Sorrells v. Veterans Admin., C-1-82-551.

• Decision Date: 20 December 1983
• Docket Number: No. C-1-82-551.,C-1-82-551.
• Parties: Donald SORRELLS, Plaintiff, v. VETERANS ADMINISTRATION, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

576 F. Supp. 1254

Donald SORRELLS, Plaintiff, v. VETERANS ADMINISTRATION, et al., Defendants.

No. C-1-82-551.

United States District Court, S.D. Ohio, W.D.

December 20, 1983.

COPYRIGHT MATERIAL OMITTED

Paul H. Tobias, Cincinnati, Ohio, for plaintiff.

John Cruze, Nicholas Pantel, Asst. U.S. Attys., Cincinnati, Ohio, for defendants.

OPINION AND ORDER FINDINGS OF FACT AND CONCLUSIONS OF LAW

SPIEGEL, District Judge.

I. BACKGROUND

Prior to April of 1980, the plaintiff, Donald Sorrells, had been employed by the Veterans Administration (VA) for roughly twenty-five years. During this period of employment, Sorrells rose to the position of Medical Administrative Assistant (MAA), a position of considerable responsibility, which requires the MAA on duty to serve as the sole representative of the hospital administration during non-business hours. The record reflects that Sorrells performed his job satisfactorily and that his work exceeded requirements in many respects (Plaintiff's Exh. 4).

Beginning in midyear of 1978, Sorrells began to accumulate absences at an increased rate. Throughout the latter part of 1978 and all of 1979 a pattern developed with Sorrells' absences occurring most frequently in proximity to holidays or scheduled days off. Sorrells testified that this was a particularly difficult period of his life, during which he experienced a variety of health problems as well as some domestic turbulence. Prior to these developments in 1978 and 1979, Sorrells had never had disciplinary action taken against him in twenty-three years of service with the VA.

Sorrells' absenteeism became a source of tension between him and the VA. In October of 1979 the VA initiated a program of sick leave certification for Sorrells. This program required that, when absent, Sorrells provide the VA with a physician's statement that he was instructed to remain at home or that he was fully incapacitated during the relevant period, and that this statement be provided within two days after return to duty. In February of 1980, the VA made the sick leave certification program more stringent by requiring the physician's statements to specifically state the particular duties Sorrells was unable to perform.

Sorrells was formally disciplined on several occasions during this period. He responded to some of these disciplinary actions by filing Equal Employment Opportunity (EEO) complaints, alleging that he was being discriminated against on the basis of his race. Sorrells also requested and received the opportunity to confer with a representative from the Office of the Inspector General in February, 1979 concerning circumstances surrounding his employment.

In February, 1980, Sorrells was absent from work for several days. Upon his return to duty, he tendered a physician's statement which was rejected by his supervisor due to non-compliance with the requirements of the February, 1980 heightened sick leave certification. On February 29, 1980, as a result of these and other attendance problems, the VA proposed that Sorrells be removed from his employment. The notice of proposed removal informed Sorrells that he would remain on active duty until a final determination was made and implemented. Sorrells did not return to duty after receiving the notice of proposed removal, but the record reflects some contact with the VA to inform them that his ill health continued and that he would inform the VA when he was able to return to duty. On March 14, 1980 the VA issued notice to Sorrells that he would be removed from his employment on April 5, 1980.

Sorrells appealed his removal to the Merit Systems Protection Board (MSPB) pursuant to applicable statutes and regulations. See 5 U.S.C. §§ 7511, 7512, 7513(d), 7701 (1982); 5 C.F.R. §§ 752.401(a), (b)(1); 752.405(a) (1982).

Sorrells premised his appeal on two grounds. First, that his removal was retaliatory in nature, motivated by the VA's attitude towards his previous filing of EEO complaints and his meeting with the representative of the Inspector General, and second, that the removal action was contrary to agency regulations since it was not for such cause as would promote the efficiency of the service.

