Petition — Baginsky v. United States

83-3 jue 8 1983

No. : ALEXANDER L. STEVAS

In the

Supreme Court of the United States.

Octroser TERM, 1982.

SUSANNA M. BAGINSKY,

PETITIONER,

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Federal Circuit.

CuHaRLEsS W. RANKIN,

DaANGEL & SHenrry, P.C.,

One Post Office Square, Suite 2220,

Boston, Massachusetts 02109.

(617) 423-1100

Harvey A. SILVERGLATE, *

SILVERGLATE, GERTNER, BAKER & FINE,

88 Broad Street,

Boston, Massachusetts 02110.

(617) 542-6663

*Counsel of Record

BATEMAN & SLADE. INC BOSTON . MASSACHUSETTS

Questions Presented.

1. Whether the United States Court of Appeals for the

Federal Circuit erred in failing to apply the “clearly

erroneous” standard mandated by Claims Court Rule 52(a) in

setting aside a crucial fact finding and in reversing a judgment

in petitioner’s favor in the United States Claims Court?

2. Whether the United States Court of Appeals for the Fed-

eral Circuit erred in making fact findings on issues which the

Claims Court did not consider and in failing to remand peti-

tioner’s case to the Claims Court for further findings after the

Court of Appeals determined that the Claims Court applied

the wrong legal standard?

Table of Contents.

Opinions below

Grounds of jurisdiction

Rule which the case involves

Statement of the case

Proceedings below

Facts

Argument

I. The court should allow the petition for a writ

certiorari because the Court of Appeals for the

Federal Circuit departed from the usual and ac-

cepted course of judicial proceedings by failing

to apply the principles of the clear error doctrine

mandated by Claims Court Rule 52(a)

A. Reversal of fact finding of causation

B. New fact findings in the Court of Appeals

Conclusion

Table of Authorities Cited.

CASES,

Baginsky v. United States, 697 F.2d 1070 (Fed. Cir.

1983)

Brunswick Bank & Trust Co. v. United States, slip. op.,

No. 184-80 (Fed. Cir. May 9, 1983)

Cahill v. New York, New Haven & Hartford Railroad

Co., 351 U.S. 183 (1956)

Cherry v. United States, 697 F.2d 1043 (Fed. Cir. 1983)

Commissioner v. Duberstein, 363 U.S. 278 (1960)

awowdn yo =

14

ii TABLE OF AUTHORITIES CITED.

DeMarco v. United States, 415 U.S. 449 (1974) 25

Disabled American Veterans v. United States, 704

F.2d 1570 (Fed. Cir. 1983) 17

Guzman v. Pichirilo, 369 U.S. 698 (1962) 25

Hardee v. United States, slip. op. at 17, No. %4-79

(Fed. Cir. May 11, 1983) 17

Inwood Laboratories v. Ives Laboratories, 456 U.S.

844 26, 27

Kelly v. Southern Pacific Co., 419 U.S. 318 (1974) 25

Minnesota Chippewa Tribe v. United States, 222 Ct.

Cl. 551 (1980) 24

McAllister v. United States, 348 U.S. 19 (1954) 19

Navajo Tribe of Indians v. United States, 624 F.2d

981 (Ct. Cl. 1980) 23

O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504

(1951) na 22

Pullman-Standard v. Swint, 456 U.S. 273 (1982) 20, 25, 26

United States v. National Association of Real Estate

Boards, 339 U.S. 485 (1950) 18

United States v. United States Gypsum Co., 333 U.S.

364 (1948) 17,19

United States v. United States Smelting Refining &

Mining Co., 339 U.S. 186 (1950) 20

United States v. Yellow Cab Co., 338 U.S. 338 (1949) 27

Zenith Radio Corp. v. Hazeltine Research, Inc., 395

U.S. 100 (1969) 19

STATUTES,

18 U.S. § 1254(a) 2

28 U.S. § 1295(a) (3) 16

TABLE OF AUTHORITIES CITED. iii

28 U.S.C. § 1491 (a) (1) 3, 16

Federal Courts Improvement Act of 1982, Pub.L. 97-

164, 96 Stat. 25 11, 16

Federal Rules of Civil Procedure

Rule 52 15, 16

No. :

In the

Supreme Court of the United States.

OctToBer TERM, 1982.

SUSANNA M. BAGINSKY,

PETITIONER,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Federal Circuit.

Opinions Below.

The opinion of the United States Court of Appeals for the

Federal Circuit is reported at Baginsky v. United States, 697

F.2d 1070 (Fed. Cir. 1983), and appears at A. la. The March

5, 1982 opinion of the Trial Division of the United States

Court of Claims is unreported and appears at A. 19a. The

opinion of a three judge panel of the United States Court of

Claims is reported at 22] Ct. Cl. 908 (1979), and appears at

A. 77a.

2

Grounds of Jurisdiction.

The order of the United States Court of Appeals for the Fed-

eral Circuit, reversing the judgment of the United States

Claims Court in petitioner's favor, was rendered on January

10, 1983. On February 4, 1983, the United States Court of

Appeals for the Federal Circuit denied the petitioner's petition

for rehearing and suggestion for rehearing en banc (A. 84a).

On May 9, 1983, the United States Supreme Court (Burger,

C.J.), extended the time for filing a petition for writ of cer-

tiorari to and including July 4, 1983. This Court has jurisdic-

tion to review the judgment below pursuant to 18 U.S.C.

§ 1254(a).

Rule which the Case Involves.

Rule 52(a) of the Claims Court Rules provides:

Findings by the Court.

Effect. In all actions tried upon the facts the court

shall find the facts specially and state separately its con-

clusions of law thereon, and judgment shall be entered

pursuant to Rule 58; and in granting or refusing inter-

locutory injunctions the court shall similarly set forth the

findings of fact and conclusions of law which constitute

the grounds of its action. Requests for findings are not

necessary for purposes of review. Findings of fact shall

not be set aside unless clearly erroneous, and due regard

shall be given to the opportunity of the trial court to

judge of the credibility of the witnesses. If an opinion or

memorandum of decision is filed, it will be sufficient if

the findings of fact and conclusions of law appear there-

in. Findings of fact and conclusions of law are unneces-

3

sary on decisions of motions under Rules 12 or 56 or any

other motion except as provided in Rule 41(b).

Statement of the Case.

Proceedings Below.

The petitioner, Susanna M. Baginsky, is a physician who is

board certified as a pathologist. She was the Chief of Labora-

tory Services at the Brockton, Massachusetts Veterans Admin-

istration Hospital from April 15, 1973 until her removal from

that position on May 19, 1975 (A. 50a).

This action alleges that she was wrongfully removed from

that position, and seeks reinstatement, back pay and related

relief. The action was originally brought in the United States

District Court and was subsequently transferred to the United

States Court of Claims. The Court of Claims properly had

jurisdiction over the action pursuant to 28 U.S.C. § 1491(a)(1)

(A. 7a).

Count one of her amended petition (A. 89a) in the Court of

Claims alleges that the Veterans Administration violated its

regulations in connection with an annual proficiency report

prepared on April 15, 1974, about her performance in the first

year on the job. The regulations required that Dr. Baginsky

be shown a copy of the report. Because she received a mar-

ginal rating in that report, the regulations also required that

her supervisor review the report with her and that she be

counseled with respect to her strengths and weaknesses. The

regulations are designed to help physicians improve their per-

formance and hence avoid dismissal during their probationary

period. Count two of the amended petition alleges that the

Veterans Administration violated Dr. Baginsky’s constitu-

tional right to due process because the Review Board which

4

recommended her discharge considered allegations of which

Dr. Baginsky had not been informed and reviewed documents

which had not been furnished to her.

Prior to trial, a three judge panel of the Court of Claims

denied the defendant's motions to dismiss and for summary

judgment on counts one and two. The panel remanded the

case for trial before a single judge of the trial division of that

court (A. 77a).

The trial court decided to try count one alone, since that

was likely to be much shorter and simpler than the more com-

plicated inquiry which the constitutional issues would require

(A. 87a). After a two day trial, the trial court found that the

Veterans Administration had not followed the regulations “in

any material respect.” (A. 49a.) Because the three judge

panel had found there to be a causal link between the failure

to follow the regulations (if proven) and the 1975 termination,

and because the trial court found the allegations to be proven,

judgment entered for Dr. Baginsky (A. 75a-77a).

By a divided vote of two to one, the United States Court of

Appeals for the Federal Circuit reversed (A. la). It held that

the trial court had limited its review of the counseling issue too

narrowly, and should have considered the events between the

April 1974 report and the discharge in May 1975. Instead of

remanding to the Claims Court for further findings on the new

issues, the Court of Appeals reviewed the record and made

fact findings on the new issues. It set aside the trial court's

finding that the 1974 regulatory violations tainted the 1975

discharge. The court held that Dr. Baginsky could not recover

on count one, and remanded the trial court for trial of count

two. The dissenting judge protested that the majority usurped

the trial court's fact finding function, and that the Court of

Appeals should remand for further factual and legal findings

in the Claims Court (A. 16a).

5

Facts.

Dr. Susanna Baginsky is an experienced physician special-

izing in pathology. She was appointed to the position of Chief

of Laboratory Services at the Brockton Veterans Administra-

tion Hospital and began work on April 15, 1973. The position

had been vacant for some time and the laboratory had experi-

enced great difficulty prior to her arrival. Unless substantial

improvements were made, the hospital's Chief of Staff feared

that the laboratory might lose its accreditation. Several key

employees were considering retirement. The laboratory staff

was divided into feuding groups and some members were not

on speaking terms with other members of the staff (A. 56a).

Dr. Baginsky’s problems began before she was hired. The

Chief of Staff, Dr. John Conlin, had doubts about Dr. Bagin-

sky after his interview with her. Nevertheless, Dr. Conlin

selected her. Dr. Conlin blamed Dr. Baginsky for the subse-

quent retirement of several key employees. Dr. Conlin was

concerned about criticism of Dr. Baginsky by the Personnel

Service for being tardy with certain paperwork (A. 57a-58a).

In late 1973 an incident took place over the hiring of a

microbiologist for the laboratory. Dr. Baginsky recommend-

ed that one of the applicants be hired but because of a shortage

of funds was unable to interview him face to face. The appli-

cant was interviewed briefly by telephone and in person by a

Veterans Administration employee in the applicant’s home

city. He was hired. A day after his arrival, Dr. Baginsky

recommended that he be discharged because of his inability to

perform basic tests in the laboratory. The microbiologist posi-

tion was acritical one. The trial judge credited Dr. Baginsky’s

testimony that the applicant's shortcomings caused two deaths

at the Brockton hospital. Subsequent investigation revealed

that the applicant had misrepresented his credentials. Despite

Dr. Baginsky’s urgings, her supervisors did not discharge the

6

new employee for several weeks (A. 60a-61la). Dr. Baginsky’s

supervisor blamed her for the entire incident because he felt

that she should have investigated the man’s qualifications

prior to hiring. The trial court found that Dr. Baginsky shared

hiring responsibilities with the Personnel Service and the

United States Civil Service Commission. Further it found that

Dr. Baginsky was never informed that she alone was responsi-

ble for checking the applicant's credentials (A. 62a).

Dr. Baginsky’s efforts to upgrade the laboratory created

other tensions. The Chief of Staff testified that a number of

the technicians in the laboratory feared that Dr. Baginsky

wanted to replace them with technologists, who had more for-

mal training (A. 56a-57a).

The trial court reviewed the evidence of these and other

incidents in Dr. Baginsky’s first year at the hospital. The court

found that some mention of the perceived shortcomings took

place but that there was never full discussion with plaintiff of

these problems (A. 59a). The court went on to find that

“there is no evidence that between October 23, 1973 and

March 28, 1974, he [ Dr. Conlin] or anyone else in authority at

the hospital had any extended discussion with plaintiff.”

(A. 60a.) The court coricluded that Dr. Conlin failed to con-

vey the seriousness of his concerns to Dr. Baginsky AA.

58a-59a).

Veterans Administration regulations required that Dr: Ba-

ginsky’s supervisor, Dr. Conlin, prepare an annual proficiency

report on April 15, 1974, the anniversary of her hiring. The

report gave Dr. Baginsky a rating of 52 out of a possible 88

points. While that was a “satisfactory” score under the ap-

plicable regulations, both the trial court and the Court of Ap-

peals held that the rating was “marginal.” (A. 75a.) This

determination was based on the fact that Dr. Conlin had

never given a physician such a low score and on his comments

at the end of the report that at no time during her service had

-

operations in the laboratory been run smoothly. Dr. Conlin

concluded in the report that “her retention is contingent upon

a substantial improvement in her perforrmance.” (A. 76a.)

The trial court found that Dr. Baginsky was never shown a

copy of the report, as the regulations required (A. 76a).

Because she was a “marginal” employee, the trial court

found that her supervisor should have met with Dr. Baginsky

in a “counseling conference” no later than 90 days prior to the

due date for her annual report, that is, no later than January

15, 1974. If there were no improvement within the following

30 to 60 days, a second counseling conference had to be held,

after which the supervisor should have prepared a memoran-

dum indicating the reasons for the conference, the deficiencies

at issue and the suggested solutions. If there were still no im-

provement, an “unsatisfactory” rating would be given and

steps initiated to discharge the employee (A. 76a-77a).

The three judge panel of the Court of Claims, in denying

the respondent's motion for summary judgment, had termed

the counseling regulations “an important protection for the

employee since it gives an opportunity to improve his work

and avoid dismissal during the later part of the [three year]

probationary period.” (A. 81a.)

