Stevens v. Stubbs, Civ. A. No. C81-1693A.

• Decision Date: 22 December 1983
• Docket Number: Civ. A. No. C81-1693A.
• Parties: Russell L. STEVENS, Plaintiff, v. Duane STUBBS, Commanding General, Army and Air Force Exchange Service, Defendant.
• Court: U.S. District Court — Northern District of Georgia

576 F. Supp. 1409

Russell L. STEVENS, Plaintiff, v. Duane STUBBS, Commanding General, Army and Air Force Exchange Service, Defendant.

Civ. A. No. C81-1693A.

United States District Court, N.D. Georgia, Atlanta Division.

December 22, 1983.

William D. Mallard, Jr., Mallard, McDonald & Horder, Atlanta, Ga., for plaintiff.

Myles E. Eastwood, Asst. U.S. Atty., Atlanta, Ga., for defendant.

ORDER

FORRESTER, District Judge.

This action is before the court now on defendant's motion for summary judgment on both counts of plaintiff's complaint. Count I of plaintiff's complaint asserts that plaintiff was downgraded from his position as vehicle operations manager, UA-10, to warehouseman, HPP5, because of plaintiff's physical handicap and in retaliation against plaintiff for assisting a female employee in the exercise of her equal employment opportunity rights. Count II asserts that plaintiff's downgrading was based on, in addition to factors cognizable under Title VII (the physical handicap and retaliation for assisting a female employee in a sex discrimination case), a personal bias against plaintiff on the part of his supervisor and was therefore arbitrary and capricious and violated his due process rights. Plaintiff seeks reinstatement with full back pay and benefits, declaratory relief, costs, attorney's fees and expenses.

I. FACTS.

Plaintiff Russell Stevens was employed by the Army and Air Force Exchange Service (AAFES) for approximately fourteen years. From 1978 to 1981 he was assigned to the AAFES Eastern Distribution Region (EDR) as a UA-10 vehicle manager. During 1979 and 1980 plaintiff experienced health problems which required repeated absences from work. AAFES records reflect that beginning August 6, 1979, after frequent usage of sick leave by plaintiff, AAFES management began making efforts to determine plaintiff's fitness for duty. On August 16, 1979 plaintiff was authorized advance sick leave not to exceed 240 hours in connection with testing and treatment of his undetermined illness. On September 6, 1979 exploratory surgery was performed and his ailment was diagnosed. The attending physician opined that plaintiff's complete recovery would take six to eight weeks. By letter of November 1, 1979 the chief of EDR, Hanon Knight, requested that the Personnel Office assign plaintiff to the AAFES Management Reserve Force (MRF) and subsequently transfer him to another location. Mr. Knight's request stated that "irrespective of Mr. Stevens' physical condition, he has not demonstrated the capacity or capability to deal with everyday pressures and complex routines of this large operational and sensitive assignment." By letter of November 7, 1979 plaintiff himself requested a transfer to a less demanding job because his current assignment had "created tremendous demands on his energy and may have affected his health." On November 28, 1979 Mr. Knight requested that plaintiff's physician review plaintiff's job description and render an opinion as to plaintiff's ability to perform the duties of vehicle manager. Plaintiff's physician, Dr. Hardcastle, responded by letter of December 3, 1979 that he saw no reason why plaintiff could not perform the duties of a vehicle manager and that he had no reason to think that plaintiff would have any permanent disability." On December 10, 1979 plaintiff was informed that

There are no current or projected suitable vacancies in the worldwide AAFES for which you can be considered. Your request for transfer will be made a matter of record in your career management folder. In an effort to broaden the range of possible positions to which you could be transferred, a request for voluntary downgrade transfer to a less demanding position either within your current career field or another would be required.

4. Since you are technically qualified as a vehicle manager (operations), UA-10, you will be continued in that assignment. In the event your job performance is less than adequate, appropriate action may be taken pursuant to Section III, Chapter 3, AR60-21-AFR147-15, Exchange Service Personnel Policies, 1 August 1979.

On May 30, 1980 plaintiff's supervisor, George Driskell, noted in a memorandum that despite the fact that plaintiff had been certified as fit for duty by his physician, he had used 67.5 hours of leave between March 31 and May 30 and expressed the opinion that "Mr. Stevens mentally cannot cope with the day-to-day requirements of his present position."

