4 Opinion of the Court has made charges, unless the employee requests it. The letter of charges in the instant case said, "You are hereby given five days within which to answer these charges personally and in writing." This is the offer of the opportunity to reply, and it requires affirmative action by the employee, whether he writes an answer or refrains from doing so, and whether he seeks a personal interview or refrains from doing SO. We recognize, of course, that prior to this court's decision in Washington, supra, on January 16, 1957, it might not have occurred to the parties and their counsel that the right to a personal interview might be a procedural right, the denial of which would invalidate a discharge. This court considered that problem in Vaughn v. United States, 141 C. Cls. 208, 158 F. Supp. 716, and we adhere to what we said in that case. As we have said the plaintiff now says that he did request an interview with the Postmaster, and proposes to prove it by a writing. No such writing, and no other evidence of such a request was tendered to the Civil Service Commission. We think it would be quite intolerable that, Congress having given the Commission the authority to hear and decide cases, a litigant might withhold important, perhaps decisive, evidence from the Commission, and later seek to present it in this court. The requirement that a party exhaust his administrative remedies would be made meaningless if such conduct were permitted. The defendant's motion for summary judgment is granted. The plaintiff's similar motion is denied, and his petition is dismissed. It is so ordered. REED, Justice (Ret.), sitting by designation; LITTLETON, Judge (Ret.); LARAMORE, Judge; and JONES, Chief Judge, concur. WHITAKER, Judge, took no part in the consideration and decision of this case. Syllabus 148 C. Cls. JULIA E. HART v. THE UNITED STATES [No. 330-58. Decided January 20, 1960] ON PLAINTIFF'S AND DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT Civilian pay; dismissal; Veterans' Preference Act; right to answer personally; involuntary annual leave.—In an action by plaintiff, a preference eligible, to recover back pay claimed to be due her because of an alleged wrongful dismissal in violation of section 14 of the Veterans' Preference Act of 1944, 5 U.S.C. § 863, it is held that plaintiff's dismissal was not defective for failure to permit her to answer personally the charges against her because she appears to have waived the right to make such a request, but she is entitled to be paid for her annual leave which she would have earned during the period of involuntary leave. Officers 72(1) Civilian pay; dismissal; answer personally-how requested.—A request for a "hearing" and a chance to face one's accusers is not a request for an opportunity to personally answer charges brought against one under section 14 of the Veterans' Preference Act of 1944, 5 U.S.C. § 863. Civilian pay; dismissal; answer personally-waiver of right to.-Unless a preference eligible asserts his right to answer personally, i.e., have a personal interview in connection with charges brought against him, he will be deemed to have waived that right. Officers 72(1) Civilian pay; dismissal; involuntary annual leave during 30-day notice period—right to pay for such leave. The placing of an employee on involuntary annual leave is a suspension action and when the employing agency also charges the employee's regular pay against his leave account, the suspension is one without pay. Under the provisions of the Lloyd-La Follette Act, 5 U.S.C. § 652(a), no classified civil servant may be suspended without pay until the steps specified in that act have been taken by the employing agency and thus, where an employee is placed on involuntary annual leave without pay before such steps are taken, the suspension is illegal unless some valid reason exists to justify the suspension and the employee may recover the pay lost during such period. Officers 72(1) United States 39 (8) 10 Opinion of the Court Civilian pay; dismissal; suspension-during notice period.-Dismissal action and a suspension during the notice period are two separate matters and an error in the suspension action will not serve to invalidate the otherwise correct dismissal action. Holtzman v. United States, 143 C. Cls. 108. Officers 72(1) Mr. Gerald B. Greenwald for the plaintiff. Messrs. Blumenthal & Blumenthal and Becker & Maguire were on the brief. Mr. Laurence H. Axman, with whom was Mr. Assistant Attorney General George Cochran Doub, for the defendant. JONES, Chief Judge, delivered the opinion of the court: This action presents two questions to the court. First, was plaintiff denied a personal hearing at the agency level on the charges against her in violation of her rights under section 14 of the Veterans' Preference Act of 1944,1 and, also, was the action of her superiors in placing her on involuntary annual leave a violation of her rights under section 6 of the Lloyd-La Follette Act of 1912, as amended? 