633 F.2d 945 | Ct. Cl. | 1980
delivered the opinion of the court:
In this action plaintiff, by seeking back pay, accrued benefits and reinstatement, challenges the correctness of his removal as an employee of the United States Department of Labor (Labor). Plaintiff claims both Labor’s decision to remove him and the Civil Service Commission’s affirmance are invalid, null and void and that he therefore should never have been removed from his position. The parties are presently before the court on cross motions for summary judgment. Defendant asks us to hold plaintiff entitled to no recovery. In support thereof, defendant asks us to hold the action of Labor to be correct and the affirmance by the Civil Service Commission
Plaintiff, a preference eligible veteran, was employed by Labor as an inspector in the Occupational Safety and Health Administration (OSHA). His official designation was Compliance Safety and Health Officer. On July 29,
On September 21,1977, plaintiff, by counsel, appealed his dismissal to the Federal Employee Appeals Authority
In a decision dated April 20, 1978, the Appeals Authority held that, based on the evidence before it, Labor had proven by a preponderance of the evidence specifications D, E, F, G and H underlying reason 1, specifications A, B, D, F and G underlying reason 2, specifications A and B underlying reason 3 and specifications B and D underlying reason 5. None of the specifications underlying reason 4 were so proven. It accordingly concluded the validity of reasons 1, 2, 3 and 5 was established by a preponderance of the evidence. The Appeals Authority also decided Labor had complied with the required procedures in effecting plaintiffs removal and that "[b]ecause of the seriousness of the sustained charges, * * * appellant’s removal from the Federal Service was taken for such cause as will promote the efficiency of the service.” The Appeals Authority therefore affirmed Labor’s removal of plaintiff under 5 U.S.C. § 7512. Plaintiff then brought suit in this court.
In contending his removal was null and void, plaintiff attacks both the correctness of the removal action by Labor as well as insisting we attach no finality to the affirmance of such action by the Appeals Authority. Specifically, plaintiff insists that prior to dismissing him Labor (1) failed to notify him of any proposal to rate his work "unsatisfactory,” and (2) failed to, in fact, so rate him. Plaintiff also feels its dismissal of him was procedurally incorrect due to the existence of a "conspiracy” among his fellow employees and superiors to make a mockery of the safeguards afforded him by 5 U.S.C. § 7512(b). With respect to the Appeals Authority’s affirmance, plaintiff argues its action was arbitrary,
Defendant admits that prior to his separation plaintiff did not receive notice of a proposal to rate his work "unsatisfactory” nor was his work so rated. This, however, in no way affects the correctness of Labor’s action. Plaintiff was separated from his employment with OSHA under the provisions of the Veterans Preference Act, 5 U.S.C. § 7512. This statute sets out the three procedural requirements which must all be met prior to effecting a separation. The requirement which plaintiff insists was not met is not found in this statutory provision. The need for notice, and actual rating of "unsatisfactory,” is in fact a precondition to removal under the Performance Rating Act, 5 U.S.C. §§ 4301 et seq. (1976); specifically, 5 U.S.C. § 4304(b). In insisting Labor’s action was incorrect because of its failure to first rate his work "unsatisfactory,” plaintiff is therefore contending that to effect a separation under 5 U.S.C. § 7512, Labor must also comply with the requirements for removal under the Performance Rating Act. This is an entirely erroneous view. The Performance Rating Act and the Veterans Preference Act provide two alternative and mutually independent means of firing an employee. The procedures for removal under the Performance Rating Act are entirely separate from those of the Veterans Preference Act, the requirements of the former act being not at all relevant in a removal proceeding conducted under the latter. Armstrong v. United States, 186 Ct. Cl. 539, 544-545, 405 F. 2d 1275, 1278-1279 (1969), cert. denied, 395 U. S. 934 (1969); Angrisani v. United States, 172 Ct. Cl. 439, 442-443 (1965). For this reason, we have repeatedly rejected plaintiffs’ legal assertions that an unsatisfactory rating is a prerequisite for dismissal under 5 U.S.C. § 7512. E.g., Armstrong v. United States, 186 Ct. Cl. at 545, 405 F. 2d at 1279. There was, therefore, no reason for Labor to give plaintiff notice of "unsatisfactory” work and to actually rate it as such. Labor’s failure to do so, therefore, does not affect the correctness of its action. As above mentioned, the only requirements which had to be met are the three set out