Upon the initial hearing of the plaintiff's appeal, the MSPB affirmed the removal action. The presiding official concluded that the removal was not in the nature of a reprisal and was for such cause as would promote the efficiency of the service. (See Final Opinion and Order of the MSPB, Plaintiff's Exh. 39). Plaintiff then petitioned the MSPB for review of the presiding official's decision pursuant to 5 U.S.C. § 7701(e)(1) (1982). This petition was granted in regard to the February, 1980 events leading to plaintiff's dismissal and the initial determination on this part was reviewed by the entire Board. In its final decision, the MSPB permitted the earlier conclusion that the removal action was not a reprisal to stand. However, the MSPB concluded that the requirement of greater specificity in the February, 1980 sick leave certification was arbitrary and unreasonable and that the removal penalty was too harsh in light of twenty-five years of governmental service. The MSPB concluded that a thirty day suspension would be the maximum penalty warranted. Furthermore, the MSPB directed Sorrells to consider the suspension a final warning to correct his attendance record.

The final opinion and order of the MSPB was filed on July 30, 1982. Shortly thereafter, both Sorrells and the VA received notice of the MSPB's decision. Sorrells had been working at a Sears Department Store, but had concluded that he would need to resign from this job to resume his position with the VA. On August 18, 1982, Sorrells received a call from the Assistant Chief of the VA Personnel Office who informed him that if he returned to duty, another proposed removal notice would be issued to him upon his return. When Sorrells returned to duty on August 30, 1982 he was presented with a notice of proposed removal concerning, with two exceptions, his absence after receipt of the February 29, 1980 notice of proposed removal (post-notice absence).

Sorrells worked in his former capacity at the VA Hospital from August 30, 1982 until October 29, 1982 without any attendance or job performance problems. During this time, Sorrells responded to the proposed removal action in timely fashion including an affidavit attesting to his illness during February and March of 1980. Plaintiff also included a letter from his attorney requesting that the VA reconsider the proposed removal in light of the MSPB's July 30, 1982 decision and this lawsuit which was pending at that time. Nevertheless, after concerted but fruitless attempts to timely obtain medical certification of Sorrells' illnesses in 1980, the VA decided to remove Sorrells and issued a removal notice on October 25, 1982, effective October 29, 1982.

Sorrells appealed this removal to the MSPB, claiming that this action was a reprisal for his previous filing of EEO complaints and pending litigation in federal court. Additionally, Sorrells contended that his discharge was violative of the agency's rules and regulations governing disciplinary actions. The MSPB held a hearing on June 2, 1983, but as yet has rendered no decision.

II. JURISDICTIONAL QUESTIONS

In this action, plaintiff has named as defendants, the VA and Robert P. Nimmo, in his official capacity as administrator of the VA. The plaintiff initiated this action May 28, 1982, within thirty days of receiving a notice of rejection of his claim and right to sue from the Equal Employment Opportunity Commission (EEOC). This notice related to a discrimination complaint filed on May 4, 1979. The circumstances have changed considerably since the filing of this action and the current circumstances are reflected in the amended pleadings. In the amended complaint (doc. 12) plaintiff seeks damages and declaratory and injunctive relief. Plaintiff advances the following theories: First, that the April 5, 1980 removal constituted action in reprisal against the plaintiff for the exercise of his rights in filing EEO complaints and conversing with a representative of the Inspector General; second, that the October 29, 1982 removal was in violation of the applicable VA rules and regulations regarding the imposition of disciplinary action, and, that these irregularities violated plaintiff's constitutional right to due process of law; third, that the October 29, 1982 removal was in retaliation against the plaintiff for the exercise of his rights to file EEO complaints, to file appeals with the MSPB and EEOC, and to file suit in federal district court in seeking redress of grievances regarding his employment; and fourth, that the October 29, 1982 removal was effected in violation of plaintiff's First Amendment rights since the retaliatory action outlined above violates the plaintiff's right to freedom of speech.

Because the existence of independent remedies for the alleged constitutional deprivations may depend on whether plaintiff falls within the scope of the protections of Title VII, analysis of the jurisdictional questions must begin with a preliminary inquiry concerning the application of that Title. Whether plaintiff is entitled to the protections of § 717 of Title VII is a matter not in dispute. Section 717, codified at 42 U.S.C. § 2000e-16(a) (1976 & Supp. IV 1980), extends the right to freedom from discrimination in employment to employees in executive agencies. Defendants do not deny that the VA is such an executive agency, nor do they deny the fact of plaintiff's former employment with the VA.

Dealing next with plaintiff's contention that the second discharge violated his First Amendment rights of freedom of speech, we conclude that this claim is not properly before this Court. In Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), the Supreme Court concluded that Congress intended § 717 of the Civil...