On his 1979-1980 Performance Evaluation Report (PER) plaintiff received a score of 56 out of a possible 100 and an overall rating of "unsatisfactory." On July 7, 1980 a warning letter was issued to plaintiff which set out specific deficiencies in his performance of his responsibilities and suggested ways of improving. The letter notified plaintiff that:

Upon receipt of this letter you will be placed on a warning period for 60 calendar days to afford you the opportunity to improve your performance. At the end of the warning period, a performance evaluation review will be completed. If it is determined that your performance is satisfactory, you will be continued in your present position; if it is determined that your performance is unsatisfactory, you may be given a lateral or downgrade transfer or separated for unsatisfactory performance.

7. You have the right within five workdays of receipt of this letter to submit a reply orally, in writing, or both to the supervisor. You may be accompanied by a representative during the oral reply if requested.

. . . . .

The warning letter was withdrawn two weeks later when plaintiff again took extensive sick leave.

On August 25, 1980 the Chief of the EDR again requested that the personnel office place plaintiff in the Management Reserve Force so that someone else could perform his functions. The Director of Personnel rejected the request on September 19, 1980 but approved a request for dual incumbency which would insure that plaintiff's position would be filled during his extended leave. Shortly thereafter plaintiff's doctor certified that he was again able to return to full-time work "performing his usual duties without aggrevating sic his physical problems." After plaintiff was so certified, the warning letter was reissued and a new 60-day warning period began.

After approximately 30 days plaintiff's first and second line supervisors, James R. McLemore and Robert L. Paterick, counseled plaintiff on his performance during the first 30 days. Each gave him specific suggestions on how to improve his performance which each told him was still regarded as unsatisfactory.

On December 19, 1980 Mr. McLemore prepared the Personnel Evaluation Report (PER) for October 16, 1980-December 16, 1980. McLemore rated plaintiff's performance as "unsatisfactory" with a numerical score of 26 out of 100 points. Robert L. Paterick and Charles H. Wiesneth, plaintiff's second and third line supervisors, each concurred with McLemore's rating. Each of the three supervisors based his conclusion on plaintiff's unsatisfactory performance during the 60-day period. On January 16, 1981 plaintiff was issued an Advance Notice of Downgrade or Unsatisfactory Performance. The notice stated that the reason for the proposed downgrading was that plaintiff's performance during the warning period had been unsatisfactory and listed specific reasons for that evaluation. Plaintiff responded to the advance notice on January 30, 1981. However, the Final Decision to Downgrade for Unsatisfactory Performance was issued on February 11, 1981. This document states that plaintiff's reply to the advance notice had been given full consideration before the final decision was made and responds to each of plaintiff's arguments.

On February 26, 1981 plaintiff appealed his downgrade to the Commander of AAFES arguing that the "entire process has been planned and carried out as retaliation against me for two incidents in which I have incurred the wrath of transportation branch chief Charles H. Wiesneth." Plaintiff argued that the final decision to downgrade him was merely "the pro forma and predetermined last step in a proceeding which was decided long before." Plaintiff argued that his downgrading was due to a combination of impermissible factors: Discrimination based upon his physical handicap; retaliation for his part in aiding a female employee in her Title VII claim; and retaliation by his superior because he had successfully appealed an earlier PER.

Plaintiff's handicap discrimination and his claim of retaliation for aiding a woman in her Title VII claim were investigated by an Equal Employment Opportunity investigator, and an administrative decision unfavorable to plaintiff was issued on August 14, 1981. Plaintiff's other claim that the entire review process was poisoned by the vendetta against him by his superior, Charles Wiesneth, was eventually heard before hearing examiner Melvin R. Cohen. Plaintiff was represented by counsel, allowed to introduce evidence, examine and cross-examine witnesses, and testify in his own behalf. The hearing examiner expressly considered plaintiff's claims that the supervisors had merely engaged in a pro forma exercise to get rid of him and concluded that the claims were unsupported by credible evidence. The hearing examiner concluded that there was substantial evidence in the record to support the agency decision to downgrade plaintiff and that the decision was not arbitrary or capricious.

II. COUNT II: THE NON-EEO CLAIM.

Plaintiff's non-EEO claim asserts in essence that plaintiff was downgraded arbitrarily and capriciously based on factors unrelated to his job performance, that the entire process by which his job performance was evaluated and the decision to downgrade him was reached was tainted by the prejudice of his superiors, and that the downgrading therefore deprived him of his property interest in his employment without due process of law. Plaintiff seeks review of the action against him...