It is a well-established rule that Government officials are presumed to act in good faith in the performance of their duties. E.g., Kalvar Corp. v. United States, 211 Ct. Cl. 192, 198, 543 F. 2d 1298, 1301-1302 (1976), cert. denied, 434 U. S. 830 (1977). "The court has always been 'loath to find to the contrary,’ and it requires 'well-nigh irrefragable proof to induce the court to abandon the presumption of good faith dealing.” Kalvar Corp. v. United States, id. By insisting his co-workers and superiors conspired, plaintiff is really alleging they acted in bad faith in the performance of their duties. We could, therefore, find for plaintiff only if he overcomes the presumption of good faith dealings. This plaintiff has failed to do. Plaintiff makes reference to a meeting attended by one of his superiors and some coworkers, plaintiff himself not being present. He would have us characterize this as "[a] secret meeting * * * held to play out a previously written script * * *.” We do not so view this meeting. While plaintiff was not present, the purpose of the gathering was to allow the people present to air their objections to plaintiffs performance. There is no suggestion of these persons acting pursuant to some prepared script. Plaintiff also alleges he was "set up by a programmed and calculated plan to secure his involuntary release from his job.” We find no evidence to this effect. Plaintiff also insists that although the written notice of proposed removal was signed by Jerome J. Williams, the removal decision was initiated by Curtis A. Foster, the official who, on behalf of Labor, made the decision to remove plaintiff. Plaintiff, accordingly insists Foster, in
Plaintiffs belief that the Appeals Authority action was arbitrary, capricious and an abuse of discretion rests upon his assertion that the Appeals Authority (1) prior to rendering its April 20, 1978, decision failed to give due consideration to evidence he submitted to it and (2) in reaching its decision held admissible hearsay evidence introduced by Labor. His contention that its decision was not supported by substantial evidence rests primarily upon the Appeals Authority’s basing its affirmance on such hearsay evidence. Plaintiff would have us hold hearsay evidence can never amount to the "substantial evidence” needed to sustain agency removal of an employee.
The short answer to this first objection is that the Appeals Authority did give due consideration to the evidence plaintiff submitted to it. It, however, simply chose to attach greater weight to the evidence submitted by Labor. Before considering the objections arising out of the Appeals Authority’s admission of, and reliance on, hearsay evidence, it is necessary to in some detail set out the reasons and specifications asserted against plaintiff and the evidence before the Appeals Authority. We do so only to the extent necessary to show why its decision is entitled to finality.
Plaintiff claimed in his official OSHA reports that on October 27,1976, he conducted a follow-up inspection at the
I was told to be ready to go on an inspection trip with Mr. Schaefer on or about the 27th of October 1976. During this trip we stopped at the American Crystal Sugar Company at Drayton, North Dakota, for the purpose of eating lunch at the plant restaurant. No inspection at all was planned for this facility. After lunch, as we were leaving, we saw a Mr. Fischer, one of the plant officials. I was introduced as a new OSHA member who had never seen a sugar beet plant and Mr. Schaefer asked if it was OK if he showed me around. Mr. Fischer readily agreed and asked one of the foremen to accompany us. At no time did we take inspection notes nor make any effort to contact either of the union officials. As we were leaving we passed Mr. Fischer’s office and when he asked about the results of our inspection, Mr. Schaefer replied, "What inspection? I wasn’t even here today!” Later he did write this up as an official inspection.