2 In substance, the facts are these: plaintiff, a preference eligible, had been employed for more than ten years as a stenographer in the New York office of the Antitrust Division, Department of Justice. In July 1956, she became involved in a dispute with an attorney in the office concerning the priorities assigned certain work projects. She was accused of having refused to perform work which it was properly her duty to perform. On July 11, 1956, the plaintiff met with the acting head of the office, her administrative supervisor, and an attorney assigned to her staff section, in an attempt to work out the problem and to assure that there would be no future misunderstanding about plaintiff's duties. Failing to resolve matters satisfactorily, the conference was terminated and plaintiff was informed that she was being placed on annual leave effective the following day. Plaintiff at that time had not had any charges served on her but she had been told that they might be forthcoming. She was continued on annual leave with no further notice until she was instructed to come to work on August 6, 1956. 15 U.S.C. 863. 25 U.S.C. 652(a). Opinion of the Court 148 C. Cls. On that day plaintiff again had a conference with the acting head of the office and again no understanding was reached between her and her superiors. She was thereupon restored to her duties and served with a letter of charges signed by the Assistant Attorney General, Antitrust Division, and dated August 3, proposing her discharge by the Department of Justice. She was given five days in which to reply to the charges, which period was extended another five days as a result of her telephonic request to the executive officer of the Antitrust Division in Washington. On August 14, 1956, plaintiff forwarded her written answer to the charges to the Assistant Attorney General, Antitrust Division and concluded with the statement, "I am ready and anxious to face my accusers at a hearing in this Department or before the Civil Service Commission at any time." Plaintiff was notified by letter dated September 10, 1956, that the charges against her were sustained. She was informed that her employment was being terminated as of the close of business on September 14, 1956, and of her right to appeal to the Civil Service Commission. Following a hearing before a regional appeals examiner of the Civil Service Commission, a decision was made sustaining the agency and it was ruled that plaintiff's separation had been in full conformity with the Veterans' Preference Act. She appealed to the Board of Appeals and Review alleging, among other things, that she had been improperly suspended. Again the Civil Service Commission found against plaintiff. In a subsequent request for reconsideration, the plaintiff alleged for the first time that she had not been permitted to answer the charges against her personally as guaranteed by the Veterans' Preference Act. This request was denied. Plaintiff thereupon filed her petition in this court. We held in Washington v. United States, 137 C. Cls. 344 (1957), that a veteran sought to be discharged from the classified civil service has the right to personnally present his side of the case to the appropriate official of the agency. This right is provided in the following language in section 14 of the Veterans' Preference Act of 1944 (5 U.S.C. § 863): * See Long v. United States, this day decided, ante p. 4. 10 Opinion of the Court *** *** No permanent or indefinite preference eligible shall be discharged *** except *** for reasons given in writing, and the person whose discharge is sought shall be allowed a reasonable time for answering the same personally and in writing *** [Emphasis supplied.] But like a great many other legal rights, this congressionally conferred safeguard may be waived. Accordingly, where a civil servant is faced with discharge and is notified of his right of personal appearance at the agency level, he must take such action as will constitute a clear assertion of this right or it will be waived. Vaughn v. United States, 141 C. Cls. 208 (1958). We agree that this right of personal appeal at the agency level does not entitle a Federal employee to an adversary type hearing nor does it contemplate confrontation of the witnesses. Deviny v. Campbell, 194 F. 2d 876 (D.C. Cir. 1952). Plaintiff had the right, then, to answer the letter of charges personally before the proper official within her agency, contingent upon properly asserting that right. Although it appears that there may be a factual dispute as to whether plaintiff was offered such opportunity, and as to whether she rejected it, counsel for both parties indicated their preference for a determination on the facts as disclosed in the briefs, affidavits, and attached documents. It is the task of the court to decide whether the plaintiff properly and effectively requested such personal interview. From a reading of the record in this case, it appears that the incidents leading up to plaintiff's removal originated in an unfortunate, but not unique, clash of personalities between two persons who happened to come in close employment contact. Correctly or not, plaintiff believed that she had become a pawn and a scapegoat in an intra-office intrigue involving two attorneys. She had also come to the conclusion that her actions and attitudes had been untruthfully reported to her superiors. At the time she was placed on annual leave in July 1956, plaintiff believed that she had been wronged by more than one person in her office, and that she had been denied the redress and vindication that she deserved. |