The three judge panel went on to rule that:

The failure of plaintiff to correct her deficiencies directly

led to her dismissal. Had she been properly counselled

and shown her poor proficiency report (and we indicate

no views here on that question), she might have been able

to improve her performance and avoid dismissal (A. 81a-

82a).

Accordingly the three judge panel remanded the case to the

trial division of the Court of Claims “to determine whether

8

plaintiff was shown her proficiency report dated April 15,

1974 at that time or given counselling as the Manual requires.”

(A. 82a.)

The trial court concluded that the Veterans Administration

had utterly failed to comply with its regulations in connection

with the report and the required counseling. It rejected as

mistaken the statement of Dr. Conlin in the report itself that

he had discussed the report with Dr. Baginsky (A. 35a). The

court found that Dr. Baginsky never saw the report until a

year after her 1975 discharge, when she received it in response

to a Freedom of Information request (A. 47a). The court

found that an April 22, 1974 meeting between Drs. Baginsky

and Conlin was so inadequate that “[t]}he evidence indicates

that Dr. Conlin either did not discuss the proficiency report

with plaintiff or discussed it in such an incomplete manner

that the discussion did not adequately convey to plaintiff all

the information she needed to understand her supposed short-

comings and to improve her performance thereafter.” (A.

67a.)

The trial court went on to examine documents prepared by

Dr. Baginsky’s supervisors after the April 1974 report to deter-

mine whether she had been shown the report in April 1974 or

counseled in connection with the report. The trial court

stated:

Subsequent events [after April 1974] are not directly

relevant to the issue here on remand. The issue as set

forth in the court's order of October 19, 1979 is “whether

plaintiff was shown her proficiency report dated April

15, 1974 at that time or given counselling as the Manual

requires.” However, several documents subsequently

prepared in late 1974 and early 1975 in connection with

her later removal shed light on the above-stated issue.

They confirm that plaintiff's supervisors had regarded

9

her as a marginal or unsatisfactory employee prior to the

April 15, 1974 proficiency report (A. 68a).

The subsequent documents which the court dealt with

included a “Proposed Separation from Employment of Susan-

na Baginsky, M.D. Chief, Laboratory Service” which Dr.

James Baker, Director of the hospital, submitted to the

Veterans Administration Central Office on November 15,

1974. That document by and large recounted the complaints

which arose during Dr. Baginsky’s first year. The Proposed

Separation formed the basis for the proceedings which later

led to her discharge in May, 1975. The trial court found

evidence in the Proposed Separation which indicated that the

April 1974 report had not been discussed with Dr. Baginsky

(A. 68a-70a).

The trial court next examined a document submitted by Dr.

Conlin on February 14, 1975 entitled “Items for Professional

Standards Board Review Concerning Dr. {usanna Baginsky,

Chief, Laboratory Service.” That document, which tracked

the complaints in the Proposed Separation, admitted that the

April, 1974 report was not discussed directly with Dr. Bagin-

sky (A. 70a-71a).

Finally, the trial court reviewed a March 12, 1975 memo-

randum of Dr. Conlin which admitted that Dr. Baginsky had

not been shown the April, 1974 report (A. 71a).

The trial court concluded by quoting from the opinion of

the three judge panel:

* * * We conclude that there is a sufficient relationship

between the alleged violations in this case and the

dismissal to sustain plaintiff’s cause of action. * * * The

system evidently is intended in part to provide employees

with an opportunity to correct any deficiencies in their

10

performance. The failure of plaintiff to correct her defi-

ciencies directly led to her dismissal. Had she been prop-

erly counselled and shown her poor proficiency report

(and we indicate no views here on that question), she

might have been able to improve her performance and

avoid dismissal (A. 48a).

The trial court then found that “(p]laintiff has amply sup-

ported her allegations at trial.” (A. 48a.) She did not see the

report until after her disc‘iarge nor was there ever a discussion

of the report. No counseling conference was held, even

though she was entitled to have at least one, and possibly two

conferences. No memorandum of the discussion of the

counseling conference was ever prepared, outlining the discus-

sion and describing her alleged deficiencies. The trial court

concluded that the haphazard discussions of the purported

shortcomings failed to convey the seriousness of the situation

or that her job was in jeopardy (A. 58a-59a, 67a).

In sum, the trial court concluded:

This is literally a case in which “the facts speak for

themselves.” The relevant regulations are based on

statutes and clearly have the force and effect of law.

They in fact provide within the regulations themselves

that no deviation from them are permissible. Moreover,

they highlight their own importance in providing a basis

for keeping employees informed of what is expected of

them, and for determining how they are measuring up,

and whether their probationary appointments will be

made permanent. (Footnotes omitted.) (A. 47a.)

1]

After again reviewing the applicable counseling regulations,

the court stated that “[nJone of this was done. In fact, the

regulations do not appear to have been followed in any

material respect.” (Emphasis added.) (A. 49a.)

The defendant appealed to the Court of Claims. Because of

the effect of the Federal Courts Improvement Act of 1982,

Pub.L. 97-164, 96 Stat. 25, the appeal was heard by the

United States Court of Appeals for the Federal Circuit. The

Court of Appeals reversed in a two to one decision. It held

that the trial court had interpreted too narrowly the earlier

decision of the three judge panel of the Court of Claims by

failing to examine the actions of the Veterans Administration

between the time of the inadequate counseling and review of

the April 15, 1974 annual report, and the May 19, 1975 ter-

mination. Judge Kashiwa dissented. While agreeing with the

majority that the trial court had too narrowly examined the

counseling issue, he urged the court to remand the case to the

trial court for initial fact findings on the new issue.

Rather than remand to the Claims Court, as it conceded

was the more normal judicial response in the circumstances

(A. 10a), the Court of Appeals proceeded to make fact find-

ings upon issues which the trial court had not made findings

and upon which the parties had not fully tried the case.

The Court of Appeals found that the Veterans Administra-

tion was not required by its regulations to counsel Dr. Bagin-

sky about her shortcomings in connection with the 1975 ter-

mination. The Court of Appeals found that even though the

Veterans Administration did not have to counsel her in 1975,

there had been two meetings prior to the 1975 firing between

Dr. Baginsky and her supervisor which constituted “counsel-

ing.” The trial court had not made findings on either of those

meetings.

The trial court had made no findings on any complaints

about Dr. Baginsky’s performance between April, 1974 and

12

her discharge in 1975. In spite of this, the Court of Appeals

found that the failure to counsel in 1974 did not “taint” the

1975 discharge. The court stated:

Considering all the circumstances, we cannot say that

the lack of counseling in connection with the 1974 annual

proficiency report or the failure of the VA to show that

report to her at the time of its preparation denied her the

opportunity to improve her performance and thus avoid

dismissal. Accordingly, we hold that the lack of counsel-

ing concerning the annual deficiency [sic] report and the

failure to show her that report did not invalidate the VA's

discharge of Dr. Baginsky following the preparation of

her unsatisfactory special proficiency report of February

1975 (A. 15a).

That finding by the Court of Appeals was directly contrary

to the decision of the three judge panel of the Court of Claims

that there was such a link (A. 8la). It was also directly con-

trary to the trial court’s finding that Dr. Baginsky had proven

her allegations that the 1974 proceedings were wholly im-

proper and that the failure to counsel her in 1974, and to in-

form her of the purported shortcomings, led directly to her ter-

mination in 1975 (A. 48a).

The three judge panel of the Court of Claims, in its earlier

decision, recognized that the dismissal in 1975 was, viewed by

itself, procedurally proper. It stated:

This case is unusual in that the dismissal proceeding itself

apparently was conducted in compliance with all applic-

able regulations, and the claim is that there were earlier

violations of a regulation which tainted the dismissal. We

conclude that there is a sufficient relationship between

13

the alleged violations in this case and the dismissal to sus-

tain plaintiff's cause of action (A. 81a).

On appeal, the Court of Appeals did not address that passage

of the earlier opinion of the three judge panel of the Court of

Claims. Instead, it asserted that the Court of Claims did not

have before it the record developed in the trial court and was

unaware of the “counseling” Dr. Baginsky received in connec-

tion with the 1975 special proficiency report. The trial court,

of course, had made no findings about any such “counseling”

and had made findings consistent with the Court of Claims’

earlier view that there was a causal relationship between the

failure to counsel in 1974 and the discharge. The Court of Ap-

peals made no finding of clear error by the trial judge, nor

could it have in light of the extensive and well documented

fact findings.

Judge Kashiwa in dissent argued that the Court of Claims

has not been given an opportunity to decide the factual and

legal questions of the counseling issue.

There has been no final decision as to that issue [ccun-

seling], yet the majority finds it appropriate to usurp the

function of the Claims Court and make its own de novo

factual findings. The majority fails to recognize that this

court and the Claims Court are not a single court with

both original and appellate jurisdiction, as was a

predecessor court, the Court of Claims. The jurisdiction

of this court, like that of the other courts of appeals, is ex-

clusively appellate (A. 16a).

14

Argument.

I. THe Court SHOULD ALLOW THE PETITION FOR A WRIT OF

CERTIORARI BECAUSE THE CourRT OF APPEALS FOR THE FEDERAL

Circurt DEPARTED FROM THE USUAL AND ACCEPTED COURSE

OF JUDICIAL PROCEEDINGS BY FAILING TO APPLY THE PRINCI-

PLES OF THE CLEAR ErroR DocTRINE MANDATED BY CLAIMS

Court Rute 52(a).

This case presents an extraordinary instance of the failure of

a court of appeals to respect the clear error doctrine embodied

in Claims Court Rule 52(a), as interpreted by this Court. The

Court of Appeals decided that the trial court failed to make

critical fact findings because it erroneously interpreted a prior

decision of the Court of Claims. Instead of remanding for

new fact findings in light of the proper legal standard, the

Court of Appeals examined the record, made findings on issues

which the trial court did not address, which issues the parties

at trial did not fully contest. It reversed the crucial factual

finding that Dr. Baginsky’s termination in 1975 was directly

linked to the wholly improper procedures surrounding her an-

nual proficiency review in 1974. The court did this without

reference to the clear error doctrine or to Rule 52(a).

In one sense, the Court of Appeals’ failure to adhere to the

clear error doctrine is perhaps understandable. This case was

originally brought in the Court of Claims. At that time, the

Court of Claims was a two-part court with both trial and ap-

pellate functions. The appellate functions of the old Court of

Claims involved more of a role for the court in the fact finding.

At the time of the trial, Rule 147(b) of the Court of Claims

Rules provided:

Trial Judge’s Report. The court may adopt the trial

judge’s report, including conclusions of fact and law, or

15

may modify it, or reject it in whole or in part, or direct

the trial judge to receive further evidence, or refer the

case back to him with instructions. Due regard shall be

given to the circumstance that the trial judge had the op-

portunity to evaluate the credibility of the witnesses; and

the findings of fact made by the trial judge shall be pre-

sumed to be correct.

By its own terms, the Court of Claims, under Rule 147(b),

did not have to give the kind of deference to the trial judge’s

findings as Rule 52(a) of the Federal Rules of Civil Procedure

demands of the courts of appeals.

Under the Court of Claims Rules in effect at the time the ac-

tion was filed, the trial judge merely filed a report of his find-

ings of fact and recommendation for the conclusion of law.

Rule 134(h) of the old Court of Claims Rules provided in rele-

vant part:

Content of Trial Judge’s Report; Findings of Fact; Con-

clusion of Law. In every case tried on the merits... ,

the trial judge shall ascertain the facts from the evidence

and file with the clerk a report of his findings of fact and,

unless otherwise directed by the court, his opinion and

recommendation for the conclusion of law, which report

shall constitute a part of the record.

Thus, the trial judge in the Court of Claims recommended a

decision to the Court of Claims, which, under Rule 147(b),

was not bound by the strictures of the clear error doctrine.

16

The Federal Courts Improvement Act of 1982 altered not

only the structure of the old Court of Claims, but also the pro-

cedure governing the trial and appeal of cases. The Court of

Appeal for the Federal Circuit was established and given juris-

diction over appeals from final decisions of the United States

Claims Court. 28 U.S.C. § 1295(a)(3). The role of the

former Court of Claims as a finder of fact was eliminated.

Under § 403 of the Act, Pub.L. 97-164, cases pending on the

docket of the Court of Claims, in which, as here, a report on

the merits had been filed or in which a request for review was

pending, were transferred to the Court of Appeals for the Fed-

eral Circuit on October 1, 1982. The newly established

Claims Court was given jurisdiction to enter judgment on

cases of this nature, 28 U.S.C. § 149](a)(1). Judgment was

entered in this case on October 8, 1982 by the Claims Court

(A. 85a), in accordance with an October 4, 1982 order of the

Court of Appeals for the Federal Circuit (A. 86a).

The United States Claims Court adopted new rules, effec-

tive October 1, 1982, modeled after the Federal Rules of Civil

Procedure. The new rules govern further proceedings in cases

pending on October 1, 1982, unless the court, for stated

reasons, otherwise orcers. Claims Court Rule l(a)(1). No

such order was entered in the instant case. By the terms of the

Court of Appeals’ order of October 4, 1982, this case should

have been treated like an appeal from a final judgment,

governed by Rule 52(a). Rule 52(a) of the new Claims Court

Rules is identical to Rule 52 of the Federal Rules of Civil Pro-

cedure, except for provisions dealing with jury trials and

masters which are inapplicable to the Claims Court.