We continued our trip and just before arriving in Bismarck, Mr. Schaefer started asking of me the question, what are we going to tell Jack [plaintiffs supervisor]? I told him I did not know what he was talking about and he said that since we had not done much on the trip Jack would be mad at us. Finally, he said he would write up the American Crystal Sugar Company * * * as [an] inspection[ ] and this would make it look as though we had done more on the trip. * * *
* * * We arrived [at American Linen] on one of the coldest days of the winter. I told Mr. Schaefer that I should take the carbon monoxide analyzer inside because the cell would freeze and render the instrument worthless until it could be thoroughly warmed up again. He told me to leave it in the car, that it might upset management. * * * We started the inspection and by the time I was permitted by Mr. Schaefer to bring the carbon monoxide analyzer in, the cell was frozen solid and the machine was rendered worthless for its designed purpose. I asked Mr. Schaefer if I could go to the car and bring in the Bendix pump and carbon monoxide tubes[;] he told he no, that if management saw it they would ask what it was for and when I mentioned carbon monoxide they would get all upset with us. Therefore, no carbon monoxide tests at all were conducted by us, but Mr. Schaefer made the official report look as ■ though we had performed such test[s] and had found the atmosphere to be free of carbon monoxide.
In addition, Hensley’s statement indicated that even though two union stewards were present at American Linen, plaintiff made no effort to contact the stewards and conducted his inspection tour without having either one accompany him.
On September 9, 1976, plaintiff, accompanied by Eric Ramirez, went to Fargo, North Dakota, to conduct a followup inspection of an addition being constructed onto the Econ-O-Tel Motel. The construction project was being carried out by Twin City Construction Company (Twin City). Feeling this inspection to also be improperly conducted, OSHA cited it as specification G of reason 2. Like
* * * [0]n October 9, 1976, we went to Fargo to do some follow-ups and general inspections. We checked into the Econ-O-Tel about 3:00 or 3:30 PM. The motel was having an addition constructed by Twin City Construction Company. Mr. Schaefer let me know that he had previously inspected this site and was planning on doing a follow-up. * * * When we reached the Econ-O-Tel, I asked, "Are we ready to do the follow-up?” He said, "No, we’re going to check in first.” We had enough time to do a follow-up based on the amount of paper work there was on the previous citation, but he said we should check in first. We went ahead and checked in, then went to our respective rooms where Deane said he had some paper work to do. So I figured that the follow-up would be performed the first thing next morning. But at approximately 5:30 PM, Mr. Schaefer came by and said it was time to do the follow-up. * * * Mr. Schaefer said we didn’t need any hard hats, or anything else, since the employees and employer representatives had left the site for the day. * * * We walked around and Mr. Schaefer took pictures of the items that were supposed to be abated. Mr. Schaefer did not make contact with anyone on the site. There was no opening or closing conference and yet it was written up as a follow-up inspection. I raised a question about performing a follow-up in this manner and he said something about it either being contested or might be contested, and that if there was going to be a contestment, that he didn’t want to talk to anybody and stir up any more trouble and open up a new "can of worms.”
On October 27, 1976, plaintiff accompanied by Hensley traveled to Pembina, North Dakota, on business. Plaintiff remained there 2 3/4 days. Upon his return to Bismarck, he submitted a travel voucher claiming reimbursement for 2 3/4 days, based on average lodging of $11 per day at a motel in Halleck, Minnesota. OSHA determined that plaintiff had in fact stayed with relatives, not at a motel, and therefore had not incurred any expense for lodging. Plaintiffs action gave rise to specification B of reason 3 (falsification of travel vouchers and excessive claims for reimbursement).
On several occasions, Mr. Schaefer has called me at the office and asked if Mr. Jack Williams (Area Director) was in and what was going on, saying that he had just returned home from several days on the road. This would be around 2:00 PM. He would then say not to mention his call and that he would be in the next morning. His object was to charge excessive per diem and motel costs, which he did and bragged to me about.
Finally, with regard to the Pembina trip which gave rise to this specification, Hensley’s statement indicates plaintiff advised Hensley to deliberately inflate his own motel costs in filling out his reimbursement voucher.
