Simmons v. Didario
| Decision Date | 14 April 1992 |
| Docket Number | Civ. A. No. 91-6719. |
| Parties | John W. SIMMONS, M.D. v. Albert R. DIDARIO, et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Rosalind M. Plummer, Philadelphia, Pa., for John W. Simmons, M.D.
Claudia M. Tesoro, Office of Atty. Gen., Philadelphia, Pa., for Albert R. Didario, Superintendent, Norristown State Hosp., Karen F. Snider, Acting Secretary, the Dept. of Public Welfare of the Com. of Pennsylvania and Com. of Pennsylvania.
This Kafkaesque case involves a United States Air Force colonel who returned from service in Operation Desert Storm to find that he was suspended without pay at his civilian job because of charges that, to this day, have never been made against him. Rather than defend his innocence against these unknown, and later unmade, charges, Dr. John W. Simmons brought this action against his former employer, pursuant to the Veteran's Reemployment Rights Act, 38 U.S.C. § 2021, et seq.
Congress specifically conferred jurisdiction on the district courts to entertain such actions under 38 U.S.C. § 2022. We also have subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
After a two-day non-jury trial, we on April 10 stated in open court our findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a). This Memorandum will amplify and supplement those Rule 52 findings and conclusions.
John W. Simmons, M.D., is a citizen of the United States and a licensed medical doctor. At all relevant times, he was a member of the Reserves of the United States Armed Forces. In 1990, Dr. Simmons, then 57 years old, was the highest ranking Air Force Officer at the Willow Grove, Pennsylvania, Air Reserve Facility.
Dr. Simmons has been an employee of the Commonwealth of Pennsylvania since 1968 and, since October 11, 1989, has served as Acting Director of Medical Services at Norristown State Hospital. Norristown State Hospital is operated under the auspices of the Department of Public Welfare of the Commonwealth of Pennsylvania.
Dr. Simmons's work as Acting Medical Director and, prior to that, as Assistant Medical Director has always been exemplary. For example, Dr. Simmons's last Performance Evaluation Summary Report (Exhibit P-17), which defendant Albert R. DiDario, the hospital's Superintendent, signed on August 31, 1990, rated Dr. Simmons as exceeding standards in planning and directing, as well as in the quality and quantity of his work. It is worth noting that, in the narrative of the "quality" section of this performance appraisal, the comments addressed to Dr. Simmons state:
The quality of your work is exceptionally good. You keep current thru frequent CME Continuing Medical Education sessions, share your knowledge with your staff at department meetings and are respected for your knowledge and skill as a physician-administrator.
The "quantity" section of the appraisal, which also states that Dr. Simmons "exceeds standards", goes on to say:
Your production is also excellent. You are a self-starter, display initiative, yet at the same time are a team player, keep your supervisor informed. You are willing to put in what time it takes to get the job done.
The Medical Director who preceded Dr. Simmons at Norristown State Hospital was Bruce Edward Carlson, M.D., whose testimony was received in evidence as Exhibit P-14, being the transcript of his deposition of March 5, 1992. Attached to Dr. Carlson's testimony as Exhibit P-2 was the prior Performance Evaluation Summary Report about Dr. Simmons, dated February 1, 1989. After rating Dr. Simmons as exceeding standards in many areas when Dr. Simmons was Assistant Medical Director, Dr. Carlson stated, in the comment section of the appraisal:
Dr. Simmons is an excellent clinician and an extremely reliable clinician. His dedication to his patients and his ability to complete large volumes of work related to committees and special assignment are definite assets. His determination to implement quality assurance programs is obvious. He is always ready to assist the undersigned in providing coverage and developing new programs as needed.
In the fall of 1990, a new Assistant Superintendent for Clinical Services was installed, Linda F. Kunst, M.D. Dr. Kunst, a psychiatrist, was said by Dr. Carlson to be "a very difficult person to work with, no question about that". Carlson N.T. at 19-20. Dr. Kunst soon became the subject of three employee formal grievances in just one month, one of them filed by a Dr. Rita Hanley, who ultimately took Dr. Simmons's job as Acting Medical Director while he was serving in Operation Desert Storm.1 These grievances were filed because the employees alleged that Dr. Kunst was asking them to do what they regarded as improper tasks.