In review of this case the Court of Appeals ruled as if it were

still the Court of Claims. It accepted certain of the trial

judge's findings, rejected others without regard to Rule 52(a)

and made its own findings on issues which the trial court had

not considered and which the parties had not fully contested.

17

It was apparently out of concern that the differences be-

tween the new Court of Appeals and the former Court of

Claims were being overlooked that prompted Judge Kashiwa’s

dissent below.

The proper standard to be applied on review of fact findings

by the Claims Court is a continuing source of controversy

within the Court of Appeals for the Federal Circuit. This and

other panels have split over the question, prompting dissents

and the application of different standards depending on which

panel was sitting. Compare the instant case and Brunswick

Bank & Trust Co. v. United States, slip. op., No. 184-80 (Fed.

Cir. May 9, 1983) (Court of Appeals finds facts in absence of

fact findings by Claims Court; one judge dissents) with

Hardee v. United States, slip op. at 17 n.1, No. 84-79 (Fed.

Cir. May 11, 1983) (panel of five judges splits, the majority

claiming that the dissenters wanted to overturn the trial

court's fact findings that were not clearly erroneous). See also

Cherry v. United States, 697 F.2d 1043 (Fed. Cir. 1983);

Disabled American Veterans v. United States, 704 F.2d 157

(Fed. Cir. 1983).

A. Reversal of Fact Finding of Causation.

The law has long been settled that a court of appeals can on-

ly reverse a trial court's fact finding when clear error is found.

In United States v. United States Gypsum Co., 333 U.S. 364,

395 (1948), this Court traced the history of the clear error doc-

trine and elaborated the often quoted test for its application:

“A finding is ‘clearly erroneous’ when although there is evi-

dence to support it, the reviewing court on the entire evidence

is left with the definite and firm conviction that u mistake has

been committed.”

When compared to that standard, the action of the Court of

Appeals cannot stand. The most important way in which the

18

Court of Appeals erred in this action is its treatment of the

causation issue — was Dr. Baginsky’s termination in 1975

caused (or “tainted” to use the word of the Court of Appeals)

by the failure to show her the April 1974 report and the failure

to counsel her about her purported shortcomings, as required

by the regulations? The trial court stated its agreement with

the earlier decision of the three judge panel of the Court of

Claims that there was a “sufficient relationship” between the

violations and the dismissal. The trial court found the allega-

tions to have been proven.

With little analysis, or explication of its reasoning, the

Court of Appeals set aside this finding. It did not state that it

deemed the finding to be clearly erroneous. Instead, it char-

acterized as dictum the statement in the prior opinion of the

Court of Claims that if Dr. Baginsky had been properly coun-

seled, “she might have been able to improve her performance

and avoid dismissal.” (A. 82a.) After its own review of the

record, on issues as to which the trial court had made no find-

ings, the Court of Appeals stated that it was unable to say that

the regulatory failings denied Dr. Baginsky the opportunity to

improve her performance.

It is apparent that the Court of Appeals took a different

view of the evidence than the trial court. The Court of Ap-

peals cannot reverse the judgment of the trial court merely

because it takes a different view of the evidence. In United

States v. National Association of Real Estate Boards, 339 U.S.

485, 495-496 (1950), this Court addressed precisely this situa-

tion:

It is not enough that we might give the facts another con-

struction, resolve the ambiguities differently, and find a

more sinister cast to actions which the district court ap-

parently deemed innocent. ... We are not given those

choices, because our mandate is not to set aside findings

of fact “unless clearly erroneous.” (Citations omitted.)

19

The reasons for this deference stem from the greater oppor-

tunity of the trial court to evaluate the evidence and from an

appropriate respect for the differing functions of trial and ap-

pellate courts. This Court has consistently reversed decisions

of the courts of appeals when the function of the trial court as

fact finder has been invaded by the appellate court. For in-

stance, in Zenith Radio Corp. v. Hazeltine Research, Inc., 395

U.S. 100 (1969), this Court reversed the decision of the Court

of Appeals because it had violated the clear error doctrine in

setting aside a fact finding of the district court:

In applying the clearly erroneous standard to the find-

ings of a district court sitting without a jury, appellate

courts must constantly have in mind that their function is

not to decide factual issues de novo. The authority of an

appellate court, when reviewing the findings of a judge

as well as those of a jury, is circumscribed by the defer-

ence it must give to decisions of the trier of the fact, who

is usually in a superior position to appraise and weigh the

evidence. The question for the appellate court under

Rule 52(a) is not whether it would have made the find-

ings the trial court did, but whether “on the entire evi-

dence [it] is left with the definite and firm conviction that

a mistake has been committed.

Id, at 123, quoting frorn United States Gypsum, supra.

In the instant case, there can be no doubt that the trial

court’s finding of the causal link between the violation of the

VA regulations and her discharge is a finding of fact to which

the clearly erroneous standard applies. In McAllister v.

United States, 348 U S. 19 (1954), the Court of Appeals had

reversed the district court's finding that the plaintiff's polio

was caused by the negligence of the vessel’s owner. (The ac-

20

tion was brought under the Suits in Admiralty Act.) This

Court reversed, holding that the Court of Appeals failed to ap-

ply the clear error standard in setting aside that finding of the

district court. The Supreme Court noted that the causation

determination appeared to be based on a reasonable inference,

and that it could not say that it was clear error.

More recently, in Pullman-Standard v. Swint, 456 U.S, 273

(1982), the Court held that a district court's determination of

whether there was intentional racial discrimination is a ques-

tion of fact which can only be reversed by a court of appeals if

clear error is shown.

The Court of Appeals appears to have shifted the way it

viewed the “taint” issue from the opinion of the three judge

panel of the Court of Claims. In denying the government's

motion for summary judgment, the panel stated that if plain-

tiff proved the failure to counsel, she should recover — the

regulatory failure was linked to the subsequent termination,

even though the termination itself was procedurally proper. It

appeared to create a presumption, in Dr. Baginsky’s favor,

that the irregularities tainted the subsequent termination and

it was presumed that if properly counseled, Dr. Baginsky’s

performance would have improved.

Without so stating, the Court of Appeals appears to have re-

versed the presumption. The only stated reason for the

change are two counseling sessions it found in late 1974 and

early 1975. It presumed that the termination, if procedurally

proper, was not tainted by the earlier irregularities. In the ab-

sence of proof by Dr. Baginsky that there was taint, and that

her performance would have improved, she could not recover.

The problems of the Court of Appeals’ approach are ob-

vious. The Court of Appeals ignored any notion that it was

bound by the law of the case. United States v. United States

Smelting Refining & Mining Co., 339 U.S. 186, 198 (1950).

The issue was inadequately tried on the post-April 1974

21

events. The trial court made no findings on counseling after

April 1974. The parties and the trial court operated on the

assumption that the prior decision of the Court of Claims set-

tled the issue of the link between the procedural irregularities

and the termination. No effort was made by the trial court to

determine what complaints about Dr. Baginsky arose after

April 1974. Indeed, the trial court said the post-April 1974

complaints “are not relevant here.” Nor was there any exami-

nation of whether Dr. Baginsky’s performance improved on

those occasions, if any, where the purported shortcomings

were properly brought to her attention. Judge Kashiwa in dis-

sent noted that the decision of the Court of Appeals denied the

parties the right to fully develop their case (A. 18a). In effect,

the Court of Appeals changed the race course after the race

had been run. Its decision cannot stand.

B. New Fact Findings in the Court of Appeals.

The Court of Appeals erred in making fact findings on issues

which the trial court did not address. The court held that the

trial court had erred in looking only at the issue of counseling

in connection with the April, 1974 proficiency report. In-

stead, the court held that the trial court should have deter-

mined whether any counseling took place after the April 1974

report, and should have determined whether that counseliag

was adequate to eliminate the “taint” which arose from the

regulatory violations in 1974.

The court conceded that the normal course would be to re-

mand the case to the trial court for reconsideration under the

proper standard. It did not feel compelled to do so for several

reasons: In its view the record left no doubt as to the decision

that must result; the record was short; the legal and factual

issues were uncomplicated; and the case had been pending for

22

over three years (remand for trial on count two was necessary

in any event). As will be seen, none of those reasons justifies

the course followed by the Court of Appeals. Indeed, its action

violates established case law that, where findings must be

vacated because the trial court applied the wrong legal stand-

ard, the proper course is to remand for further factual find-

ings.

In support of its action, the court cited two cases from this

Court and two from the old Court of Claims. None of the

cited cases supports the action of the Court of Appeals. The

first case, O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S.

504 (1951), the deputy commissioner, in an action under the

Longshoremen’s and Harbor Workers’ Compensation Act, had

found as a fact that the death of an employee-claimant was in-

cident to his employment, and that he was thus entitled to

recover. The employer moved to set aside the award in the

district court. The district court affirmed the deputy commis-

sioner’s finding, stating that there was “substantial evidence”

to support the finding that the death occurred as an incident of

employment. The Court of Appeals for the Ninth Circuit re-

versed the district court, holding that it applied the wrong

standard of law in determining the scope-of-ernployment

question. The Supreme Court reversed the Ninth Circuit,

holding that the district court applied the proper standard of

law. The Court indicated that rather than remand to the

Ninth Circuit for consideration of whether the finding was

supported by substantial evidence, it would review the mat-

ter. It affirmed the district court's finding. Thus, in no sense

does O'Leary support the Court of Appeals’ position that it

could make the findings of fact on issues the trial court did not

consider.

The Court of Appeals cited a dissent in Cahill v. New York,

New Haven & Hartford Railroad Co., 351 U.S. 183, 188-189

(1956). The dissent has ro bearing on this case. The one

23

remark in the dissent about the necessity for remand concerns

an issue of law, not an issue of fact. That is hardly compelling

authority for the Court of Appeals’ action.

The citation of Navajo Tribe of Indians v. United States,

624 F.2d 981 (Ct. Cl. 1980), cuts against the action of the

Court of Appeals in this action. It might well be relied upon

by Dr. Baginsky in urging this Court to grant the petition for a

writ of certiorari. The Navajo Tribe case was one of a series of

Indian Commission accounting actions. The plaintiff tribe

urged the Court of Claims to set aside a finding of the trial

judge and remand the matter for further findings. The Court

of Claims upheld the trial judge's findings and declined to re-

mand for trial on the issue of the meaning of certain words in a

treaty. The tribe had given no hint of how it proposed to con-

tradict the unambiguous language of the treaty. Id. at 996.

Even more directly on point, the Court of Claims in the

Navajo Tribe case remanded the matter to the trial court on an

issue as to which no findings had been made:

The trial judge does not directly address these points

[non-interest bearing accounts] and we cannot say that

the contentions are frivolous or insubstantial on their face

(or as argued to us). But at the same time we are not ina

position to resolve these issues, several of which embody

factual components. We think therefore that they should

be investigated further and plaintiff should be permitted

to show, if it can, that such deposits of tribal funds in

non-interest bearing or non-fruitful accounts were

wrongfully made.

Id at 994.

Thus, if the Court of Appeals had followed the Navajo

Tribe case, it would have remanded for findings in the first in-

stance by the trial court. In the instant case, plaintiff

24

presented evidence on the post-April, 1974 events only to

demonstrate the lack of counseling in connection with the

1974 report. That was the understanding of plaintiff and of

the trial court of the scope of the trial on count one. Thus, if

the case is remanded, plaintiff will offer further evidence, not

now in the record, of the events between April, 1974 and May,

1975. The request for a remand in these circumstances is far

different than the bare assertion by plaintiff in the Navajo

Tribe case that it might be able to contradict the clear

language of the treaty. There is no objective account the lan-

guage of which binds the parties in this case.

The final case cited in support of the Court of Appeals’ ac-

tion is Minnesota Chippewa Tribe v. United States, 222 Ct.Cl.

551 (1980). Again, this case does not support the action of the

Court of Appeals. The Court of Claims in Minnesota Chip-

pewa determined as a matter of Jaw, not fact, that the plain-

tiff could recover interest it had been charged as a litigation

expense by an expert. The government had claimed that it

could not be charged interest because of its sovereign immuni-

ty. The Court of Claims held that the interest charge was a

proper litigation expense, and thus chargeable to the govern-

ment. While the procedural posture of the case is unclear

from the facts stated in the opinion, it appears that the Indian

Compensation Commission had either recommended pay-

ment, or made no recommendation at all. In any event, there

was no factual issue which the Court of Claims had to resolve

on appeal.

For many years this Court has held that the proper pro-

cedure for a court of appeals to follow, when it determines

that the trial court failed to make adequate findings because of

a legal error, is to remand the case to the trial court for further

findings in light of the appropriate legal standard. That pro-

cedure is appropriate in view of the opportunity of the trial

judge to determine the credibility of witnesses and because the

trial court is more intimately familiar with the record.

25

In Guzman v. Pichirilo, 369 U.S. 698 (1962), for example,

the Court of Appeals had reversed the district court and

ordered entry of judgment for the defendant because the trial

court applied the incorrect legal standard to an issue in the

case. The Supreme Court reversed on the ground that the

disputed finding was not clearly erroneous under the proper

legal standard. The court went on to add that:

If we were convinced, as was the Court of Appeals, that

the trial court’s action was colored by a misunderstanding

of such legal principles, we would have to remand, as the

Court of Appeals should have, for further findings by the

trial court on the credibility of the owner’s witness.

Id. at 701.