Sometime prior to November 17, 1976, plaintiff inspected the Super Valu Warehouse (Super Valu). On November 17, 1976, Hensley accompanied plaintiff to Super Valu, where plaintiff purchased four cases of fruit juice. OSHA subsequently determined such purchase to be at a below retail price. The purchase gave rise to specification B under reason 5 (solicitation and/or acceptance of gratuities, arrangements or offerings). The portion of Hensley’s statement dealing with the November 17, 1976, visit is as follows:
* * * Our first stop [in Fargo] was at the Super Valu warehouse. Mr. Schaefer told me that we were not there to inspect so I should wait in the car. He said he had inspected there about a year earlier and ever since then he always stopped for a visit whenever he was in Fargo.*554 He came out approximately 45 minutes later with about four cases of orange and grapefruit juice. He told me that ever since he had inspected there he could get items by the case at the same price grocery stores paid for them. * * * [Emphasis supplied.]
In his own affidavit, plaintiff admitted he made this purchase.
The Appeals Authority sustained all of the above specifications. Since it held no hearing, all the evidence before it, both that submitted by Labor and plaintiff, consisted of documents. To the extent the truth of the matter asserted therein was relevant to the Appeals Authority’s action, these documents technically were hearsay. We, however, cannot agree with plaintiffs contention that the Appeals Authority’s admission of hearsay evidence made its decision arbitrary, capricious and an abuse of discretion. It is well established that in deciding whether to affirm an agency’s separation of an employee, hearsay evidence is admissible before the Civil Service Commission. E.g., West v. United States, 207 Ct. Cl. 513 (1975); Verrault v. United States, 216 Ct. Cl. 386 (1978). The only precondition we impose is that such evidence be "sufficiently convincing to a reasonable mind and * * * reveals sufficient assurance of its truthfulness.” Pascal v. United States, 211 Ct. Cl. 183, 191, 543 F. 2d 1284, 1289 (1976). Based upon examination of the record before the Appeals Authority, we feel the statements of Hensley, Ramirez and Stokes did all meet this requirement.
In reviewing administrative decisions, hearsay evidence can, in appropriate cases, amount to substantial evidence. Verrault v. United States, supra; Wathen v. United States,
Turning to the admissible evidence before the Appeals Authority, we feel its affirmance of specifications B, D and G of reason 2, specification B of reason 3, and specification B of reason 5 was supported by substantial evidence in the record as a whole. Evaluated relative to all the other admissible evidence, the statements of plaintiffs co-workers, to the extent detailed above, possessed sufficient probative force for the Appeals Authority to reasonably conclude that all of these specifications against plaintiff were in fact true. Hensley’s account of the visit to Crystal Sugar is adequate to support the conclusion that notwithstanding plaintiff reported the visit as an inspection, no inspection in fact occurred. Fabricating an inspection
Additionally, while we note that in appropriate cases uncorroborated hearsay can be substantial evidence, Verrault v. United States, supra, these statements of plaintiffs co-workers all contained corroboration in the administrative record. The record before the Appeals Authority contained the affidavit of Crystal Sugar’s Administrative Services Manager. He confirmed Hensley’s account of this trip as just a tour which plaintiff subsequently chose to write up as an inspection. On February 2, 1977, a follow-up inspection of American Linen was conducted by another OSHA investigator. This report, signed by the investigator, indicated that at the time of plaintiffs January 10, 1977,
In insisting these specifications are unsupported by substantial evidence, plaintiff makes two final arguments. Plaintiffs version of the facts surrounding the incidents giving rise to these specifications, as contained in his written submission to the Appeals Authority, is somewhat different from the facts as represented by Hensley, Ramirez and Stokes. Plaintiff feels that in light of this factual dispute, there could not be substantial evidence supporting the sustaining of these specifications. Plaintiff is incorrect in his views. The possibility of drawing from the evidence before it two inconsistent conclusions as to these specifications does not prevent the Appeals Authority’s conclusion upholding the specifications from being supported by substantial evidence. See Illinois Central Railroad v. Norfolk & Western Railway, 385 U. S. 57, 69 (1966). It was entirely reasonable for the Appeals Authority to attach greater weight to the statements of plaintiffs co-workers and less to plaintiffs own statement. By doing so, there was substantial evidence sustaining the specifications. Plaintiff also contends that notwithstanding hearsay evidence may be
Since all of these specifications were supported by substantial evidence, the Appeals Authority’s affirmance of the OSHA decision to remove plaintiff for the efficiency of Labor was supported by substantial evidence and was neither arbitrary nor capricious. These specifications establish plaintiff had committed the improprieties described in reasons 2, 3 and 5. There is no question these actions, especially when considered cumulatively, warranted plaintiffs removal.
