Page images
PDF
EPUB

145

Findings of Fact

536, that the said Act of August 26, 1950, did not apply to employees in nonsensitive positions. Accordingly, plaintiff was reinstated, and resumed his former employment status on September 10, 1956. He is presently claiming back pay for the period of suspension, which is from March 12, 1954, to September 10, 1956.

2. In addition to his Post Office Department position, plaintiff had regular full-time employment as a social worker for the City of Philadelphia, which job he held at all times during the period of his suspension.

After being suspended, plaintiff made no effort to secure employment to replace his former Post Office job, because he felt it would be very difficult to explain his suspension to a prospective employer without creating prejudice against himself.

3. Plaintiff received a letter from Assistant Postmaster General N. R. Abrams, dated September 5, 1956, offering him reinstatement but adding the following:

If you do return, I believe you are entitled to know at this time that, upon reemployment, charges may be preferred against you under appropriate legislative authority. In the event your present circumstances are such that you do not wish to return to duty, this will not prejudice your claim for back pay.

For consideration to be given any claim for back pay it will be necessary for you to furnish an affidavit to the Postmaster setting forth your employment and net earnings during the period or periods of suspension and termination. In this connection you are advised that the dates for such pay claim should be figured from the date of suspension to the date of receipt of this letter. Approximately one month after his reinstatement plaintiff resigned his position with the Post Office Department, effective October 15, 1956. The reason given by plaintiff for resigning was as follows:

I have enrolled in the University of Pennsylvania School of Social Work under a work study program. Under this type of plan I am unable to devote any time to extra work due to the heavy schedule of work and study.

4. Following his reinstatement plaintiff requested back pay for the period of his involuntary suspension and separa

Findings of Fact

149 C. Cls.

tion under the provisions of the Act of August 26, 1950, 64 Stat. 476, 5 U.S.C.A. 22-1. Defendant has refused to honor plaintiff's request for back pay.

5. Plaintiff states that the basis for his claim is the same as that considered by this Court in the case of Leiner v. United States, 143 C. Cls. 806, when it was determined that the Act of August 26, 1950, was applicable to all types of Government employees, and therefore applicable to Fred Leiner, who had been employed by the Post Office Department as an "indefinite substitute clerk," as had plaintiff.

6. The plaintiff claims loss of earnings during the period of his involuntary suspension and separation from the Post Office Department in the amount of $5,094.43. This sum is based upon the difference between his gross earnings for the calendar years of suspension as compared with his gross earnings during 1953, as follows:

[blocks in formation]

7. The plaintiff was originally appointed February 1, 1953, as an "indefinite substitute clerk" at an hourly rate of $1.615 per hour, for assignment when needed during the hours of 6:30 P.M. and 11:30 P.M. He continued at this rate until his suspension March 12, 1954.

Upon restoration to duty, commencing September 10, 1956, plaintiff was paid $1.88 per hour as an indefinite substitute clerk.

145

Syllabus

Plaintiff was employed continuously, prior to and during the period of his suspension, by the City of Philadelphia, Department of Public Welfare, from October 15, 1953, until September 1956 (8:30 to 5:00, 5 days a week, 371⁄2 hours). There is no evidence of his earnings under the work study program after his enrollment in the University of Pennsylvania School of Social Work in the fall of 1956.

After his reinstatement by the Post Office Department the plaintiff worked only five weeks and voluntarily terminated his employment effective October 15, 1956.

CONCLUSION OF LAW

Upon the foregoing findings of fact which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover, and judgment will be entered to that effect. The amount of recovery will be determined pursuant to Rule 38 (c).

In accordance with the opinion of the court and on a memorandum report of the commissioner as to the amount due thereunder, it was ordered on July 1, 1960, that judg ment for the plaintiff be entered for $1,250.45.

