Schaefer v. United States, 525-78.

• Decision Date: 16 July 1980
• Docket Number: No. 525-78.,525-78.
• Citation: 633 F.2d 945
• Parties: Deane R. SCHAEFER v. The UNITED STATES.
• Court: U.S. Claims Court

633 F.2d 945

Deane R. SCHAEFER v. The UNITED STATES.

No. 525-78.

United States Court of Claims.

July 16, 1980.

David L. Evans, Bismark, N. D., atty. of record, for plaintiff; Fraase, Evans & Fraase, David L. Peterson, and Wheeler, Wolf, Wefald & Peterson, P. C., Bismark, N. D., of counsel.

Thomas W. Trigg, Washington, D. C., with whom was Asst. Atty. Gen. Alice Daniel, Washington, D. C., for defendant; Sheila Berman and William Olivier, of counsel.

Before NICHOLS, KASHIWA and SMITH, Judges.

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

KASHIWA, Judge:

In this action plaintiff, by seeking back pay, accrued benefits and reinstatement, challenges the correctness of his removal as an employee of the United States Department of Labor (Labor). Plaintiff claims both Labor's decision to remove him and the Civil Service Commission's affirmance are invalid, null and void and that he therefore should never have been removed from his position. The parties are presently before the court on cross motions for summary judgment. Defendant asks us to hold plaintiff entitled to no recovery. In support thereof, defendant asks us to hold the action of Labor to be correct and the affirmance by the Civil Service Commission¹ entitled to finality. Plaintiff asks us to find just the opposite. The case was submitted without oral argument on the briefs filed by the parties. There being no genuine issue as to any material fact, for the reasons set out below, we grant defendant's motion and deny plaintiff's motion. Granting defendant's motion also being dispositive of this action, we also dismiss plaintiff's petition in its entirety.

Plaintiff, a preference eligible veteran, was employed by Labor as an inspector in the Occupational Safety and Health Administration (OSHA). His official designation was Compliance Safety and Health Officer. On July 29, 1977, plaintiff's immediate supervisor, Jerome J. Williams, Area Director of the Bismark Area Office of OSHA, provided plaintiff with written notice of a proposal by Labor to remove plaintiff from his position in no less than 30 days. The letter listed five reasons for the proposed adverse action² and fully explained the charges against plaintiff. The letter also informed plaintiff of his right to review the evidence on which the proposed action was based and to respond to the charges either orally or in writing. In response to this notice, on August 1, 1977, plaintiff submitted a written reply to Curtis A. Foster, Regional Administrator, Denver Region, OSHA. He subsequently supplemented his written response with an oral presentation to Foster. On August 24, 1977, Foster notified plaintiff that after carefully reviewing the entire case, and having given full consideration to plaintiff's written and oral presentations, he had concluded the evidence sustained at least two of the specifications substantiating each reason (a total of 19 specifications were sustained) and this was sufficient to establish all five reasons. He also decided this warranted plaintiff's removal under 5 U.S.C. § 7512 (1976)³ to promote the efficiency of Labor. Foster notified plaintiff his removal would be effective at 8:00 a. m., August 29, 1977, and explained plaintiff's appeal rights. Plaintiff was, in fact, removed from his position at that time.

On September 21, 1977, plaintiff, by counsel, appealed his dismissal to the Federal Employee Appeals Authority (Appeals Authority) of the Civil Service Commission, requesting the matter be resolved without a hearing. The Appeals Authority notified OSHA of plaintiff's appeal and requested pertinent information to aid it in reaching a decision. Labor submitted documentation on October 27, 1977, and October 28, 1977. On December 12, 1977, the Appeals Authority provided plaintiff with a copy of the materials submitted by Labor and notified him of his right to present his case at a hearing. Plaintiff, through counsel, made a deliberate choice to waive his right to a hearing and on January 6, 1978, furnished an extensive written response in lieu thereof.

In a decision dated April 20, 1978, the Appeals Authority held that, based on the evidence before it, Labor had proven by a preponderance of the evidence specifications D, E, F, G and H underlying reason 1, specifications A, B, D, F, and G underlying reason 2, specifications A and B underlying reason 3 and specifications B and D underlying reason 5. None of the specifications underlying reason 4 were so proven. It accordingly concluded the validity of reasons 1, 2, 3 and 5 was established by a preponderance of the evidence. The Appeals Authority also decided Labor had complied with the required procedures in effecting plaintiff's removal and that "because of the seriousness of the sustained charges, * * * appellant's removal from the Federal Service was taken for such cause as will promote the efficiency of the service." The Appeals Authority therefore affirmed Labor's removal of plaintiff under 5 U.S.C. § 7512. Plaintiff then brought suit in this court.