Similarly, in Kelly v. Southern Pacific Co., 419 U.S. 318

(1974), the Court of Appeals had reversed a findng that a

worker was an employee of the defendant so that he could br-

ing his action under the Federal Employees’ Liability Act.

The Supreme Court reversed and ordered that the case be

remanded to the district court for further findings in light of

the proper legal standard. The court emphasized the

deference which must be shown to the trial court as the finder

of fact in the first instance. Cf., DeMarco v. United States,

415 U.S. 449 (1974) (factual issue which arose while case was

on appeal to the Court of Appeals should have been resolved

by remanding to the trial court for an evidentiary hearing).

Last term this Court again emphasized the importance of

remanding factual issues for determination in the first instance

in the trial court. In Pullman-Standard v. Swint, 456 U.S.

273 (1982), the court reiterated DeMarco’s holding that the

matter should be returned to the district court for resolution:

“When an appellate court discerns that a district court has

26

failed to make a finding because of an erroneous view of the

law, the usual rule is that there should be a remand for further

proceedings to permit the trial court to make the missing find-

ings... . Id. at 291. See also, Id. at 287 n.17; Inwood

Laboratories v. Ives Laboratories, 456 U.S. 844, 857 n.19.

In Pullman-Standard, supra, 456 U.S. at 292, the court

stated: “Likewise, where findings are infirm because of an er-

roneous view of the law, a remand is the proper course unless

the record permits only one resolution of the factual issue.” In

the instant case, the Court of Appeals thought that only one

result was possible. That ruling is erroneous. The trial court

made detailed findings of the nature of the required counsel-

ing, including the fact that it must be confidential and must be

memorialized in writing. It held that such counseling had not

taken place in connection with the April, 1974 report. The

trial court made no findings on the events after April, except

insofar as they bore on the issue of counseling in connection

with the April 1974 report. The Court of Appeals found that

the regulations did not specify the nature of the counseling.

The Court of Appeals lent greater credence to Dr. Conlin than

did the trial court, (A. 13a), and accepted evidence which the

trial court rejected (A. 14a). Those findings suggest that the

Court of Appeals erred in reaching the question of whether the

post-April 1974 conversations it referred to constituted

counseling within the meaning of the VA regulations.

The trial court's findings compel the conclusion that the

Court of Appeals erred in reaching the issue of the link be-

tween the April 1974 violations and the 1975 discharge. The

trial court found that the discharge proceeding was initiated

by the Proposed Separation which Dr. Baker, Director of the

hospital, submitted in November, 1974 to the VA Central Of-

fice. Thus, the discharge was initiated only seven months

after the regulatory violations. The trial court found that the

Proposed Separation largely tracked the purported deficiencies

27

noted in the April, 1974 report. The trial court found that the

April, 1974 violations were linked with the 1975 separation.

The link between the violations in April, 1974 and the

discharge becomes even clearer when one considers the trial

court's finding that the “Items for a Professional Standards

Board concerning Dr. Susanna Baginsky” in February, 1975,

which formed the basis for her ouster, was almost identical to

the events depicted in the Proposed Separation. Thus, with a

few items added, Dr. Baginsky was discharged in large part

because of events which occurred during her first year of serv-

ice. In light of the trial court's finding that she received none

of the required counseling about those events, and that the

mandatory regulations were not followed “in any material

respect,” it cannot be said that only one result was possible.

The issue was capable of resolution either way. In these cir-

cumstances, it was incumbent upon the Court of Appeals to

remand for further findings by the trial court. It was the trial

court which had the advantage of seeing the witnesses and

assessing their credibility. In large part, the trial court re-

solved the credibility questions in Dr. Baginsky’s favor.

Whether the Court of Appeals disagreed with that result

should not be the question — that is a determination that only

the trial court can make. In similar circumstances this Court

rejected the Court of Appeals’ reversal of the trial judge’s find-

ings in Inwood Laboratories, supra: “By rejecting the District

Court’s findings simply because it would have given more

weight to evidence of mislabeling than did the trial court, the

Court of Appeals clearly erred. Determining the weight and

credibility of the evidence is the special province of the trier of

fact.” Id. at 856.

The issue involved in the instant case, causation or “taint” is

similar in many ways to the questions of intent, design and

motive. Cf., United States v. Yellow Cab Co., 338 U.S. 338

(1949). In Commissioner v. Duberstein, 363 U.S. 278 (1960),

28

the Court explained the reasoning behind the special deference

which appellate courts should give to the trial court's deter-

mination of such issues:

Decision of the issue presented in these cases must be

based ultimately on the application of the fact-finding

tribunal's experience with the mainsprings of human con-

duct to the totality oi the facts of each case. The non-

technical nature of the statutory standard, the close rela-

tionship of it to the data of practical human experience,

and the multiplicity of relevant factual elements, with

their various combinations, creating the necessity of

ascribing the proper force to each, confirm us in our con-

clusion that primary weight in this area must be given to

the conclusions of the trier of fact.

Id. at 289.

The nature of the factual inquiry closely parallels that de-

scribed by the court in Duberstein. How does a court deter-

mine whether the total noncompliance with the VA regula-

tions through Dr. Baginsky’s first year of employment, and in

particular the failure to discuss the perceived shortec mings

with her and the threat which they posed to her job con-

tributed in a substantial way to her discharge in 1975? It must

consider her testimony, credibility and demeanor. It must

consider the testimony, demeanor and credibility of other

principals. Those inquiries are rarely easy and are wisely left

within the exclusive province of the fact finder.

29

Conclusion.

For these reasons Dr. Baginsky asks this Court to grant her

petition for a writ of certiorari and to order that the case be

remanded to the trial court with instructions to make further

findings on the basis of such further testimony it deems

necessary.

Respectfully submitted,

CHARLES W. RANKIN,

DANGEL & SHERRY, P.C.,

One Post Office Square,

Suite 2220,

Boston, Massachusetts 02109.

(617) 423-1100

Appendix.

Table of Contents.

Opinion, United States Court of Appeals, Federal Cir-

cuit, January 10, 1983

Opinion, United States Court of Claims, Trial Division,

March 5, 1982

Order, United States Court of Appeals, Federal Circuit,

February 4, 1983

Order, United States Claims Court, October 8, 1982

Order, United States Court of Appeals, Federal Circuit,

October 4, 1982

Memorandum of Pretrial Conference, United States

Court of Claims, Trial Division, December 5, 1980

First Amended Petition, United States Court of Claims,

June 4, 1979

19a

la

SUSANNA M. BAGINSKY,

APPELLEE,

v.

THE UNITED STATES,

APPELLANT,

APPEAL No. 519-78.

United States Court of Appeals,

Federal Circuit.

Jan. 10, 1983.

Physician brought suit challenging termination of her

employment with Veterans Administration and seeking back

pay and reinstatement. Action was filed in the United States

District Court for District of Massachusetts and transferred to

the Claims Court, which set aside the termination, and

Government appealed. The Court of Appeals, Friedman,

Circuit Judge, held that: (1) there was no requirement for

counseling in connection with preparation of special proficien-

cy report containing unsatisfactory rating for physician, and

(2) failure of VA to properly counsel physician before prepar-

ing annual proficiency report and its contemporaneous failure

to show her annual proficiency report did not so taint subse-

quent dismissal proceedings based upon special proficiency

report prepared approximately ten months thereafter, for

which she was adequately counseled, that discharge, based on

special proficiency report, could not stand.

Reversed and remanded.

Kashiwa, Circuit Judge, dissented in part and filed opinion.

1. Federal Courts 937

Upon laying bare error by trial judge, normal practice would

be to remand case to him for reconsideration under proper

2a

standard; that practice, however, is not inflexible and may be

departed from in appropriate circumstances, particularly

where record leaves no question as to decision that must result

from remand.

2. Armed Services 102

There was no requirement for counseling in connection with

preparation of special proficiency report containing unsatis-

factory rating for physician in Veterans Administration hos-

pital, and VA provided physician with more than was re-

quired, where hospital's chief of staff counseled physician at

least twice prior to preparing special proficiency report.

3. Armed Services 102

Failure of Veterans Administration to properly counsel

employee physician before preparing annual proficiency

report and its contemporaneous failure to show her annual

proficiency report did not so taint subsequent dismissal pro-

ceedings based upon special proficiency report prepared ap-

proximately ten months thereafter, for which she was ade-

quately counseled, that discharge, based on special proficiency

report, could not stand.

Robert M. Buchanan, Boston, Mass., argued for appellee.

With him on the brief were Laura Steinberg and Sullivan &

Worcester, Boston, Mass.

Allen C. Peters, Arlington, Va., argued for appellant. With

him on the brief were Asst. Atty. Gen. J. Paul McGrath, and

Walter A. Hall, Veterans Administration, Washington, D.C.

Before MARKEY, Chief Judge, and FRIEDMAN and KA-

SHIWA, Circuit Judges.

3a

FRIEDMAN, Circuit Judge.

This is an appeal from a judgment of the United States

Claims Court,* setting aside the termination of the appellee's

employment with the Veterans Administration (“VA”) as a

physician on the ground that prior to such termination the

agency had not counseled appellee and provided her with a

copy of her proficiency report pursuant to the requirements of

its regulations. We reverse and remand to the Claims Court to

decide the remaining issue in the case, which it did not reach,

I,

A. The appellee, Susanna Baginsky, is a physician special-

izing in pathology. In early 1973, she was appointed as Chief

of the Laboratory Services at a VA hospital. This was a major

post at the hospital, in which she had supervisory responsibili-

ty over a sizable number of employees in and for the proper

functioning of the various divisions of the laboratory. As VA

regulations required, she was given a 3-year probationary ap-

pointment. She entered on duty on April 15, 1973.

Although Dr. Baginsky apparently is a competent

pathologist, the hospital management quickly became dissatis-

fied with her administration of the laboratory. Indeed, even

before she was appointed, Dr. John F. Conlin, the hospital's

Chief of Staff who interviewed her and apparently was pri-

marily responsible for her selection, had doubts about her

qualifications. In a letter to her that he drafted in April 1973

but did not send, he described certain events in the interview

that displeased him and added the following parenthetical

* Pursuant to order of this court dated October 4, 1982, Judge Spector, on

October 8, 1982, entered a final judgment in accordance with his recom-

mended decision of March 5, 1982. We treat the government's exceptions to

that decision as an appeal from that final judgment.

da

note to himself; “(I'm being had!).” A week after Dr. Bagin-

sky's arrival, Dr. Conlin reviewed the unsent letter and added

another note: “(I've been had — Bill Maloney was right!).”

(emphasis in original), (This referred to Dr. William S.

Maloney, the dean of a local medical school who was one of

the persons whose approval of the appointment was required.

Dr. Maloney originally had told Dr. Conlin that he did not

consider Dr. Baginsky qualified to be a chief of service, but

withdrew his objection after learning that other doctors had

recommended her.)

Dr. Baginsky’s problems with Dr. Conlin began on the day

of her arrival, when “[s]he declined to submit to the 2 to 5

days of orientation which her supervisor had planned for her”

and went straight to work in the laboratory. Fdg. 17. When

Dr. Baginsky started work, there “were some ‘difficult situa-

tions’” in the laboratory. The staff, left unsupervised for some

time between chiefs, “was divided into feuding grqups, and

various members of the staff were not on speaking terms with

other staff members.” Fdg. 18.

Dr. Conlin met with Dr. Baginsky on April 26, 1973, 11

days after she started work at the hospital. Dr. Conlin “spoke

with [Dr. Baginsky] about personality clashes within [the

Laboratory] Service,” her proposal to hire technologists

(rather than bench-trained technicians), and her conflicts

with the Chief of Surgery and the hospital's personnel service.

Fdg. 21. Dr. Conlin had an extended discussion with her on

October 23, 1973. Fdg. 23. Dr. Conlin’s notes show that the

October meeting included a “‘[gleneral discussion of

unsatisf[ actory] operations,’” Dr. Baginsky’s “‘harassment’ of

her personnel and. . . the ‘general atmosphere of uncertainty

and discontent’” Dr. Conlin believed to exist in the labora-

tory, and the problems between Dr. Baginsky and the person-

nel service. Fdg. 23.

5a

In the fall of 1973, Dr. Baginsky recommended the hiring of

a person to fill a critical vacancy in the laboratory for a micro-

biologist. The person was hired, but the day after he came to

work in February 1974, Dr. Baginsky urged that he should im-

mediately be discharged because he was unqualified to do the

work. Dr. Conlin “assigned the entire blame for the . . . mat-

ter” to Dr. Baginsky, who apparently was unaware that she

was responsible for verifying the professional qualifications of

new laboratory employees. Fdg. 32.

VA regulations require the preparation of an annual pro-

ficiency report for all physicians. VA Manual, MP-5, pt. II,

ch. 6. Dr. Conlin, who prepared the proficiency report for

Dr. Baginsky covering the first year of her service (from April

15, 1973 to April 15, 1974), gave her a rating of 52 out of a

possible 88. The VA had only two descriptive ratings —

“satisfactory’’and “unsatisfactory” — and any rating above 38

was “satisfactory.” The 52 rating Dr. Conlin gave Dr. Bagin-

sky was the lowest rating he ever had given. He never had

given a rating of lower than 60, and his average ratings ranged

from the “upper-sixties to the middle-seventies.” Fdg. 37.

Other VA officials testified that most physicians received rat-

ings in the 65-75 range.