Hours before leaving for active duty in connection with what was then called Operation Desert Shield, Dr. Simmons attended a meeting with Dr. Kunst and Mr. DiDario. By the testimony of all three individuals, the meeting was not a success. Dr. Kunst and Mr. DiDario insisted that Dr. Simmons provide additional material on medical quality assurance issues, notwithstanding the fact that he had done so previously, and, as noted above, was highly regarded in that area by Dr. Carlson. Dr. Simmons was asked to deliver these additional submissions in twenty-four hours. Dr. Simmons strenuously objected to this demand, noting, among other things, the fact that for long periods of time he did not have a secretary and was short of support staff. Mr. DiDario in his testimony agreed that Dr. Simmons's complaint about lack of support and secretarial staff was well-founded. The meeting ended abruptly, and unsatisfactorily from the point of view of all concerned.
On November 29, 1990, Dr. Simmons by letter informed the Director of Personnel at the hospital that his reserve unit was being deployed to the Persian Gulf area, and he requested military leave without pay. The Commonwealth ultimately confirmed Dr. Simmons's military leave status by a letter dated April 24, 1991, which also informed him that he would be entitled to a $400.00 monthly stipend Governor Casey had allocated for returning veterans of the Persian Gulf operations. Within days of his departure from the hospital, Dr. Simmons commenced his service first at Willow Grove and, later, in the Persian Gulf area itself.2
Dr. Simmons's service during Operation Desert Storm took him to Oman and, later, Saudi Arabia. At one point, he served within fifty miles of the Kuwait border, where he was responsible for the health of approximately 20,000 Iraqi detainees. His service in the Gulf region earned him the South West Asian Medal, a Bronze Star and the National Defense Medal. Dr. Simmons also anticipates receiving a decoration from the Kingdom of Kuwait for his service in its liberation.
It is undisputed that, from the time Dr. Simmons left the hospital until he returned to work on July 29, 1991, he was at all times serving "at the request and for the convenience of the Federal Government" within the meaning of 38 U.S.C. § 2024(b)(2).
On June 6, 1991, Dr. Simmons wrote to the Director of Personnel at the Hospital to inform him that Dr. Simmons expected to be free of his reserve duties and would return from his military leave immediately after July 26, 1991.
While Dr. Simmons was serving his country, his former colleagues were not serving him. For reasons never explained in her testimony, Dr. Kunst on February 1, 1990, wrote a letter to Dr. Simmons, addressed to his home, which acknowledged that he "may have disagreed with her process and methods" and acknowledged that she had "backed him into a corner and did not help him to work out of it." Exhibit P-19. When asked at the trial what she meant by these terms, and about the reference, later in her letter, to working "to modify those unhealthy elements", Dr. Kunst was unable to state what she meant.3
In late May of 1991, less than three months after the Iraqi cease-fire, Dr. Kunst personally supervised the removal of all of Dr. Simmons's papers from his working office on the second floor of the building where Dr. Simmons had worked. Dr. Kunst was apparently sufficiently sensitive about this enterprise that she had hospital security personnel present and, it appears, a photographer duly documented the enterprise. Dr. Simmons had also had an office on the first floor of the same building, but by this same time his old office was occupied by Dr. Rita Hanley, who Dr. Kunst had installed as Acting Medical Director. Thus, by the end of May, 1991, there was literally no place left in the hospital for Dr. Simmons.
When Dr. Simmons returned from Operation Desert Storm, on Monday, July 29, 1991, he went to the office of Frances J. Clifford, Director of Personnel at the hospital, and delivered his discharge papers, as well as a copy of his orders through July 26, 1991. His discharge papers documented the fact of Dr. Simmons's honorable discharge from military service. Dr. Simmons could see immediately that something was wrong, because he was treated, in his words, "as though I was leprosy." He was given no papers to sign, but was apparently informally advised that he was being suspended without pay. He was, however, given no documentation of this fact.
Understandably outraged at this "welcome", Dr. Simmons drove to Harrisburg to seek relief from the Secretary of Public Welfare, but to no avail.
On July 31, 1991, Dr. Simmons received a certified letter, ostensibly from Mr. DiDario, but signed by Dr. Kunst. The sole reason given in the letter for the suspension without pay was:
The Investigation of possible Impropriety in the Operation of the Pharmacy Department for which you have Managerial Responsibilities. Defendants' Exhibit D-2.
On August 6, 1991, Mr. DiDario called Dr. Simmons to arrange a meeting...
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...same problem: it is difficult to prove an employer's intent or motivation. See Chipollini, 814 F.2d at 897-98; see also Simmons v. Didario, 796 F.Supp. 166 (E.D.Pa.1992) (applying burden-shifting mechanism in action brought under 38 U.S.C. § 2021(b)(1)(A)). Thus, the McDonnell Douglas devic......