In contending his removal was null and void, plaintiff attacks both the correctness of the removal action by Labor as well as insisting we attach no finality to the affirmance of such action by the Appeals Authority. Specifically, plaintiff insists that prior to dismissing him Labor (1) failed to notify him of any proposal to rate his work "unsatisfactory," and (2) failed to, in fact, so rate him. Plaintiff also feels its dismissal of him was procedurally incorrect due to the existence of a "conspiracy" among his fellow employees and superiors to make a mockery of the safeguards afforded him by 5 U.S.C. § 7512(b). With respect to the Appeals Authority's affirmance, plaintiff argues its action was arbitrary, capricious, an abuse of discretion and unsupported by substantial evidence in the record before it. We discuss these points in turn.

Defendant admits that prior to his separation plaintiff did not receive notice of a proposal to rate his work "unsatisfactory" nor was his work so rated. This, however, in no way affects the correctness of Labor's action. Plaintiff was separated from his employment with OSHA under the provisions of the Veterans' Preference Act, 5 U.S.C. § 7512. This statute sets out the three procedural requirements which must all be met prior to effecting a separation. The requirement which plaintiff insists was not met is not found in this statutory provision. The need for notice, and actual rating of "unsatisfactory," is in fact a precondition to removal under the Performance Rating Act, 5 U.S.C. §§ 4301 et seq. (1976); specifically, 5 U.S.C. § 4304(b). In insisting Labor's action was incorrect because of its failure to first rate his work "unsatisfactory," plaintiff is therefore contending that to effect a separation under 5 U.S.C. § 7512, Labor must also comply with the requirements for removal under the Performance Rating Act. This is an entirely erroneous view. The Performance Rating Act and the Veterans' Preference Act provide two alternative and mutually independent means of firing an employee. The procedures for removal under the Performance Rating Act are entirely separate from those of the Veterans' Preference Act, the requirements of the former act being not at all relevant in a removal proceeding conducted under the latter. Armstrong v. United States, 186 Ct.Cl. 539, 544-545, 405 F.2d 1275, 1278-1279 (1969), cert. denied, 395 U.S. 934, 89 S.Ct. 1997, 23 L.Ed.2d 449 (1969); Angrisani v. United States, 172 Ct.Cl. 439, 442-443 (1965). For this reason, we have repeatedly rejected plaintiffs' legal assertions that an unsatisfactory rating is a prerequisite for dismissal under 5 U.S.C. § 7512. E. g., Armstrong v. United States, 186 Ct.Cl. at 545, 405 F.2d at 1279. There was, therefore, no reason for Labor to give plaintiff notice of "unsatisfactory" work and to actually rate it as such. Labor's failure to do so, therefore, does not affect the correctness of its action. As above mentioned, the only requirements which had to be met are the three set out in 5 U.S.C. § 7512. We feel Labor did comply with these requirements.⁴ While agreeing with this, plaintiff insists that by virtue of a "conspiracy" against him, such compliance was a meaningless gesture.

It is a well-established rule that Government officials are presumed to act in good faith in the performance of their duties. E. g., Kalvar Corp. v. United States, 211 Ct.Cl. 192, 198, 543 F.2d 1298, 1301-1302 (1976), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 89 (1977). "The court has always been `loath to find to the contrary,' and it requires `well-nigh irrefragable proof' to induce the court to abandon the presumption of good faith dealing." Kalvar Corp. v. United States, id. By insisting his co-workers and superiors conspired, plaintiff is really alleging they acted in bad faith in the performance of their duties. We could, therefore, find for plaintiff only if he overcomes the presumption of good faith dealings. This plaintiff has failed to do. Plaintiff makes reference to a meeting attended by one of his superiors and some co-workers, plaintiff himself not being present. He would have us characterize this as "a secret meeting * * * held to play out a previously written script * * *." We do not so view this meeting. While plaintiff was not present, the purpose of the gathering was to allow the people present to air their objections to plaintiff's performance. There is no suggestion of these persons acting pursuant to some prepared script. Plaintiff also alleges he was "set up by a programmed and calculated plan to secure his involuntary release from his job." We find no evidence to this effect. Plaintiff also insists that although the written notice of proposed removal was signed by Jerome J. Williams, the removal decision was initiated by Curtis A. Foster, the official who, on behalf of Labor, made the decision to remove plaintiff. P...