In the “comments” section of the report, Dr. Conlin criti-

cized several aspects of Dr. Baginsky’s performance. He

stated that “‘[a]t no time’ during” Dr. Baginsky’s service as

chief of the laboratory “had daily operations in her section

‘been conducted in a smooth running fashion,’” and he con-

cluded that “‘[dJesire for her retention is contingent upon a

substantial improvement in her performance." Fdg. 38. Dr.

Baginsky was not shown a copy of the April 15, 1974 profi-

ciency report until much later. Dr. Conlin met with Dr. Ba-

ginsky on April 22, 1974. In his deposition he testified that at

that meeting he “went over the contents” of the report. In her

testimony, Dr. Baginsky denied that he had done so,

6a

The hospital management's dissatisfaction with Dr. Bagin-

sky's running of the laboratory continued throughout 1974. In

August of that year, a survey team the VA Central Office in

Washington had selected, made a periodic examination of the

hospital. At least five laboratory employees requested in-

dividual interviews with the team. The survey report was

critical of the laboratory and recommended that a “special

sight [sic] visit” be made. That would have been a visit to and

examination of the laboratory by a “peer-review group” of

pathologists from other V.A. hospitals,” “being a reflection

that it’s not measuring up.” The hospital director approved

the recommendation.

The VA Central Office advised the hospital that it did not

approve a special “sight visit” during an employee's proba-

tionary period. It suggested that if Dr. Baginsky’s perform-

ance was unsatisfactory, the hospital might consider terminat-

ing her.

On November 15, 1974, Dr. Conlin prepared, and the hos-

pital director signed and forwarded to the VA Central Office,

a report describing Dr. Baginsky’s deficiencies and recom-

mending termination of her employment. Three days later,

Dr. Conlin met with Dr. Baginsky and described a number of

areas in which her performance was deficient. Dr. Conlin

further testified in his deposition that “[a]t various times I

stated to Dr. Baginsky that, ‘I am appalled. I am thoroughly

dissatisfied.’ Def.Exh. 6 at 93.

On December 19, 1974, the hospital received from the VA

Central Office authority to remove Dr. Baginsky. Although

at the time Dr. Conlin apparently had not definitely decided

to take that action, he “saw it as unavoidable; that I had gone

as far as I could on counseling.” Def.Exh. 6 at 92.

On February 3, 1975, six employees of the laboratory sub-

mitted to Dr. Conlin various “grievances against” Dr. Bagin-

sky and urged that she “should be removed.” A week later on

Ta

February 10, 1975, Dr. Conlin prepared a special proficiency

report in which he gave her an unsatisfactory rating of 27.5.

He showed her a copy of the report on February 14, 1975.

After the report had been approved by the hospital director

(who raised the rating to 33.5, also an unsatisfactory rating), a

copy was sent to Dr. Baginsky on March 4, 1975.

In the interim, Dr. Conlin had determined to convene a

Professional Standards Board to consider whether Dr. Bagin-

sky’s employment should be terminated. On February 14,

1975, Dr. Conlin gave Dr. Baginsky a document entitled

“Items for Professional Standards Board Review Concerning

DR. SUSANNA BAGINSKY, Chief, Laboratory Service.” The ~

document contained 33 numbered paragraphs describing

various incidents which Dr. Conlin believed demonstrated

Dr. Baginsky’s unsuitability for her position.

The Board was convened on March 7, 1975. After consider-

ing written and oral statements from VA employees, including

a written statement from Dr. Baginsky, the Board concluded

that Dr. Baginsky’s performance was unsatisfactory and rec-

ommended that she be dismissed. This was done on May 19,

1975.

B. The petition in Dr. Baginsky’s suit, which originally was

filed in the United States District Court for the District of Mas-

sachusetts and transferred to the Court of Claims, sought

backpay and reinstatement. It contained three counts. Inso-

far as here pertinent, count I (the only count the present ap-

peal involves) alleged that the VA had violated its regulations

because prior to discharging Dr. Baginsky, the agency had not

counseled her as the regulations required. Count II alleged

that the VA had denied her due process because the Profession-

al Standards Board had considered material that had not been

furnished to her and also evidence of additional charges about

which she had not been informed. Count III alleged that there

was no “substantial or rational basis” for discharging her.

8a

The government moved to dismiss or for summary judg-

ment. The Court of Claims granted summary judgment on

and dismissed count III, but denied dismissal or summary

judgment with respect to the first two counts. 22] Ct.Cl. 908

(1979).

With respect to count I, the court stated that the VA regula-

tion requiring counseling of an employee who had served more

than one year of a probationary period before such employee

may be dismissed (see infra pp. 1la-12a) “is an important pro-

" tection for the employee since it gives an opportugity to im-

prove his work and avoid dismissal during the later part of the

probationary period.” Jd. at 911. The court rejected the gov-

ernment's contention that under another provision of the regu-

lation the VA could dismiss a probationary employee whether

or not there had been counseling. It stated that “[a]llegations

that the dismissal proceeding involved a violation of a regula-

tion that was not apparent on the record of that proceeding

would present an issue of material fact requiring a trial,” and

that “there is a sufficient relationship between the alleged

violations in this case and the dismissal to sustain plaintiff's

cause of action.” Jd. at 911-12.

Expressing no opinion on whether Dr. Baginsky had “been

properly counselled and shown her poor proficiency report,”

the court remanded the case to the Trial Division “to deter-

mine whether plaintiff was shown her proficiency report

dated April 15, 1974 at that time or given counselling as the

Manual requires.” Jd. at 912. The court further held that

count II of the petition, alleging a denial of due process, also

raised factual questions that precluded granting summary

judgment.

C. On the remand, the trial judge determined to try count I

first. He did so because that count would require only a short

trial, and if Dr. Baginsky prevailed on it, there would be no

need to try count II, which would require a longer trial. Be-

9a

cause Dr. Conlin died before the trial began, his deposition

testimony and attached exhibits were introduced in evidence.

Dr. Baginsky and her husband and three officials of the

Veterans Administration testified.

The trial judge held that the VA had not complied with the

counseling regulations in connection with preparation and is-

suance of Dr. Baginsky’s April 15, 1974 proficiency report. He

ruled that the agency’s noncompliance with the regulations in-

validated the discharge of Dr. Baginsky and that she was en-

titled to recover backpay and to be reinstated to her position,

II.

In invalidating Dr. Baginsky’s discharge, the trial judge in-

terpreted the prior Court of Claims decision in this case as (1)

limiting him to determining whether Dr. Baginsky had been

properly counseled in connection with the preparation of her

1974 proficiency report and whether that report had been

shown to her when it was prepared, and also as (2) indicating

that if these questions were answered negatively, Dr. Bagin-

sky’s discharge was improper. Although that prior decision

may not have been as clear and explicit as it could have been so

that the trial judge understandably so interpreted it, it did not

restrict the issues on remand as the trial judge believed.

The decision of the Court of Claims pointed out that the

purpose of the VA counseling requirements is “to provide em-

ployees with an opportunity to correct any deficiencies in their

performance and thereby to avoid dismissal.” The statement

at the end of the discussion of count I that the court was re-

manding to the Trial Division “to determine whether plaintiff

was shown her proficiency report dated April 15, 1974 at that

time or given counselling as the Manual requires” was not in-

tended to limit the trial judge to considering whether proper

counseling was given in connection with that report. Rather,

10a

it contemplated a full review of the broader issue whether,

prior to her discharge, Dr. Baginsky had been given the

counseling the Manual required.

{1} Upon laying bare the error by the trial judge, the nor-

mal practice would be to remand the case to him for reconsid-

eration under the proper standard. Cf. Federal Communica-

tions Commission v. Pottsville Broadcasting Co., 309 U.S.

134, 145, 60 S.Ct. 437, 442, 84 L.Ed. 656 (1940). See, for ex-

ample, Ardell Adams v. United States, 680 F.2d 746, 497 (Ct.

Cl. 1982). That practice, however, is not inflexible and may

be departed from in appropriate circums.ances, particularly

where, as here, the record leaves no question as to the decision

that must result from a remand.

In the present case the record is relatively short, and the

legal and factual issues are uncomplicated and not difficult to

resolve. The case has been pending for more than 3 years. In

order to expedite its final resolution, we think it appropriate

now for us to decide the counseling issue. Cf. O'Leary v.

Brown-Pacific-Maxon, Inc., 340 U.S. 504, 508, 781 S.Ct. 470,

472, 95 L.Ed. 483 (1951); Cahill v. New York, N.H. & H.

R.R., 351 U.S. 183, 188-89, 76 S.Ct. 758, 761, 100 L.Ed. 1075

(1956) (Black, J. dissenting). See, for example, Navajo Tribe

of Indians v. United States, 624 F.2d 981, 224 Ct.Cl. 171

(1980), and Minnesota Chippewa Tribe v. United States, 650

F.2d 285, 222 Ct.Cl. 551, 555-56 (1980).

Ill.

A. The requirements for counseling in the VA regulations

that the trial judge found the agency had violated deal with

counseling in connection with a physician's annual proficiency

report. They provide that “[a] counseling conference will be

conducted for marginal or unsatisfactory employees not later

than 90 days prior to the due date of the annual report” and

lla

that “[f]ailure to correct the deficiencies during the ensuing 30

to 60 days, depending on the circumstances, will be cause for a

second counseling conference.” VA Manual, D.M. & S. Sup-

plement, MP-5, Part II (“Manual”), * 6.06c(5), e(2). The

trial judge found that Dr. Baginsky had been a marginal

employee during her first year of service and that prior to pre-

paring her annual proficiency report (due on April 15, 1974),

Dr. Conlin had failed to conduct either the 90-day or the 30-

to 60-day counseling conference.

The purpose of the counseling procedures is, es noted in the

prior Court of Claims decision, to give a physician whose per-

formance is marginal or unsatisfactory the opportunity to im-

prove before his or her proficiency report is prepared. If,

despite the counseling, performance does not improve, the

usual result is that an employee receives an unsatisfactory

rating and discharge proceedings are initiated. The regula-

tions so provide, They state: “In the event there has not been

sufficient improvement following the second counseling con-

ference and the employee’s performance is unsatisfactory, an

unsatisfactory proficiency rating will be assigned the

employee, and action will be taken as indicated in paragraph

6.07.” Manual, § 6.06e(3). In the case of a temporary

employee, such as Dr. Baginsky, paragraph 6.07 provides for

the convening of a Professional Standards Board.

Further indication that the 90- and 30- to 60-day counseling

procedures apply only where an unsatisfactory rating is con-

templated on an annual performance report is contained in

paragraph 6.06f of the Manual. This provision, which follows

a section of the Manual captioned “Unsatisfactory Perfor-

mance,” provides: “If an unsatisfactory rating is con-

templated and it has clearly been established that the employ-

ee has not been counseled concerning his unsatisfactory service

is provided for above, a recommendation will be made to the

approving official to delay the annual rating for a period not to

l2a

exceed 90 days. During this period the employee will be coun-

seled as outlined above. The approving official will assign an

annual rating at the end of the period cited above.”

In the present case, however, Dr. Baginsky was not dis-

charged because she received an unsatisfactory rating on her

annual proficiency report. Her rating there was satisfactory.

Although the hospital management was disappointed with her

performance, Dr. Conlin hoped that she would improve suf-

ficiently to warrant her retention.

[2] Dr. Baginsky was discharged as a result of receiving an

unsatisfactory rating on a special proficiency report prepared

approximately 10 months after her first annual proficiency

report. Unlike the requirements for the annual proficiency

report, there is no requirement for counseling in connection

with the preparation of a special proficiency report containing

an unsatisfactory rating. The regulations governing the prep-

aration of proficiency reports have separate sections dealing

with annual and special reports. Manual, 97 6.05b & c. The

regulations provide that a special proficiency report “will be

prepared . . . [p]rior to appearance by probationary, tem-

porary full-time, part-time, or intermittent employee before a

Professional Standards Board for review . . . if more than three

months have elapsed since date of last annual report.”

Manual, § 6.05e(1)(a).

B. Although counseling is not required before preparing a

special proficiency report containing an unsatisfactory rating,

the record shows that Dr. Conlin counseled Dr. Baginsky at

least twice prior to preparing her special proficiency report.

The VA thus provided her with more than it was required to

furnish. The record further shows that during her service as

Chief of the Laboratory Service, Dr. Baginsky was informed

repeatedly about the deficiencies in her performance and

given ample opportunity to correct them.

l3a

The VA regulations do not specify the form or content of

counseling conferences. They state that the conferences are to

be “informal and confidential and of such nature as to inform

each employee, verbally or in writing, of the manner in which

he is performing or failing to perform his assigned duties.”

Manual, * 6.06c(1). Dr. Conlin agreed that “in essence” the

“purpose of the counseling system is an ongoing basis to advise

the employees of their strengths and weaknesses.” Def.Exh. 6

at 28-29. He stated that he did not notify employees in

writing of a counseling conference, which “would usually be

on an informal basis.” /d. at 60. Dr. Baker, a 25-year VA

employee who was the director of the hospital during Dr.

Baginsky’s service there and Dr. Conlin’s superior, and at the

time of trial held an important medical post at the Central Of-

fice, had had experience in counseling. He described counsel-

ing with physicians “generally” as “informal and very seldom

is it ever reduced to writing.” Transcript at 149.

Dr. Conlin testified that he met with Dr. Baginsky a

number of times and discussed problems in the laboratory and

the respects in which her performance was deficient. Except

for one of the meetings, he made informal handwritten notes

during the discussions. These notes were transcribed and in-

troduced in evidence. Dr. Conlin listed the notes in response

to a request in Dr. Baginsky’s interrogatories for notes con-

cerning his “counseling conferences” with her. He also iden-

tified various documents “which reported or refer to any

counseling conferences actually held with” Dr. Baginsky.

