174 Ct. Cl. 936 | Ct. Cl. | 1966
delivered the opinion of the court:
This case is before the court on cross-motions for summary judgment. The versions of the facts, as submitted by the two parties are rather different; however, the factual variances are unimportant in light of our ultimate holding that plaintiff has failed to exhaust her administrative remedies.
Plaintiff’s version of the facts may be briefly summarized-. Effective February 23,1958 plaintiff was employed as a Clerk Typist, Kegistrar Division, Mount Alto Hospital, Washington, D.C., Grade G'S-3. As a result of an incident that arose an connection with plaintiff’s employment on the morning of July 5, 1961, she requested permission of her superiors to consult with Mr. A. H. Monk, Associate Deputy Administrator, Veterans Administration on Vermont Avenue in Washington, D.C. Plaintiff was refused such permission, so she left to see Mr. Monk without permission. Upon her return to Mt. Alto that afternoon, she was directed to see Mr. Webster, Assistant Manager of Mt. Alto. Mr. Webster, according to plaintiff’s affidavit, instructed her not to return to her desk, and told her that she would “hear from the V.A. later.” Thereafter, plaintiff was not allowed to resume her duties. Five days later, she received a notice of proposed removal. Plaintiff filed her answer to the proposed removal on July 17. Ten days later, on July 27, plaintiff received a letter from the Chief of Personnel at Mt. Alto, formally notifying her of the acceptance of her alleged resignation as -of that date. Such alleged resignation was never effectuated,
Defendant, on the other hand, maintains that plaintiff voluntarily absented herself from her job on July 5,1961, and thereafter, by her own choice, did not return to her desk. Defendant agrees with plaintiff’s version of the subsequent events up until the time immediately following the letter to plaintiff from the Hospital Director on October 12, 1961.
It thus becomes readily apparent that issues of fact do exist in this case. An. issue exists over whether plaintiff voluntarily absented herself on July 5, or whether Mr. Webster instructed her not to return to her desk. There is an issue as to whether or not plaintiff reported to the Chief, Registrar Division, as directed, and whether plaintiff resigned by telephone on October 23.
It is a well-known rule in this court, and in other jurisdictions as well, that a motion for summary judgment cannot be sustained when a genuine issue of material fact exists. Court of Claims Rules, Rule 64. 28 U.S.C. App. (1964 ed.); Joseph Horne Co. v. United States, 133 Ct. Cl. 270, 135 F. Supp. 549 (1955); Fed. Rules of Civ. Proc., Rule 56, 28 U.S.C. App. (1964 ed.); Sartor, et al. v. Arkansas Natural Gas Corp., 321 U.S. 620 (1944). However, a material fact is one that will make a difference in the result of the case. Curtis v. United States, 144 Ct. Cl. 194, 168 F. Supp 213 (1958), cert. denied 361 U.S. 843 (1959), rehearing denied 361 U.S. 941 (1960). In the case before us, it makes little difference how these issues of fact are resolved, as plaintiff did not exhaust her administrative remedy.
Plaintiff appealed her case to the Appeals Examining Office of the 'Civil Service Commission on October 17, 1963, more than two years from the time she had actually performed any work at Mt. Alto. On December 13,1963 a decision was rendered which held (1) plaintiff voluntarily resigned her position on October 23,1961, and had no right to appeal such voluntary resignation, and (2) even had the separation been accomplished involuntarily, the Commission would have denied the appeal since it was untimely. This decision was affirmed by the Board of Appeals and Review on January 16, 1964. In effect, plaintiff was told that even if the Civil Service Commission had been able to agree with plaintiff’s version of the facts, no relief could be afforded plaintiff, due to the untimeliness of the appeal. This court has often held that an untimely appeal to the Civil Service Commission constitutes a failure to exhaust an administrative remedy. Gertrude M. Hutton v. United States, 154 Ct. Cl. 34 (1961);
It is therefore held that plaintiff, having failed to exhaust her administrative remedy, cannot recover. Defendant’s motion for summary judgment is granted. Plaintiff’s cross-motion for summary judgment is denied. The petition is dismissed.
Defendant has not attempted to explain the circumstances surrounding the purported resignation of plaintiff on July 27. More curiously, since it appears that such a resignation was tendered, defendant has not explained, why it was not accepted.