holding that plaintiff had a choice other than resignation where she could stay and exhaust the grievance process and stating that “[m]erely because plaintiff was faced with an inherently unpleasant situation in that her choice was arguably limited to two unpleasant alternatives does not obviate the voluntariness of her resignation”
How later courts described this case
- holding that plaintiff had a choice other than resignation where she could stay and exhaust the grievance process and stating that “[m]erely because plaintiff was faced with an inherently unpleasant situation in that her choice was arguably limited to two unpleasant alternatives does not obviate the voluntariness of her resignation”
- finding that a former civilian employee’s choice to resign and accept discontinued service retirement instead of opting to “stand pat” and challenge the validity of her discharge for cause was voluntary and lacked government sponsored duress in spite of her choice between two unpleasant alternatives
- stating that “[duress is not measured by the employee’s subjective evaluation of a situation ..., the test [for determining whether an employee’s resignation was obtained under duress] is an objective one”
- finding employee ratified retirement date as her own when she signed retirement documents and that her signature satisfies the requirement she select her own effective date of resignation
Written by the judges who cited it.
The opinion
Bennett, Judge,
concurring:
I join in the opinion and conclusion of Judge Kunzig. In response to the dissent, however, I wish to add a few comments.
The dissent questions the substantiality of the charge against plaintiff upon which the proposed removal was based. The incident was described in the “Advanced Notice of Proposed Removal,” as follows:
(2) Incident. On 15 November 1971, at approximately 0900, you came into my office with an information list, to describe certain problems you had encountered while working with the Engineering Change Proposal (ECP) program. You explained that you receive information over the phone from AIR-01A6 on Monday morning, and then relay it, via phone, to NAVAIRTECHSERV FAC. You complained that this took up a great deal of your time. I stated that assuming that the girl in AIRr-01A6 reads from a list, she could send the data direct to NAVAIRTECHSERVFAC over the tele-copier, and they, in turn, could phone back a confirmation directly to AIR-01A6. You replied in a disgusted manner that the girl at AIR-01A6 had better things to do (or words to that effect). I stated that I would still like to know if she could do it, whereupon you stated “Well, I won’t ask her” (or words to that effect), and proceeded to walk out. I said, “Ruth, I think you’re being unreasonable.” At that, you turned and approached where I was sitting at my desk. You stood over me and said in a somewhat strained voice, “You drive me nuts — you bastard, you’re driving me nuts” (or words to that effect). At the same time, you swung at my face with your right hand doubled into a fist, which I stopped with my hands. I became quite concerned, not only for you and your apparant (sic) loss of self-control, but for my own physical safety as well. I asked, “What’s wrong with you Ruth?” You just looked at me and attempted to pound me with your fists, perhaps five or six times. None of the blows hit my head or face, all fell on my hands and forearms with which I warded off the blows. Although these blows were not *342 overly severe in nature, they were never-the-less, in my opinion, intended to inflict bodily harm to me. You then turned and left the office without uttering anything further. Mr. Harold Booher, Publications Presentation Methods Specialist, was in the office at the time and observed the incident, and more specifically, your actions immediately prior to leaving the room. I immediately turned to Mr. Booher and asked him to go see if you were all right. I indicated to him that I was worried about you, but that I was afraid that if I went in to see you personally, that it would only upset you more. Mr. Booher did go in and ask you if you were all right, to which you replied that you were.
Perhaps the notion of plaintiff’s inflicting bodily injury on her male supervisor is not persuasive, but the striking of a supervisor in anger is surely intolerable in any employment relationship and is a valid basis for removal for cause whether the blows resulted in injury or not.
Furthermore, the incident was witnessed by a third party. Clearly, therefore, this is not a case in which the agency knew or believed that the proposed termination could not be substantiated.
Nor was the resignation the result of deception. In her appeal to the Civil Service Commission, plaintiff wrote:
* * * The false information that removal for misconduct would result in sacrifice of all retirement1/ annuity rights was originally offered, but was corrected in later exploration of alternatives. [Emphasis supplied.]
Surely plaintiff cannot now be permitted to contradict that statement.
Finally, the dissent is mistaken in suggesting that defendant has admitted the allegations made by plaintiff, to wit, that the incident was contrived and that she was deceived, intimidated, and thereby coerced to resign. Defendant nowhere admits these allegations and, of course, makes no such admission by filing a motion for summary judgment as contrasted to a motion for dismissal. Defendant relies on the various documents in the record which show as a matter of law that plaintiff’s resignation was voluntary. With regard *343 to the affidavits filed with plaintiff’s brief, defendant correctly notes that
* * * the affidavits filed with plaintiff’s brief should be disregarded to the extent they seek to raise new factual matters not presented to The Commission. Consideration of such new materials by this Court is barred by the doctrine requiring exhaustion of administrative remedies. Haynes v. United States, 190 Ct. Cl. 9, 12-13 (1969); Pine v. United States, 178 Ct. Cl. 146, 148 , 371 F. 2d 466 -68 (1967); Long v. United States, 148 Ct. Cl. 4, 9 (1960).
Plaintiff simply has no legal basis for recovery in this court on the facts properly before us on the motions.