Although Dr. Conlin’s notes are cryptic, they show that

counseling conferences were held in which Dr. Conlin pointed

out to Dr. Baginsky her deficiencies. Two meetings are par-

ticularly significant in connection with the preparation of the

special proficiency report.

At a meeting on November 18, 1974, almost 90 days before

Dr. Conlin prepared the report, he discussed with her a

l4a

number of the principal problems in the laboratory service.

Among them were “continuing unrest” and the possibility of

an “adverse effect” on accreditation. Def.Exh. 3, Item 5. Dr.

Conlin met with Dr. Baginsky again on January 21, 1975, and

discussed her continuing deficient performance.

As noted, Dr. Conlin was not alive at the time of the trial.

In her testimony, Dr. Baginsky acknowledged that she had

met with Dr. Conlin in February 1975, when he showed her

the special proficiency report. Except for that meeting, how-

ever, Dr. Baginsky stated that “I don’t remember having had

any meeting with Dr. Conlin” alone. Transcript at 122. This

statement does not contradict the deposition testimony and

notes of Dr. Conlin described above, in which he referred to a

number of meetings with Dr. Baginsky. The fact that Dr.

Baginsky did not remember those meetings is not inconsistent

with and does not undermine the other evidence that the

meetings took place, nor does it justify us in rejecting that

evidence.

On the basis of the record before us, we conclude that Dr.

Conlin counseled Dr. Baginsky at least twice before preparing

the February 1975 special proficiency report, and that, in this

counseling, he pointed out to her the respects in which her per-

formance continued to be deficient.

C. The remaining question is whether the VA's failure to

properly counsel Dr. Baginsky before preparing her April 1974

annual proficiency report and its contemporaneous failure to

show her that report, so tainted the subsequent dismissal pro-

ceedings based upon the February 1975 special proficiency

report (for which she was adequately counseled) that the dis-

missal cannot stand.

In deciding that question, the purpose of the counseling re-

quirement must be borne in mind. As emphasized in the

earlier Court of Claims decision, a major objective of the

counseling system is “to provide employees with an opportuni-

l5a

ty to correct any deficiencies in their performance.” 221

Ct.Cl. at 912. The court added that if Dr. Baginsky “[h]ad

. . . been properly counselled and shown her poor proficiency

report (and we indicate no views here on that question), she

might have been able to improve her performance and avoid

dismissal.” Jd.

The latter statement was made as dictum in deciding the

government's motion for summary judgment. At that stage of

the case, the facts as developed in the present record after trial

were not before the court. The court was not aware of the

details surrounding the preparation of Dr. Baginsky’s

February 1975 special proficiency report, including the coun-

seling she received prior to that report. The court did not

know of the numerous occasions on which Dr. Conlin and

others at the hospital called to Dr. Baginsky’s attention the

various respects in which her operation and supervision of the

laboratory were deficient and her failures to improve the per-

formance of her duties despite receiving this advic:

[3] Considering all the circumstances, we cannot say that

the lack of counseling in connection with the 1974 annual pro-

ficiency report or the failure of the VA to show that report to

her at the time of its preparation denied her the opportunity to

improve her performance and thus avoid dismissal. Accord-

ingly, we hold that the lack of counseling concerning the an-

nual deficiency report and the failure to show her that report

did not invalidate the VA’s discharge of Dr. Baginsky follow-

ing the preparation of her unsatisfactory special proficiency

report of February 1975. We therefore sustain her discharge

against the challenges to it contained in count I of the petition.

The judgment of the United States Claims Court is reversed,

and the case is remanded to that court to consider count II of

the petition.

REVERSED and REMANDED.

16a

KASHIWA, Circuit Judge, dissenting in part.

I agree with the majority that the prior order of the Court of

Claims, 221] Ct.Cl. 908 (1979), contemplated a full review as

to whether, prior to her discharge, Dr. Baginsky had been

given the counseling the Manual required. The majority,

however, determines this previously undecided issue on its

own without a remand to the Claims Court. I would instead

remand the case to the Claims Court for a determination of

the counseling issue. I do not believe that it is proper or

desirable for us to make our own initial fact findings on this

issue without prior consideration by the Claims Court.

This court’s jurisdiction is governed by 28 U.S.C. § 1295

(1982). Section 1295(a)(3) provides this court with jurisdic-

tion to review final decisions of the United States Claims

Court. That jurisdiction is purely statutory and may not be

expanded beyond its statutory grant. See United States v.

Young, 544 F.2d 415 (9th Cir. 1976), cert. denied, 429 U.S.

1024, 97 S.Ct. 643, 50 L.Ed.2d 626 (1976); Beneficial In-

dustrial Loan Corp. v. Smith, 170 F.2d 44 (3rd Cir. 1948),

aff'd, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949);

Hatzenbuhler v. Talbot, 132 F.2d 192 (7th Cir. 1942). The

Claims Court has not been given an opportunity to decide the

factual and legal questions of the counseling issue in the in-

stant case. There has been no final decision as to that issue,

yet the majority finds it appropriate to usurp the function of

the Claims Court and make its own de novo factual findings.

The majority fails to recognize that this court and the Claims

Court are not a single court with both original and appellate

jurisdiction, as was a predecessor court, the Court of Claims.

The jurisdiction of this court, like that of other courts of ap-

peals, is exclusively appellate. Cf. Roche v. Evaporated Milk

Association, 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185 (1943).

This court does not have any original jurisdiction, that juris-

diction is vested in this instance in the United States Claims

l7a

Court. 28 U.S.C. § 1491 (1982); Cf. Whitney v. Dick, 202

U.S. 132, 26 $.Ct. 584, 50 L.Ed. 963 (1906).

In support of its position the majority cites two Supreme

Court cases. O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S.

504, 508, 71 S.Ct. 470, 472, 95 L.Ed. 483 (1951); Cahill v.

New York, N.H. & H. R.R., 351 U.S. 183, 188-89, 76 S.Ct.

758, 761, 100 L.Ed. 1075 (1956) (Black, J., dissenting).

Neither case, however, supports the action taken by the ma-

jority today. The first, O'Leary, concerns the Supreme

Court’s ability to review the record and previously made find-

ings of fact of an administrative body under the substantial

evidence standard. In that case an administrative determina-

tion had been made that included findings of fact and those

findings were subsequently upheld by the district court. The

Court of Appeals then reversed on a legal issue but did not

reach the factual questions. The Supreme Court reversed the

Court of Appeals, found it unnecessary to remand the case and

reviewed the record itself. In O'Leary, unlike our case, there

had been a full opportunity for the fact finding body to create

a complete record and make findings of fact. In our case there

has been no opportunity for the fact finder, the Claims Court,

to consider the issue and make appropriate findings. Further,

the Supreme Court in O'Leary was not concerned with the

ability of a court of appeals to make de novo fact findings, but

instead simply addressed its ability to review a complete

record.

In the second case cited by the majority, Cahill, Justice

Black in dissent said:

We have never held that in every instance where the

Court of Appeals has failed to decide a point, we must re-

mand the cause to that Court.

18a

Id. at 188, 76S.Ct. at 761. This statement lends no support to

the majority's actions, for it simply speaks to the relation of the

Supreme Court to a court of appeals. In Cahill, both courts

concerned were appellate courts, while here we are dealing

with an appellate court and a court of original jurisdiction.

The majority's action in this case, however, turns this court,

an appellate court, into an initial fact-finding body like a trial

court.

Even if the majority's action is proper, its failure to remand

the case to the Claims Court is certainly neither necessary nor

desirable in the present case. The majority view precludes the

trial judge from developing the record further, as he would

have been empowered to do had the case been remanded.

Further development of the record would have been appro-

priate in light of the new, broader issue to be resolved. By

deciding the case now, on the present record, we have pre-

cluded the parties the full opportunity they're entitled to to

develop their case. In addition, the majority's decision pre-

vents the trial judge from making credibility judgments that

only he, having observed the parties, is able to do. The ma-

jority claims the reason for its action is the length of time this

case has been pending. This case, however, is not ended by

the majority’s ruling, since it is remanded for a trial on Count

II of the petition. Thus the majority's rationalization of the

unusual action it takes today appears dubious.

19a

In the United States Court of Claims

TRIAL DIVISION

No. 519-78

(Filed: March 5, 1982)

SUSANNABAGINSKY ) Civilian pay; Veterans Adminis-

) tration; personnel regulations is-

) ued pursuant to statute with

) force and effect of law; profi-

) ciency report procedures; effect

v. ) of failure to show, discuss and

) counsel with rated employee:

) additional requirements in case

) of “marginal” employee; rein-

)

THE UNITED STATES statement; correction of records.

Robert M. Buchanan, attorney of record for plaintiff. Laura

Steinberg, Sullivan <& Worcester, of counsel.

Lawrence S. Smith, with whom was Acting Assistant Attor-

ney General Stuart E. Schiffer, for defendant.

OPINION *

SPECTOR, Trial Judge: The plaintiff, a physician special-

izing in pathology, was the Chief of Laboratory Services at the

* The trial judge’s recommended decision and conclusion of law are sub-

mitted in accordance with Rule 134(h).

20a

Brockton, Massachusetts, Veterans Administration Hospital

from April 15, 1973, until her removal from that position on

May 19, 1975. In this action she seeks reinstatement to her

former position, back pay, and related relief. Her amended

petition’ sets forth three counts. The first alleges a violation

by the Veterans Administration of the requirements in its own

Personnel Regulations Manual. Pursuant to the manual.

plaintiff's supervisor, the hospital's Chief of Staff, prepared an

annual proficiency report with respect to plaintiff dated April

15, 1974. As stated by this court in its prior order of October

19, 1979:

The report gave plaintiff a marginally satisfactory rating

and noted, “Desire for her retention is contingent upon a

substantial improvement in her performance.” [Empha-

sis supplied).

Plaintiff's first count is based on provisions of the manual

which require that the April 15, 1974 proficiency report be

shown to and discussed with the employee, and she alleges

that the report was neither shown to nor discussed with her.

This first count further cites the manual as mandating special

counseling for a “marginal” employee, and she alleges that the

required counseling was not provided either.

In the second count, plaintiff contends that she was there-

after denied due process in violation of the United States Con-

stitution by a Professional Standards Board convened on

March 7, 1975. The board concluded in a report dated April

2, 1975 that her performance was unsatisfactory. Plaintiff

alleges that the board heard highly prejudicial and false

‘The case was originally filed in the U.S. District Court for the District of

Massachusetts and thereafter transferred to this court.

2la

charges which were never disclosed to her. The third count

maintains that there was no substantial nor rational basis for

her discharge.

Defendant moved for dismissal or for summary judgment,

and the motion was denied by the court (except as to Count

III) in the aforementioned order and opinion of October 19,

1979. With respect to Count I, the court found:

* * * Paragraph 6.05 of the DM&S Supplement * * *

provided that before the end of an employee's first year of

employment “the rating official will discuss the content

and conclusions of the report with the employee he has

rated. Employees shall be permitted to view the ap-

proved proficiency report in the company of the rating

official, approving official, or other professional-

administrative supervisor having sufficient knowlege to

discuss the rating with the employee.” If a marginal or

unsatisfactory report was contemplated, the provision

further required a counseling conference not later than 90

days prior to the due date of the annual report. * * *

[Emphasis supplied].

* * * This is an important protection for the employee

since it gives an opportunity to improve his work and

avoid dismissal during the later part of the probationary

period. * * * If the plaintiff can sustain her allegations,

the government has violated its regulation.

* * * We conclude that there is a sufficient relationship

between the alleged violations in this case and the

dismissal to sustain plaintiff's cause of action. The

Manual at paragraph 4 of chapter 6 indicates that the

purposes of the proficiency rating system include pro-

viding a basis for informing employees of their expected

performance and advising them of the calibre of their

work. The system evidently is intended in part to pro-

22a

vide employees with an opportunity to correct any defi-

ciencies in their performance. The failure of plaintiff to

correct her deficiencies directly led to her dismissal. Had

she been properly counseled and shown her poor profi-

ciency report (and we indicate no views here on that

question), she might have been able to improve her per-

formance and avoid dismissal.

A remand to the Trial Division is therefore necessary to

determine whether plaintiff was shown her proficiency

report dated April 15, 1974 at that time or given counsel-

ling as the Manual requires. [Emphasis supplied].

The court also found it necessary to remand with respect to

Count II, stating that it would be inappropriate to decide this

issue without a further development of the facts, including all

of the information that was before the board. At a pretrial

conference of December 4, 1980, it was pointed out that if

plaintiff prevailed on either Count I or Count II, that would

be dispositive of the case. It was further observed that the

issues raised by Count I could be resolved after a short trial,

not exceeding 1 or 2 days, and with a minimum of testimony

and documentary material, whereas trial of Count II on the

Constitutional grounds asserted would require a much greater

volume of testimony and documentary evidence. It was there-

fore suggested that Count I be tried first, but without preju-

dice to a later trial of Count II, if necessary. This suggestion

was adopted.

The issue at this phase of the proceeding is, therefore,

whether plaintiff was shown her April 15, 1974 proficiency

report at the time of its preparation and given the counseling

required by the applicable regulations of the Veterans Admin-

istration.

