ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
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 September 21, 1977, plaintiff, by counsel, appealed his dismissal to the Federal Employee Appeals Authority (Appeals Authority) of the Civil Service Commission, requesting the matter be resolved without a hearing. The Appeals Authority notified OSHA of plaintiff's appeal and requested pertinent information to aid it in reaching a decision. Labor submitted documentation on October 27, 1977, and October 28, 1977. On December 12, 1977, the Appeals Authority provided plaintiff with a copy of the materials submitted by Labor and notified him of his right to present his case at a hearing. Plaintiff, through counsel, made a deliberate choice to waive his right to a hearing and on January 6, 1978, furnished an extensive written response in lieu thereof.
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 plaintiff's 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
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, capricious, an abuse of discretion and unsupported by substantial evidence in the record before it. We discuss these points in turn.
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, 89 S.Ct. 1997, 23 L.Ed.2d 449 (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 in 5 U.S.C. § 7512. We feel Labor did comply with these requirements.
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, 98 S.Ct. 112, 54 L.Ed.2d 89 (1977). "The
Plaintiff's 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 American Crystal Sugar Company (Crystal Sugar). OSHA, taking the position that plaintiff in fact failed to conduct a proper inspection, listed this alleged inspection as specification B under reason 2 (failure to properly conduct inspections and/or follow-up inspections in violation of OSHA regulations). The administrative record forwarded by Labor to the Appeals Authority contained, among other evidence, the statement of James Hensley, one of plaintiff's co-workers. Hensley had signed and dated the last page of his statement and had initialed all the other pages. In addition,
On January 10, 1977, plaintiff inspected the American Linen and Supply Company (American Linen) for the purpose of checking out an employee's complaint of possible inadequate oxygen and excessive carbon monoxide. OSHA believed this inspection was also improperly conducted and listed it as specification D of reason 2. Hensley accompanied plaintiff on this trip and brought along a carbon monoxide analyzer as well as a Bendix pump and carbon monoxide tubes-devices to be used to test for insufficient oxygen and excessive carbon monoxide. Hensley's previously referred to statement also detailed the events surrounding this inspection as follows:
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 follow-up 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 Hensley, Ramirez had also signed a statement detailing his dealings
On October 27, 1976, plaintiff accompanied by Hensley traveled to Pembina, North Dakota, on business. Plaintiff remained there 2¾ days. Upon his return to Bismarck, he submitted a travel voucher claiming reimbursement for 2¾ 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. Plaintiff's action gave rise to specification B of reason 3 (falsification of travel vouchers and excessive claims for reimbursement).
Plaintiff's own signed affidavit submitted to the Appeals Authority disclosed that he had stayed with relatives in Halleck and not at a motel. In addition, the signed and witnessed statements of three of plaintiff's co-workers disclosed that on a number of occasions plaintiff counseled them to deliberately inflate their own travel vouchers. He once advised Ramirez to stay in the cheapest motels and then in claiming reimbursement raise the room rate to just below the maximum reimbursement allowed. Per Ramirez' statement, plaintiff's rationale was: "This way if one of us hangs, we all hang together." Ray Stokes' statement indicates plaintiff told Stokes and another employee to inflate their room expense on their travel vouchers. Stokes also states that:
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
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 plaintiff's 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, 578 F.2d 1389, 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, 208 Ct.Cl. 342, 527 F.2d 1191 (1975), cert. denied, 429 U.S. 821, 97 S.Ct. 69, 50 L.Ed.2d 82 (1976); West v. United States, supra; McKee v. United States, 205 Ct.Cl. 303, 500 F.2d 525 (1974). Once held admissible, such evidence is under no special disadvantage because of its hearsay character. In deciding whether particular hearsay evidence amounts to substantial evidence, we apply the same standard applied to all other evidence properly before an administrative agency. In any particular case, hearsay evidence can therefore be "substantial evidence" if it has sufficient probative force such that a reasonable man might accept it as adequate to support the conclusion reached by the agency.
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 plaintiff's 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 surely amounts to conducting an inspection in violation of OSHA regulations. With regard to the trip to American Linen, Hensley asserted that (1) no carbon monoxide testing occurred even though plaintiff represented the test had occurred and no carbon monoxide found and (2) no employee representatives (union stewards) were contacted at any point in the inspection. This was adequate to support the conclusion that this inspection also had been improperly conducted. Representing that a test had occurred and no hazard found to exist when in fact no test occurred clearly is a failure to conduct an inspection in violation of OSHA regulations. Not contacting the employee representatives was a further reason why the American Linen inspection was improperly conducted in violation of OSHA regulations.
Additionally, while we note that in appropriate cases uncorroborated hearsay can be substantial evidence, Verrault v. United States, supra, these statements of plaintiff's 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 plaintiff's January 10, 1977, inspection, there were union stewards at American Linen and plaintiff made no effort to contact them. This at least in part corroborated Hensley's version of plaintiff's inspection there. With respect to plaintiff's falsification of his travel voucher, Hensley, Ramirez and Stokes all mention various incidents in which plaintiff had indicated a propensity to intentionally inflate vouchers. By all three independently describing such conduct, their statements corroborate one another. Plaintiff's own affidavit confirms Ramirez' assertion that an after-hours inspection occurred at the Twin City construction site. Finally, plaintiff also offers corroboration as to his purchase at Super Valu. His affidavit stated that: "The fact is that Mr. Schaefer paid five percent (5%) over the price paid by [Super Valu's own] stores. * * * This could very easily amount to more than he would pay at a retail store." [Emphasis in original.] Based on this admitted 5 percent markup, the Appeals Authority could have found this price, as marked up, to in fact be less than the retail price of the juice. This would confirm Hensley's statement to the extent he indicated plaintiff made his purchase at a price less than retail.
In insisting these specifications are unsupported by substantial evidence, plaintiff makes two final arguments. Plaintiff's 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
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 plaintiff's removal.
Plaintiff's 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 plaintiff's version of the facts but chose to disbelieve plaintiff and instead believe the statements of plaintiff's co-workers. On review of its decision, we are concerned with this factual dispute only to the extent of determining whether notwithstanding plaintiff's contrary assertion as to the facts, the statements of plaintiff's 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 decision. See Pascal v. United States, 211 Ct.Cl. at 188 n.3, 543 F.2d at 1287 n.3. This factual dispute before the Appeals Authority is therefore no bar to our granting defendant's motion for summary judgment.
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, Ct.Cl., 624 F.2d 1029 (1980); Shapley v. United States, 214 Ct.Cl. 783, 786 (1977). Attaching finality to its decision means plaintiff's removal was proper, entitling him to neither reinstatement nor back pay. This being dispositive of the issues in plaintiff's 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 plaintiff's petition in its entirety.
"§ 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."
"§ 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.]
"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 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.]
Plaintiff's 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.
"No employee shall solicit, accept, or agree 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. * * *"