Charley v. United States

208 Ct. Cl. 457, 1975 U.S. Ct. Cl. LEXIS 162, 1975 WL 4185
CourtUnited States Court of Claims
DecidedDecember 17, 1975
DocketNo. 83-74
StatusPublished
Cited by7 cases

This text of 208 Ct. Cl. 457 (Charley v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Charley v. United States, 208 Ct. Cl. 457, 1975 U.S. Ct. Cl. LEXIS 162, 1975 WL 4185 (cc 1975).

Opinion

Dueeee, Senior Judge,

delivered the opinion of the court:

In this civilian pay case plaintiff challenges the actions of various Air Force decision-makers regarding adverse personnel actions against plaintiff. Plaintiff complains that the processes by which he was reduced in rank from grade GS-13 to grade GS-9 were arbitrary and capricious as not in compliance with various applicable personnel regulations and fraught with fatal procedural errors. By his petition and cross-motion for summary judgment, plaintiff seeks position restoration to grade GS-13, back pay and other relief. Defendant moves for summary judgment dismissing plaintiff’s petition, maintaining that the Air Force complied with applicable personnel regulations in effecting plaintiff’s demotion, and the same was not arbitrary, capricious, unsupported by substantial evidence, or procedurally defective.

Plaintiff, a non-veteran, entered Air Force service in 1962 as a civilian Aero space Engineer, grade GS-13, with the Air Force Systems Command, Mira Loma Air Force Station, California. In 1966 plaintiff was reassigned to the Sacramento Air Materiel Area, McClellan Air Force Base at the same grade GS-13 level following a reduction in force at his previous post. In January 1968 plaintiff’s superiors, dissatisfied with plaintiff’s performance of his assigned duties, issued plaintiff a warning letter notifying him of his substandard performance. This letter set out five areas in which plaintiff’s supervisors found his performance inadequate. The letter contained the additional admonishment that plaintiff’s failure to improve his performance would necessitate remedial action in the form of reassignment or removal. In July 1968 plaintiff’s supervisors at McClellan, after careful review of plaintiff’s work since the January warning letter, concluded that plaintiff had not made significant improvement in his performance, and issued plaintiff a notice of proposed removal. Following plaintiff’s reply to this removal notice, his supervisors decided in August 1968 to offer plaintiff reassignment from his GS-13 position to a GS-9 position in lieu of removal. Plaintiff appealed this de[462]*462motion action denying the inadequacy of his work, and charging his superiors with harassment. After hearing on the parties’ charges the Hearing Officer concluded that neither party had substantiated its charges. The Hearing Officer recommended that plaintiff be reinstated in his former position, and in view of the obvious strained relations between plaintiff and his supervisors, that all efforts be made to laterally reassign plaintiff outside of the jurisdiction of Ms former supervisors. The Hearing Officer’s decision was affirmed on review and plaintiff reinstated in his former GS-13 position.

Plaintiff subsequently pursued an intra-agency grievance procedure on his charges of management harassment. The Hearing Officer on this grievance proceeding found that plaintiff had failed to sustain his charges of supervisory harassment but recommended that continuing efforts be made to reassign plaintiff outside of his present supervisors. Plaintiff subsequently appealed this decision to the Secretary of the Air Force.

The strained relations between plaintiff and his supervisors, as previously found by two hearing officers, again came to a head in February 1970 when plaintiff’s superiors again proposed to remove plaintiff for his failure to meet the performance requirements of his grade GS-13 position. This notice specified that the removal action was being proposed for plaintiff’s substandard performance on eight of his fifteen assigned projects. Plaintiff responded in writing to the removal notice, categorically denying the performance inefficiency charges made in the Air Force’s proposed removal notice and alleging that the proposed removal was in retaliation for plaintiff’s submission of the above-mentioned grievance procedure against management. The Deputy Chief of plaintiff’s division notified plaintiff on March 23, 1970, that after careful consideration of the information furnished in plaintiff’s reply to his proposed removal, he had determined that the charges of plaintiff’s substandard performance were fully supported by the evidence and warranted plaintiff’s removal effective March 30,1970.

Plaintiff elected to pursue an intra-agency appeal of the removal decision and requested a hearing. Following the [463]*463initiation of plaintiff’s removal appeal, the Secretary of the Air Force determined that the record on plaintiff’s aforementioned grievance procedure, then pending review in the Office of the Secretary, did not contain sufficient information to reach a firm conclusion on that matter and joined plaintiff’s grievance complaint with his removal appeal for resolution of both issues.

At the hearing on plaintiff’s removal, defendant introduced evidence of plaintiff’s substandard performance on the eight projects specified in the Air Force’s notice of proposed removal. In addition, defendant introduced evidence of plaintiff’s inefficient performance on four additional assigned projects. The Hearing Examiner ruled that defendant’s introduction of these four additional projects not detailed in the removal notice constituted error, but held it was not fatal to the proceeding as management did produce evidence on the eight original projects specified in the notice of proposed removal which plaintiff had the opportunity to contest.

In his decision, the Hearing Examiner pointedly excluded these four additional projects from consideration of the merits of the case. On consideration of the hearing record, excluding the four additional projects introduced by defendant for the first time at plaintiff’s removal hearing, the Hearing Examiner found that management had failed to sustain its charges of plaintiff’s inefficient work performance and that plaintiff had sustained his management harassment charge. Consequently, the Hearing Examiner recommended cancellation of the removal action and retroactive restoration of plaintiff to his grade GrS-13 position. Additionally, the Hearing Examiner recommended that plaintiff not be assigned to a position under his former superiors.

On review of the Hearing Examiner’s decision, the Vice Commander of the Sacramento Air Materiel Area declined to accept the Examiner’s findings and recommendations. The Vice Commander, on consideration of the appellate record, concluded that plaintiff had not been harassed by his superiors and that the preponderance of the evidence fully supported management’s charges of plaintiff’s substandard performance and warranted his removal effective March 30, 1970.

[464]*464Plaintiff requested review by the Secretary of the Air Force of the Sacramento Air Materiel Area Vice Commander’s decision sustaining his removal. On August 3, 1971, the Secretary in a comprehensive and detailed decision amounting to de novo consideration of plaintiff’s case, determined that:

* * * appellant’s work performance was sufficiently substandard to warrant his removal from the Mechanical Engineer, GS-13 position; but his removal from.the service has not been justified because management failed to consider him for reassignment or demotion to other occupational fields as required by AFR 40-714. The decision finds also that appellant’s supervisors had a hostile attitude toward him which adversely affected Ms performance, but that this was not the essential cause of his substandard performance. * * *.

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Bluebook (online)
208 Ct. Cl. 457, 1975 U.S. Ct. Cl. LEXIS 162, 1975 WL 4185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/charley-v-united-states-cc-1975.