As noted earlier, the court order of October 19, 1979 refers

to the annual proficiency report of April 15, 1974 as a “mar-

23a

ginally satisfactory rating,” (emphasis supplied) and further

cites the regulations as requiring a counseling conference not

later than 90 days prior to the due date of the annual report if

“a marginal or unsatisfactory report was contemplated.” (Em-

phasis supplied). The proficiency report is elsewhere referred

to in the court’s order as “poor.” Defendant nevertheless

urged at trial that it was not a marginal or poor proficiency

report and that therefore the regulations do not require the

prescribed counseling conference. It will therefore be

necessary to explore the relationship which existed between

plaintiff and her supervisor during the period of her employ-

ment, and to examine into whether she was regarded by her

supervisor as “marginal”.

Plaintiff's Professional Background

Plaintiff was born in 1912 in what was then a portion of the

Austro-Hungarian Empire. She studied medicine and re-

ceived her medical degree from the University of Prague in

1938. After practicing medicine continuously in Prague until

1946, she immigrated to this country and thereafter became a

citizen of the United States. Plaintiff continued the practice of

medicine in this country and was permanently licensed in

Massachusetts, New York, and Connecticut. At the time of

the events at issue, she was board certified in anatomic

pathology and she has since become board certified in clinical

pathology. Between 1946 and 1973, when she was employed

at the Brockton V.A. Hospital, plaintiff was continuously in

medical practice, in residency, or in training. Immediately

prior to her employment at the hospital, plaintiff had been

Chief of Laboratory Services at a hospital in Norwich, Con-

necticut, a job she left voluntarily because of the difficulty in

commuting from her home in Massachusetts. During her

several periods of residency, plaintiff also worked for a total of

24a

5 years in other Veterans Administration hospitals. At the

time of trial, her husband Rolf, also a physician, had been for

a number of years a Chief of Service at the Bedford,

Massachusetts Veterans Administration Medical Center.

Plaintiff's Employment at Brockton V.A. Hospital

In early 1973 Dr. John F. Conlin who was Chief of Staff at

the Brockton, Massachusetts Veterans Administration

Hospital, met plaintiff and interviewed her for the position of

Chief of Laboratory Services. Dr. Conlin died prior to trial of

this case and his pretrial testimony has been preserved in a

deposition. A number of his papers are contained in other ex-

hibits and were admitted into evidence. Dr. Conlin states in

his deposition that plaintiff, who was accompanied by her

husband Rolf, was late for her initial interview, that he found

her an extremely difficult person to interview, and that he felt

that she was not as directly responsive to his questions as he

would have liked. He was surprised when plaintiff strongly

objected to his seeking information about her from her most

recent employer. Dr. Conlin nevertheless felt that, on

balance, plaintiff would be suitable for tne position of Chief of

Laboratory Services. He forwarded the requisite information

on plaintiff through customary channels for approval of her

appointment. Among those whose approval was required was

a Dr. William S. Maloney, a member of a Deans’ Committee

set up by area medical schools with which the hospital was af-

filiated. Dr. Maloney took issue with the proposed appoint-

ment and noted that plaintiff did not have the requisite quali-

fications for that level of responsibility. However, when other

doctors provided favorable recommendations supporting

plaintiff, Dr. Maloriey withdrew his objection to her appoint-

ment and returned her papers with his approval.

25a

Dr. Conlin’s Opinion of Plaintiff

Dr. Conlin had initial misgivings concerning plaintiff as evi-

denved in a letter which he drafted in April 1973, but which

he never sent to her. In the draft, he expressed his displeasure

at her tardiness for the initial interview and at her objection to

his obtaining information about her from her previous

employer. At the bottom of the unsent letter he added the

following parenthetical note to himself: “(I’m being had!).”

In his deposition Dr. Conlin explained that he had written the

unsent letter because of an impression that he was dealing

with “a tremendous verbal push, an extremely difficult person

to discuss with, to keep to an agenda.” Although he did not

mention it in his letter, he had also been disturbed by

plaintiff’s vigorous and forceful refusal to tour the laboratory

and to meet her potential coworkers following her initial inter-

view. Plaintiff received a probationary appointment as Chief

of Laboratory Services and reported for duty on April 15,

1973, as instructed. She declined to submit to the 2 to 5 days

of orientation which her supervisor had planned for her and as

soon as routine personnel and payroll processing had taken

place, Dr. Baginsky went right to the laboratory and began to

work.

When she assumed her responsibilities as Chief of Labora-

tory Services at Brockton, plaintiff faced what Dr. Conlin

acknowledged were some “difficult situations.” The previous

chief had become pregnant and resigned her position. A

lengthy vacancy had followed and this created an administra-

tive gap. The laboratory staff was divided into feuding

groups, and various members of the staff were not on speaking

terms with others. Several key employees had been consider-

ing retirement within the next 12 to 18 months. To make mat-

ters worse, the laboratory needed substantial improvement if

it was to retain its accreditation.

26a

Dr. Conlin stated in his deposition that plaintiff had an out-

spoken and direct manner. In his view this caused her to

alienate some members of her staff. According to him, one of

the earliest and most substantial sources of friction between

plaintiff and her staff was her interest in hiring medical

“technologists,” college graduates with training to perform

work in the laboratory. This was her suggestion for upgrading

the quality of the Service. At that time most of the work in

question was performed by “bench-trained technicians” who

had gained their expertise by performing the work rather than

by attending programs qualifying them to become technolo-

gists. In Dr. Conlin’s view, the technicians feared that

technologists would eventually replace them and they felt con-

siderable antipathy toward plaintiff because of her suggestion.

There is, in fact, no convincing evidence that plaintiff intend-

ed to force technicians out of their jobs in order to make room

for technologists, nor to hire only technologists in the future. It

appears that she merely wanted to add one more technologists

to the staff in order to upgrade the laboratory over a period of

time.

Dr. Conlin’s reservations concerning plaintiff were so strong

at this point that on April 23, 1973 he reviewed the unsent let-

ter earlier mentioned and below the phrase “(I’m being

had!),” he added another note: “(I’ve been had — Bill

Maloney was right!).” (Emphasis in original). On April 26,

1973, he spoke with plaintiff about personality clashes within

her Service and suggested that she delegate some of her

authority to an experienced staff member who would act as a

“coordinator.” He also stated his opposition to her suggestion

to hire technologists, and expressed his worry that plaintiff's

suggestion would alienate the technicians. Finally, Dr. Con-

lin indicated that plaintiff had caused conflict with the Chief

of Surgery and with the people in the personnel service, and he

advised her to “[e]ase off” on them.

27a

There is scant evidence regarding plaintiff's performance

from April until October 1973. Dr. Conlin’s only extended dis-

cussion with plaintiff during this time took place on August 28,

1973. Notes which he took on the routine business discussed,

conclude with these cryptic comments: “— Told situation

generally unsat & too much turmoil —? Approval in jeopardy

unless square away — (specifics) —.” Dr. Conlin’s next extend-

ed discussion with plaintiff took place on October 23, 1973. His

notes of that meeting reflect a growing dissatisfaction with

plaintiff's performance as a Service Chief. They recite a

“{gleneral discussion of unsatisf. operations” and indicate his

belief that plaintiff showed distrust of several of her staff

members and that several staff members were “gone” or

“going.” This is a reference to the decision of several to retire or

transfer from the Service, moves that Dr. Conlin attributed to

plaintiff's “harassment” of her personnel and, apparently, to

the “general atmosphere of uncertainty and of discontent” that

he felt’ prevailed within the Service. The fact is that key

employees were eligible to retire on the day plaintiff assumed

her position and they had indicated to her at that time that they

were planning to retire soon.

Dr. Conlin’s notes of Octuber 23, 1973, also indicate that

“Personnel” was “extremely upset,” and that there was a

“need to upgrade and ride closer herd” over the Service since

matters were “not going well as is.” He refers to “gold cards”

and “Blue Book,” items in the administrative reporting systems

for which plaintiff was ultimately responsible within her Serv-

ice. Plaintiff's conflicts with the personnel service arose large-

ly because of her purported shortcomings in meeting those and

other paperwork requirements. Dr. Conlin was very con-

cerned about what he regarded as plaintiff's abuse of her per-

sonnel. He noted in his deposition that, even in plaintiff's first

days as a Service Chief, “there were ongoing frictions of sub-

stantial volume, tearful interviews: ‘I can’t put up with the

interferences, the telephone calls to me at home at night.’”

28a

He termed the Service “a very unhappy shop.” As already

noted, he felt that plaintiff's plan to hire medical technologists

harmed the morale of technicians on her staff and when sever-

al of plaintiff's technical staff retired he attributed their

departures to plaintiff's purported harassment of them. He

also felt that plaintiff displayed favoritism, communicated

poorly, and failed to conduct adequate meetings with her

staff.

It is not at all clear that Dr. Conlin fully discussed the fore-

going concerns with plaintiff or that he mentioned other con-

cerns which he apparently considered important but which re-

ceived little or no attention during the aforementioned discus-

sions of April 26, August 28, and October 23, 1973. These

concerns may not have seemed as serious to plaintiff as they

did to him and as reflected in his private notes. Dr. Conlin

was worried that the laboratory might lose its accreditation.

He felt that “accrediting authorities had been overly kind in

accepting promises and good will” in the past, and feared that

plaintiff was failing to upgrade the laboratory to mhintain its

accreditation: Specifically, Dr. Conlin noticed what he con-

sidered to be unsafe conditions during his visits to the labora-

tory. He observed, for example, that laboratory personnel

were using suction-aspiration pipettes instead of the safer,

automatic pipettes as required by accreditation officials. He

also felt that too much work that should have been done in the

hospital was being sent to outside laboratories.

He also appeared to be upset about what he regarded as un-

necessary delays in hiring personnel. When funds became

available for the hiring of two additional laboratory techni-

cians in connection with the opening of a new 60-bed addition

to the hospital, for example, plaintiff seemingly took an inor-

dinate time to hire them. In Dr. Conlin’s words, she delayed

“a month, two months, three months, four months.” Accord-

ing to him, plaintiff had conflicts with the personnel service at

29a

the hospital. Although there is evidence to indicate ocherwise,

the personnel service accused plaintiff of making excessive

promises to job applicants. For example, it claimed that she

had promised to hire one applicant for a specific position even

though she could not do so until the personnel service ap-

proved the applicant. The personnel service maintained this

position even though the evidence indicates that the interested

applicant herself later denied such promises were made. As

already mentioned, the personnel service complained that

plaintiff failed to meet reporting requirements in a timely

manner or to recruit personnel aggressively.

Whether or not Dr. Conlin’s perceptions were well-

founded, there is no evidence that between October 23, 1973

and March 28, 1974, he or anyone else in authority at the

hospital had any extended discussion with plaintiff. As will

later appear, it is especially significant that no such discussions

took place in January of 1974.

The Early Brooks Matter

In late 1973 and early 1974, one of the most troubling affairs

in plaintiff's tenure with the Brockton V.A. Hospital took

place. It undoubtedly had an adverse impact upon the rela-

tionship between plaintiff and her supervisors and upon their

evaluation of her. A vacancy had opened up for the only

microbiologist position at the hospital. This employee is re-

sponsible for the operation of the Microbiology-Parasitology,

Serology, and Blood Bank Sections of the Laboratory Service.

It is a position of crucial importance to the lives and health of

the patients. Of the eight or nine applicants, a Mr. Early

Brooks appeared on paper to be clearly the best. Because of

funding restrictions plaintiff was not permitted to personally

interview Brooks, who lived in New Orleans, either there or at

Brockton. Based on telephone conversations with him, on an

30a

interview conducted by a V.A. official in New Orleans, and

the resume and papers which Brooks had submitted with his

application, plaintiff recommended him for the position. Both

Dr. Conlin and a position classification specialist added their

certifications on October 16, 1973.

Because of other obligations, Brooks did not report for duty

until February 1974. Plaintiff put him to work on the day of

his arrival and after close observation was obliged to recom-

mend the next day that he be removed. She had found on

meeting him personally that Brooks could not perform even

routine tests properly, and that he lacked the basic profes-

sional and supervisory skills his position demanded. Since

V.A. physicians relied on the incumbent of this position for in-

formation of the most vital importance, plaintiff felt that

Brooks would have to be removed promptly to prevent irrep-

arable injury to the lives and health of the hospital's patients.

At trial plaintiff testified that in her opinion Brooks’ negli-

gence and lack of knowledge subsequently resulted in the

death of at least two patients at Brockton. A check of his

background revealed that he had misrepresented his creden-

tials, and that he was not in fact qualified for the position as he

had stated in his application and supporting papers. At the re-

quest of top hospital officials, Brooks resigned in May 1974.

Dr. James E. Baker, Director at Brockton, was Dr. Conlin’s

superior during the time of the Early Brooks matter. It was

his testimony that he asked Mr. Brooks to stay to see if he could

perform the work. This was despite the misrepresentation by

Mr. Brooks of his credentials and his obvious lack of qualifica-

tions for the position. Dr. Conlin’s concern with plaintiff in

the Brooks matter was that she —

didn’t check him out until after he was aboard, and then

she wanted immediate action. Then, of course, you are

dealing now with a minority person, and I had a team

3la

come in frorn the Boston VA Hospital to evaluate his

credentials and performance such as they were.

