Shaposka v. United States, 220-75.

Decision Date19 October 1977
Docket NumberNo. 220-75.,220-75.
Citation563 F.2d 1013
PartiesBert C. SHAPOSKA v. The UNITED STATES.
CourtU.S. Claims Court

Sheldon I. Cohen, Arlington, Va., attorney of record, for plaintiff.

Gerald L. Schrader, Washington, D.C., with whom was Asst. Atty. Gen. Barbara Allen Babcock, Washington, D.C., for defendant.

Before DURFEE, Senior Judge, and NICHOLS and BENNETT, Judges.

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

DURFEE, Senior Judge.

This civilian pay case involves the dismissal of a physically handicapped person from his job as a GS-7 Editor with the National Archives and Records Service of the General Services Administration (GSA). Plaintiff seeks to overturn the decision of the Civil Service Commission (CSC) which upheld his termination. Plaintiff's argument is premised on three principal grounds: first, plaintiff's procedural rights under 5 U.S.C. § 7501 (1970)1 were violated since he was in competitive status at the time of his termination, and he was afforded only those termination procedures due a person serving a probationary period; second, plaintiff was terminated as a result of discrimination against him due to his physical handicap; third, the catalyst for plaintiff's termination was a letter he wrote to Congressman Frank M. Clark concerning alleged injustices against plaintiff at his job. For the reasons set forth below, we grant plaintiff's cross-motion for summary judgment.

Plaintiff, a deaf-mute, was hired by the Archives on May 8, 1972. Plaintiff had been employed by the Government in career-conditional status within three years prior to his hiring by the Archives, although such employment had ended some time before he was offered the position with the Archives. Prior to his hiring by the Archives, plaintiff was on an appropriate Civil Service appointment register.

The CSC Form 50 (Notification of Personnel Action) recorded plaintiff's hiring by the Archives as a temporary appointment not to exceed one year, and cited 5 C.F.R. § 316.402(b)(1) (1972)2 as the authority for such an appointment. Defendant concedes that such an appointment was an error because it did not fall under any of the categories for temporary limited appointment listed in the Federal Personnel Manual (FPM) ch. 316, subch. 4-1(a).3 Defendant maintains that it had intended to make plaintiff's hiring a temporary limited appointment not to exceed 700 hours. This latter-type appointment can be utilized by defendant to hire severely handicapped persons under the authority of FPM ch. 316, subch. 4-7, which provides, in relevant part:

4-7. Temporary Limited Appointments Outside Registers
* * * * * *
c. Appointment for 700 hours or less.
* * * * * *

(4) Handicapped applicants. To facilitate the employment of persons with severe physical handicaps and those who have been restored to mental health after treatment for mental or emotional disorder; agencies are encouraged to use this authority to provide initial or trial temporary employment for these applicants. Temporary limited appointment for not to exceed 700 hours may be made even though the position to be filled is a continuing one.

The purpose of this special appointment procedure for the severely handicapped is explained in FPM ch. 306, subch. 4-2:

4-2. Appointment of the physically handicapped
* * * * * *
c. Using trial appointment procedure. Many severely handicapped people need a trial appointment because they are unable to obtain competitive appointment even with examination modification or referral service, or both, through the Co-ordinator program. One barrier to their employment may be inability to be selected competitively even though they have been trained and are qualified to perform the job tasks. Another barrier may be employer reluctance to hire them for fear they will not be able to perform on the job efficiently or safely, or fit in with and be accepted by the work force. These obstacles can often be overcome by use of the 700-hour temporary trial appointment authority (chapter 316, section 4-7c(4)). * * *

Defendant made no changes in its recording of plaintiff's employment status at the completion of the initial 700 hours of plaintiff's employment, which would have occurred on or about September 6, 1972. On October 18, 1972, plaintiff asked the agency personnel office if it would be possible to make arrangements for him to qualify for health insurance. Upon further inquiry into this matter and ascertainment of plaintiff's satisfactory job performance, defendant attempted to correct its original error of classifying plaintiff's hiring as a temporary limited appointment not to exceed one year. On November 26, 1972, defendant purported to convert by reinstatement plaintiff's appointment to one of career-conditional status under authority of 5 C.F.R. § 315.401 (1972), which provides, in relevant part:

Reinstatement.
(a) Agency authority. An agency may reinstate a person who had a competitive status or was serving probation when he was separated.
* * * * * *

The Appeals Examining Office of the CSC subsequently ruled that the conversion by reinstatement to career-conditional status should have an effective date of September 6, 1972, at the end of plaintiff's first 700 hours of employment.