IRVING DULCY v. THE UNITED STATES

[No. 411-58. Decided March 2, 1960. Plaintiff's motion for rehearing overruled May 4, 1960]

ON PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS AND DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Civilian pay; dismissal; Veterans' Preference Act-section 14; arbitrary action.-In an action to recover civilian Government pay alleged to be due plaintiff because of alleged arbitrary actions by the employing agency, the Civil Service Commission and the President's Committee on Government Employment Policy, it is held that the documents submitted by the parties in support of their motions establish that there were no arbitrary actions taken in connection with plaintiff's dismissal and that the President's Committee on Government Employment Policy

Officers

Per Curiam

149 C. Cls.

complied in all substantial respects with its regulations. Petition dismissed.

72(1)

Civilian pay; dismissal; arbitrary and capricious action-what constitutes. Where the employing agency and the Civil Service Commission afford a Government employee a full and fair hearing and investigation in connection with his dismissal for the good of the service and where they conclude on the basis of a full record that plaintiff's offenses were sufficiently serious to warrant his dismissal, the court will not hold that such dismissal was arbitrary.

Officers 72(1)

Civilian pay; dismissal; regulations of President's Committee on Government Employment Policy-substantial compliance with. Where the regulations of the President's Committee on Government Employment Policy require that a summary of testimony be prepared and agreed to by the interested parties, and the employee concerned received such a summary but refused to agree to it, there has been substantial compliance by the Committee with its own regulations; also where the regulations require that the employee concerned be sent a copy of the Committee's advisory opinion and the employee gets it from the Government Printing Office rather than from the Committee, there has been substantial compliance with that regulation since the important thing is that the employee get the opinion and not where it comes from.

Officers 72(1)

Mr. Joseph Minsky for the plaintiff.

Mr. Sheldon J. Wolfe, with whom was Mr. Assistant Attorney General George Cochran Doub, for the defendant.

PER CURIAM: Plaintiff, a veteran preference eligible, seeks to recover pay from May 7, 1956, the date on which he was separated by the Government Printing Office.

Initially plaintiff filed a motion for judgment on the pleadings, alleging that his veteran's preference rights granted him by section 14 of the Veterans' Preference Act of 1944, 58 Stat. 390, 5 U.S.C. 863, as amended, were violated. After filing of opposition by the defendant and after motion for summary judgment by the defendant, plaintiff on September 15, 1959, filed a supplemental pleading to which he has attached exhibits. Accordingly, we will now treat plaintiff's pleading as a motion for summary judgment.

153

Per Curiam

The allegations of the petition, answer, motions, and exhibits are voluminous and nothing can be gained from a long summary of facts. Facts necessary to a conclusion will be set forth later in the body of the opinion.

Plaintiff complains of many things; i.e., that the agency was arbitrary and erred in dismissing plaintiff and the Civil Service Commission was in error and arbitrary in upholding said dismissal; that the President's Committee on Government Employment Policy violated its regulations and was arbitrary in its hearings and opinion.

Section 14 provides in pertinent part that a veteran preference eligible shall not be discharged except for such cause as will promote the efficiency of the service and for reasons given in writing with at least 30 days' advance written notice stating any and all reasons specifically and in detail for any such proposed action; such preference eligible shall be allowed a reasonable time for answering the same personally and in writing, and for furnishing evidence in support of such answer, and shall have the right to appeal to the Civil Service Commission from an adverse decision of the administrative officer so acting.

The facts relative to the agency action in dismissing plaintiff are these: After considerable discussion, letter writing, charges and countercharges, relative to proposed action to reassign, plaintiff wrote to the Director of Personnel, Government Printing Office, alleging that a deplorable situation in working conditions prevailed in the Chicago office. An investigation followed and finally a 3-man grievance committee from the Washington office heard testimony relative. thereto. On March 14, 1956, the committee submitted its report and recommendations to the Public Printer. The committee stated:

After a thorough study of the testimony the committee has come to the following conclusions and makes the following recommendations:

1. Mr. Irving Dulcy by letter of February 6, 1956, to the Director of Personnel made serious charges against the Chicago Field Office Manager regarding conditions prevailing in the plant. Testimony was taken from him under oath and he did not substantiate his charges. It is recommended that charges be preferred proposing his separation or other corrective action for violation of

« PreviousContinue »