 3:15 p.m. flights (which he said he was told were full) and had to take a reservation on the 10:20 a.m. flight. He testified that he thought he could travel to New York for the holiday weekend on government time (without taking leave of any kind). He added, also, that he had obtained oral authorization from his superior in Washington, over the 'phone, to take Friday off on compensatory leave.

This story is undermined, however, by the expressed disbelief of both the agency and the Civil Service Commission in plaintiff's credibility. Summarizing much of the conflicting evidence,² the Commission's Appeals Examining Office concluded that "Mr. Pascal's credibility has been damaged to the extent that we no longer find his statements worthy of belief. The Board of Appeals and Review was not so forth-right but did say it concurred in the Examining Office's findings regarding the specifications dealing with the New York trip and was "not persuaded that these three specifications resulted from plaintiff's misunderstanding of his rights while in a travel status." These conclusions as to credibility are fully supported by the administrative record and we cannot, nor do we wish to, overturn them. Cf. Sternberger v. United States, 401 F.2d 1012, 1016-17, 185 Ct.Cl. 528, 535-36 (1968).³ It follows that, with plaintiff's testimony thus discounted, there was more than substantial evidence to sustain the two charges we are considering. Indeed, on that basis the record practically compels a determination that plaintiff deliberately falsified his records in order to obtain an advantage to which he would not be entitled and which he knew he could not rightly claim.

With his back against the wall, plaintiff counters that, in any event, there was no regulation expressly forbidding his going to and returning from New York (over the Thanksgiving weekend) on official time. But it is not the principle of the government world that everything is permissible which is not specifically prohibited by regulation or statute. Much is left to the common understanding that work-time is for work and those activities directly related to work — not for personal recreation or personal concerns. Plaintiff, a GS-12 revenue agent of substantial experience, must have known this. We agree with the Appeals Examining Office that "Mr. Pascal has been an employee of the Federal Government for approximately five and one-half (5½) years. We find it beyond belief that an employee with 5½ years of service would believe that he could travel for his own personnal sic pleasure on government time."⁴

Pascal then falls back with a blast of procedural objections, some of which relate only to the charges we have put aside but others touch upon the removal-reasons on which we center. These latter all fall short of their mark. Like many other claimants, plaintiff makes the mistake of believing that any procedural lapse, no matter how unrelated to the end-result, endows him automatically with a right to a judgment and to back-pay. We do not take that position but look to see not only whether an error occurred but whether it substantially affected plaintiff's rights in the removal process. See Rasmussen v. United States, Ct. Cl., 543 F.2d 134, p. 140, decided this day.

In the successive chronological steps of the removal procedure plaintiff first attacks the pre-charge investigation conducted by the IRS Inspection Service as biased and incomplete (contrary to the requirements of the Inspection Manual). On this point it is enough to say that, at least with respect to the two charges on which we focus, plaintiff had a full, trial-type hearing at the Civil Service Commission, at which he had a full and fair opportunity to fill in any alleged gaps, or correct any alleged errors, made by the inspectors. Failure of the Inspection Service to conduct a full or proper pre-charge investigation would not vitiate the removal unless that investigatory failure tainted the adversary administrative hearing or process. Here, that was plainly not true; plaintiff was able to bring out at the hearing any relevant material he considered to have been omitted by the inspectors.⁵

Next, Pascal complains that the agency attempted to coerce him to resign. This was not proved but even if it were it would make no difference. Plaintiff did not resign. The remedy of an employee whose resignation stems from duress is to have the Civil Service Commission treat the involuntary resignation as an adverse personnel action. Gratehouse v. United States, 512 F.2d 1104, 1108, 206 Ct.Cl. 288, 296 (1975). Plaintiff, of course, received precisely that treatment and cannot expect to be placed in a better position simply because the alleged coercion failed to gain its objective.⁶ There is also an assault on the oral reply, but it was given to the charging and removing officer (who was the Director of the Office of International Operations) and he met the standards we have laid down for the proper type of oral reply officer. Peden v. United States, 512 F.2d 1099, 1102, 206 Ct.Cl. 329, 336 (1975); Ricucci v. United States, 425 F.2d 1252, 192 Ct.Cl. 1, motion for reconsideration denied, 432 F.2d 453, 193 Ct.Cl. 120 (1970). The content of the interview was likewise sufficient under Grover v. United States, 200 Ct.Cl. 337, 348-49 (1973); the reply officer seems to have made a conscientious effort to learn Pascal's reasoning and the actual facts as the employee saw them.

Above all, plaintiff charges that the agency was predetermined to remove him. This is a type of attack easy to make but here, as in so many cases, the claimant has not proven that his employer was set upon separating him regardless of how the facts turned out. Of course, if the evidence did turn out to support the first two charges, the agency had made up its mind — but there was nothing improper about that. On their face the charges were not demurrable. The crucial point is that plaintiff has failed to demonstrate that the Service would have been impervious if the proof failed to show that the facts were as charged.

Next, plaintiff complains that the Civil Service examiner accepted written unsworn statements from various persons, thus depriving him of the right to cross-examine and probe. The only such hearsay statements relevant to the two counts we are analyzing were those of the sales manager of the airline (Air Canada) and of an IRS employee who testified that her supervisor had told her that plaintiff...