Although plaintiff's work product was considered quite satisfactory throughout his employment with the Archives, some problems developed in the relationship between plaintiff and certain other employees of the Archives. Defendant contends that there were several incidents where plaintiff either exhibited displays of temper or wrote offensive notes to fellow employees. In light of these alleged difficulties, plaintiff was temporarily assigned in February 1973 to the National Audio-Visual Center, a branch of the Archives, in Suitland, Maryland.

After unsuccessfully attempting to be returned to his normal job assignment, plaintiff wrote to Congressman Clark regarding his job situation on May 24, 1973. The Congressman, in turn, wrote to GSA on June 7, 1973, inquiring into the circumstances of plaintiff's job assignments. GSA responded to the Congressman's inquiry by forwarding a report on July 10, 1973 concerning plaintiff's employment record. The report concluded by stating that plaintiff was to be terminated. By letter of July 18, 1973, plaintiff was notified of his separation, effective August 1, 1973.

Since defendant considered plaintiff to be in probationary status at the time of his termination, the notification of separation informed plaintiff that, besides this notice itself, his procedural rights were limited to an appeal to the CSC only on those grounds specified in 5 C.F.R. § 315.806 (1973).4 These grounds include discrimination based on race, color, religion, sex, national origin, political reasons, marital status, or physical handicap. Defendant admits plaintiff was not afforded those rights to which a person in competitive status (i.e., one who completed a one-year probationary period under a career-conditional appointment, as defined in 5 C.F.R. § 212.301 (1973)) would be entitled under 5 U.S.C. § 7501, specifically, notice of proposed adverse action and an opportunity to make a written reply.

Plaintiff subsequently exhausted his administrative remedies before the CSC. The CSC Appeals Examining Office held that plaintiff was still in his probationary period when terminated because the agency had the authority to appoint plaintiff to a temporary limited appointment not to exceed 700 hours at the time he was hired. The Appeals Examining Office viewed as a non-prejudicial error the erroneous recording of plaintiff's hiring as a temporary limited appointment not to exceed one year. Plaintiff's claims that his termination was a result of discrimination due to his physical handicap and that his dismissal was made in response to the fact that he wrote Congressman Clark were also denied. The CSC Appeals Review Board affirmed the decision of the Appeals Examining Office.

A person appointed to a career-conditional position must normally serve a one-year probationary period before competitive status is acquired. 5 C.F.R. §§ 212.301, 315.302, and 315.802 (1973). Only persons in competitive status are eligible for the procedural safeguards of 5 U.S.C. § 7501, in light of 5 C.F.R. § 212.401 (1973). Persons serving a probationary period are entitled only to the notice provisions of 5 C.F.R. § 315.804 (1973) and appeals to the CSC based on certain acts of discrimination under 5 C.F.R. § 315.806 (1973), unless the reasons for dismissal are based on conditions arising before that individual's appointment. If we were to decide that plaintiff's May 8, 1972 appointment placed him in career-conditional status, thus commencing the one-year probationary period on that date, then plaintiff should have been afforded the procedural rights to which he was entitled by 5 U.S.C. § 7501 because the one-year probation would have expired before his termination on August 1, 1973.

The basis of defendant's argument that plaintiff was a probationary employee at the time of his termination, not entitled to the procedural rights of 5 U.S.C. § 7501, is that defendant intended to make plaintiff's hiring a temporary limited appointment not to exceed 700 hours and had the authority to do so, in light of plaintiff's severe handicap, under FPM ch. 316, subch. 4-7(c)(4). Plaintiff maintains that he had held career-conditional status in Government employment within three years prior to his hiring by the Archives, was on an appointment register, and should have been appointed as a career-conditional, rather than a temporary, employee.

We hold that plaintiff's hiring on May 8, 1972 placed him in career-conditional status as of that date. Plaintiff's one-year probationary period had expired before his termination on August 1, 1973, and he was thus in competitive status at that time. Consequently, plaintiff was entitled to the procedural safeguards of...

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