Plaintiffs final argument is directed to the appropriateness of granting defendant’s motion for summary judgment. Plaintiff asserts that since his version of the facts surrounding the incidents giving rise to the specifications is different from that set out by Hensley, Ramirez and Stokes, there presently exists a dispute as to facts material to the granting of defendant’s motion. This dispute supposedly bars our granting defendant’s motion. In making this argument, plaintiff misapprehends our function as a reviewing court. We are here reviewing the Appeals Authority’s decision to see whether to attach finality to it. The Appeals Authority did consider plaintiffs version of the facts but chose to disbelieve plaintiff and instead believe the statements of plaintiffs co-workers. On review of its decision, we are concerned with this factual dispute only to the extent of determining whether notwithstanding plaintiffs contrary assertion as to the facts, the statements of plaintiffs co-workers amounted to substantial evidence. Having held such statements did amount to substantial evidence, the existence of a factual dispute on the administrative level is no longer relevant in our review of its
CONCLUSION
The Department of Labor’s removal of plaintiff was procedurally correct. The Appeals Authority’s decision sustaining this removal action being supported by substantial evidence and being neither arbitrary, capricious nor an abuse of discretion is entitled to finality. E.g., Tucker v. United States, ante at 266; Shapley v. United States, 214 Ct. Cl. 783, 786 (1977). Attaching finality to its decision means plaintiffs removal was proper, entitling him to neither reinstatement nor back pay. This being dispositive of the issues in plaintiffs petition and there being no factual dispute preventing our granting a motion for summary judgment, we grant defendant’s motion for summary judgment and dismiss plaintiffs petition in its entirety.
Effective January 1,1979, the Civil Service Commission was reorganized into the Merit Systems Protection Board and the Office of Personnel Management. Since all actions complained of in the petition occurred prior to January 1,1979, the reviewing agency will be referred to throughout as the Civil Service Commission.
Each of the five reasons consisted of a different type of employee misconduct. The five reasons were: (1) failure to report violation of OSHA standards, (2) failure to properly conduct inspections and/or follow-up inspections in violation of OSHA regulations, (3) falsification of travel vouchers and excessive claims for reimbursement, (4) purchasing at Government expense supplies for personal use, and (5) solicitation and/or acceptance of gratuities, arrangements or offerings.
5 U.S.C. § 7512 provides in relevant part as follows:
"§ 7512. Cause;procedure; exception
"(a) An agency may take adverse action against a preference eligible employee, or debar him for future appointment, only for such cause as will promote the efficiency of the service.
"(b) A preference eligible employee against whom adverse action is proposed is entitled to—
"(1) at least 30 days’ advance written notice, except when there is reasonable cause to believe him guilty of a crime for which a sentence of imprisonment can be imposed, stating any and all reasons, specifically and in detail, for the proposed action;
"(2) a reasonable time for answering the notice personally and in writing and for furnishing affidavits in support of the answer; and
"(3) a notice of an adverse decision.”
First, Labor notified plaintiff on July 29, 1977, of its proposed removal action; it did not actually remove plaintiff until August 29, 1977. This thus met the 30-day requirement of 5 U.S.C. § 7512(b)(1). Second, Labor allowed plaintiff 15 calendar days from his receipt of the letter to respond to the reasons and specifications it contained. Plaintiff submitted a lengthy written response to Curtis A. Foster, Regional Administrator of OSHA, on August 1,1977; and two days later, he and his wife orally presented justifications to Foster. Plaintiffs extensive responses evidence the reasonableness of the 15-day reply period allowed by the agency. This met 5 U.S.C. § 7512(b)(2). Finally, Foster sent plaintiff the notice of an adverse decision required under 5 U.S.C. § 7512(b)(3).
We note in this regard that these individuals all signed the respective statements attributed to them and another person witnessed their doing so and signed the statement also. This indicates to us that these three persons were in fact the authors of the statements ascribed to them. Additionally, we perceive no reason why Hensley, Ramirez or Stokes would lie with respect to their encounters with plaintiff, nor has plaintiff brought anything concrete to our attention in this regard.
Though we have stated this requirement slightly differently in a number of cases, this thread of continuity runs throughout. In West v. United States, we expressed the standard in the following way: "It is well settled that hearsay * * * can constitute substantial evidence if it has sufficient probative force.” 207 Ct. Cl. at 515. McKee v. United States phrased it in terms of hearsay constituting substantial evidence "if sufficiently convincing to a reasonable mind.” 205 Ct. Cl. at 310, 500 F. 2d at 528. Most recently we said hearsay can be substantial evidence "if the circumstances are such as to lend it credence.” Verrault v. United States, supra.
By failing to contact any employee representatives, such representatives were not aware of plaintiffs inspection and were therefore deprived of the opportunity to accompany plaintiff on his inspection. This was a violation of 29 C.F.R. § 1903.8(a) (1976) which provides that:
"§ 1903.8 Representatives of employers and employees.
"(a) Compliance Safety and Health Officers shall be in charge of inspections and questioning of persons. A representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Compliance Safety and Health Officer during the physical inspection of any workplace for the purpose of aiding such inspection. * * *” [Emphasis supplied.]
The after-hours inspection was a violation of OSHA Field Operations Manual section V-D.l.a. This provision provides that:
"D. Conduct of inspection.
“1. Entry of the workplace.
"a. Time of inspection. Inspections shall be made during regular working hours of the establishment, except as special circumstances may require. The Area Director shall approve entry at other than daytime working hours, except where obtaining approval would cause undue delay.”
It was undisputed plaintiff did not obtain such approval from the Area Director. The record before the Appeals Authority also was devoid of any indication that obtaining such approval would have caused undue delay.
The opening conference occurs at the beginning of the inspection and entails the inspector’s presenting his credentials and explaining the nature and purpose of the inspection. As made clear by 29 C.F.R. § 1903.7(a) (1976), such conference is mandatory:
"(a) Subject to the provisions of § 1903.3, inspections shall take place at such times and in such places of employment as the Area Director or the Compliance Safety and Health Officer may direct. At the beginning of an inspection, Compliance Safety and Health Officers shall present their credentials to the owner, operator, or agent in charge at the establishment; explain the nature and purpose of the inspection; and*557 indicate generally the scope of the inspection and the records specified in § 1903.3 which they wish to review. * * *” [Emphasis supplied.]
The closing conference, required by 29 C.F.R. § 1903.7(e) (1976), is also mandatory. This regulation provides as follows:
"(e) At the conclusion of an inspection, the Compliance Safety and Health Officer shall confer with the employer or his representative and informally advise him of any apparent safety or health violations disclosed by the inspection. During such conference, the employer shall be afforded an opportunity to bring to the attention of the Compliance Safety and Health Officer any pertinent information regarding conditions in the workplace.” [Emphasis supplied.]
Plaintiffs conducting the inspection at a time when no employee representatives were at the job site deprived them of the opportunity to accompany plaintiff on his physical inspection. 29 C.F.R. § 1903.8(a), see supra note 7, imposed on inspectors the mandatory requirement that they afford employee representatives this opportunity.
29 C.F.R. § 0.735-14 (1976) provides in relevant part as follows:
"No employee shall solicit, accept, or agree to accept any direct or indirect favor, gift, loan, free service, gratuity, entertainment, or other item of economic value if the donor has or is seeking to obtain contractual or other business or financial relations with the Department, has interests that may be substantially affected by the performance or nonperformance of official duties, is attempting to reward or influence the employee’s official actions, or if acceptance of such item could affect the employee’s impartiality, or give that appearance.* * *”