Dr. Conlin assigned the entire blame for the Brooks matter

to plaintiff, citing it as an example of her administrative defi-

ciencies. In a discussion that took place on March 28, 1974,

Dr. Conlin remarked that “none of this would have happened

if you had done a proper job before you recommended the

gentleman for employment.” Dr. Conlin faulted plaintiff

mainly because she had failed to verify Brooks’ credentials

before recommending his employment. Both Dr. Baker and

Dr. Conlin complained that she had failed to give him the

orientation they felt he deserved, but both failed to indicate

how additional orientation would have led to a different re-

sult. The record shows that plaintiff shared hiring responsi-

bilities with the personnel service and with the United States

Civil Service Commission, and there is evidence that plaintiff

did not clearly understand in advance that it was her sole

responsibility to verify Brooks’ professional credentials.

A V.A. review team blamed plaintiff for failing to conduct a

face-to-face interview with Brooks prior to recommending

him. As earlier noved, she had been denied the funds to inter-

view him either at Brockton or New Orleans and there is no

way she could have interviewed him face-to-face except at her

expense. As above-stuted, a face-to-face interview was con-

ducted by a V.A. official in New Orleans.

At about the time of the Early Brooks matter, plaintiff's re-

quest for an authorized absence to attend at her own expense

the Nineteenth International Congress of the German Medical

Association for Continuing Medical Education in Badgastein,

Austria, was denied. Dr. Conlin and Dr. Baker appear to

32a

have been upset that they had previously approved plaintiff's

attendance at her own expense at an International Congress of

Neuropathology and Neurology in Barcelona, Spain. Despite

their prior approval, Dr. Conlin later described plaintiff's at-

tendance at the Barcelona conference as a “transparent device

to provide a tax deductible basis for transoceanic travel to in-

clude visiting a family member in Scotland.”

On April 8, 1974, there was a management review confer-

ence on the Service. Dr. Baker and his administrative assist-

ant, and the assistant hospital director, and Dr. Conlin met

with plaintiff. They conducted a “systematic internal

review.” Plaintiff submitted an annual report, and the other

participants pointed out problems in the Service and offered

suggestions on how best to deal with them. This type of

review is conducted routinely with every Chief of Service once

a year on a rotational basis, and without regard to whether a

Service Chief's performance is satisfactory or unsatisfactory.

Its review is in compliance with a different set of regulations

than those at issue in this case. At issue here are those regula-

tions governing proficiency ratings and personal counseling.

The management review conferences, on the other hand, in-

volve persons other than the Service Chief and supervisor, and

the review is of the overall Service.

Dr. Conlin’s notes of an April 11, 1974 meeting indicate

that, along with the routine business discussed, there arose an

accusation that plaintiff had made an unauthorized telephone

call to a Dr. Marjory Williams, a long-time acquaintance of

hers who worked at the V.A. Central Office in Washington,

D.C. Plaintiff had purportedly asked for advice in the Brooks

matter, and had complained that she was receiving no support

from management. At first she apparently said that she had

not made the call, but later admitted making it and termed it a

“personal, unofficial” call that did not require advance clear-

ance.

33a

The April 15, 1974 Proficiency Report

On April 15, 1974, Dr. Conlin prepared an annual profi-

ciency report evaluating plaintiffs performance during her

first year at Brockton. Section B of the report form listed

elements upon which the employee was to be rated. There

was a rating scale of 1 through 8 for each element. Dr. Conlin

assigned plaintiff a total numerical score of 52 points. To

achieve a “satisfactory” score, plaintiff had to receive at least

39 out of a possible maximum of 88 points. Her numerical

score was therefore technically “satisfactory.” The only other

classification was “unsatisfactory,” which applied to any

numerical score of 38 points or less. Based largely on what Dr.

Conlin had told him, Dr. Baker concurred in the numerical

score assigned to plaintiff.

Although plaintiff's score was technically within the range

of “satisfactory,” it was hardly an indication that her superiors

were satisfied with her performance. Dr. Conlin himself later

remarked that “based on a possible total score of 88 it is ob-

vious that 52 was not a desirable rating.” In fact, he would

later admit that, although he had completed an average of ap-

proximately 50 proficiency ratings a year during his years as a

V.A. supervisor, and although he had been evaluating em-

ployees for 7 years when he completed plaintiffs proficiency

rating of April 15, 1974, he had never before given anyone a

score of less than 60. His average scores in fact ranged from

the “upper-Sixties to the middle-seventies.” In response to an

interrogatory in this proceeding, Dr. Conlin commented that

he “felt constrained to keep her total score within the range of

‘Satisfactory’ since I still had hopes we could bring Dr. Bagin-

sky’s performance up to an acceptable level.”

Dr. Baker also testified that the “vast majority” of V.A. doc-

tors received scores ranging from 65 to 75. Daniel F. Ken-

nedy, Assistant Chief of the Personnel Service at Brockton,

34a

had reviewed all proficiency ratings completed at Brockton for

approximately 15 years. He testified that physicians scores

generally ranged “from the middle 60's to the middle 70's.

with a few in the higher ranges.” Dr. Rolf Baginsky, who as @

Chief of Service at the Bedford, Massachusetts, V-A. Medical

Center, had evaluated employees for approximately 18 years

testified that he had never seen a score of less than 65, nor

given a score of less than 70.

If the low numerical rating assigned by Dr. Conlin left any

doubts about plaintiff's marginal and precarious position, they

were removed by his narrative comments in section F of the

report form. He first noted that “[ajt no time” during plain-

tiffs tenure had daily operations in her section “been con-

ducted in @ smoothly running fashion.” Her main difficulty.

he continued, was with personnel selection and administra-

tion. He complained that plaintiff was “garrulous, verbose.

loquacious to @ point where verbal communication with her is

an ordeal and something less than effective. He added that

“[a}dministratively she does not yet measure up to Chief of

Service requirements, and “[p }rofessionally she seems at

times to be uncertain OF insecure and to need other opinion oF

backup excessively: His only positive comments were that

plaintiff was “said to be a good teacher” and had performed

well at clinical pathological conferences. Dr. Conlin conclud-

ed rather ominously that “(desire for her retention is con-

tingent upon 4 substantial improvement in her performance.

As noted earlier, based largely on what Dr. Conlin had told

him, Dr. Baker concurred with Dr. Conlin’s report.

As earlier stated, Dr. Conlin could have characterized

plaintiff's performance in only one of two ways, i.e., a either

“satisfactory OT “unsatisfactory: The rating report form

does not make provision for a supervisor to characterize an

employee's performance as “marginal, nor do V.A. regula-

tions in using that term define oF otherwise specify what

“marginal” means.

35a

In addition to assigning the scores and making the com-

ments already noted, Dr. Conlin evaluated plaintiff's capacity

for advancement in section D of the rating report form. On a

scale of 1 point to a maximum of 3 points, he placed plaintiff's

capacity for professional advancement at 2 points, and her

capacity for administrative advancement at 1 point.

The proficiency report contained the following question

which is directly relevant to the issues in this case: “Have the

strong and weak points rated under Section ‘B’ above been dis-

cussed with the individual at least 90 days in advance of this

report?” Next to this question, Dr. Conlin checked a box in-

dicating that the answer was “Yes.” However, it is beyond

dispute that plaintiff was not shown the report nor were the

“strong and weak points” rated in section “B” discussed with

her nor did she see the report either before or at the time it was

prepared and approved. On the contrary, the evidence clear-

ly shows that plaintiff did not see her proficiency report dated

April 15, 1974 until May 16, 1975 at the very earliest. This

date was 13 months after the proficiency report had been pre-

pared and only 3 days before plaintiff's removal. She testified

in fact that she did not see it until much later than May 16,

1975, namely, when it was produced in response to an FOIA

request on August 16, 1976.

Contrary to his notation of “Yes” in section “B” of the report

form, Dr. Conlin admits that he did not disclose its contents tu

plaintiff before its preparation in April 1974. Although he

states it was his policy to discuss a rating with an employee

during the 2-week period before the rating was to become ef-

fective, he clearly did not do so in this case. He attributed his

failure to do so to plaintiff's purported unavailability during

the first weeks of April. Plaintiffs testimony flatly contra-

dicted Dr. Conlin’s statement and, although Dr. Conlin had

declared that plaintiff's leave records would verify his conten-

tion, those records were never produced in this proceeding.

36a

The evidence further shows that Dr. Conlin himself, along

with others, attended the “systematic internal review of the

Service” on April 8 as earlier described and that he had a meet-

ing with her on April 11, 1974 to discuss the earlier described

telephone call to Dr. Williams in Washington. If plaintiff was

available to meet with Dr. Conlin on those two occasions, it is

obvious that she was not unavailable to meet with him nrivat-

ely to be shown her proficiency report and to afford him an

opportunity to discuss it with her prior to April 15, 1974.

Dr. Conlin met with plaintiff on April 22, 1974. It is ap-

parent that one of the purposes of the meeting was to discuss

plaintiff's proficiency rating with her. Nevertheless, Dr. Con-

lin did not show plaintiff a copy of the rating report at that

meeting, nor did he even have a copy of it himself. It is uncer-

tain whether the rating was discussed at all. Plaintiff left the

meeting unperturbed and unaware that her proficiency rating

even existed. In fact even though the report itself was nega-

tive in every practical respect, Dr. Conlin’s administrative

assistant testified that plaintiff appeared happy and thanked

Dr. Conlin as she left his office.

The evidence indicates that Dr. Conlin either did not dis-

cuss the proficiency report with plaintiff or discussed it in such

an incomplete manner that the discussion did not adequately

convey to plaintiff all the information she needed to under-

stand her supposed shortcomings and to improve her per-

formance thereafter. As a matter of fact, in a later memoran-

dum dated April 23, 1974, Dr. Conlin acknowledges the in-

adequacy of the discussion of the previous aay. He advises

37a

plaintiff in that memorandum that he will “discuss your Profi-

ciency Rating and other pertinent matters directly with you as

oon as I am under a bit less pressure than right now.” He did

not in fact subsequently discuss plaintiffs proficiency rating

with her at all.

In that memorandum to plaintiff of April 23, 1974, Dr.

Conlin also touched very briefly on a number of the problems

he had discussed with plaintiff during the prior year and con-

cluded that “I am not at all satisfied with the current status

administratively or professionally within your Service.” He

indicated that there would be a “review of various segments of

the Laboratory and of Mr. Brooks.”

Plaintiff thereafter responded in a memorandum of her own

dated May 17, 1974. In defending herself against Dr. Conlin’s

statements she urged him not to make judgments based on

“misunderstandings.” As an indication that she did not know

even then that her proficiency rating had already been pre-

pared or that it existed, she concluded with the statement

“(they [the misunderstandings] should not be the basis of my

Proficiency Rating you refer to in the last paragraph of the

subject memorandum.”

Subsequent Events

Subsequent events are not directly relevant to the issue here

on remand. The issue as set forth in the court's order of Octo-

ber 19, 1979 is “whether plaintiff was shown her proficiency

report dated April 15, 1974 at that time or given counselling as

the Manual requires.” Nevertheless, several documents subse-

quently prepared in jate 1974 and early 1975 in connection

38a

with her later removal shed light on the issue before us. They

confirm that plaintiff's supervisors had regarded her as a

marginal or unsatisfactory employee prior to the April 15,

1974 proficiency report.

On November 15, 1974, Dr. Baker sent the Veterans Ad-

ministration Central Office in Washington, D.C., a document

entitled “Proposed Separation fiom Employment of Susanna

Baginsky, M.D.[,] Chief, Laboratory Service.” It recounted

the above-cited complaints of Dr. Conlin concerning

plaintiff's performance during her first year at the hospital and

added a few that had arisen in the meantime but which are

not relevant here. The “Proposed Separation” noted in some

detail the doubts that had arisen before plaintiff was hired. It

commented that “[s]hortly after Dr. Baginsky’s arrival on duty

previous unrest on the Service increased to turmoil,” and

noted the retirement and departure of several Service employ-

ees. It referred to the Barcelona conference and noted that

when she asked for approval in the summer of 1973 to attend

the conference, she was informed that:

[The situation on her Service was not satisfactory, that

there was too much continuing turmoil and that our

laboratory's recently received approval could well be

placed in jeopardy unless there was substantial improve-

ment.

The Proposed Separation also recalled the October 23, 1973

discussion, as follows:

She was told of general dissatisfaction with her opera-

tions, the personnel situation, the general atmosphere of

uncertainty, vacillation and discontent. There was im-

mediate need to upgrade activities generally and to ride

closer herd on day to day activities.

39a

It went on to describe the situation as of January 21, 1974,

when Dr. Conlin’s administrative assistant interviewed

various laboratory employees:

Staff morale was low. There was concern over the three

retirements or resignations which were regarded as at-

tributable to Dr. Baginsky. There was lack of adminis-

trative ieadership and of coordination and direction.

There was refusal to make decisions, “to avoid upsetting

anybody.” Staff discussions were discouraged and there

were threats to “get” anyone who discusses problems or

presses for closure on issues.

The Proposed Separation also recounted plaintiffs purported

tardiness in making her administrative reports, the disap-

proval of her request to attend the Badgastein conference, and

the review of the Early Brooks matter in its early stages.

The April 15, 1974 proficiency report is specifically men-

tioned in the Proposed Separation. It noted that the report in-

dicated that plaintiff's strong and weak points had been dis-

cussed with her at least 90 days in advance. This statement is,

however, contrary to the record. The Proposed Separation

states that the discussion had taken place about 5 weeks before

the rating became effective. Apparently Dr. Baker read the

regulation requiring a discussion “at least 90 days in advance”

as meaning “within 90 days.” Most significantly, the Pro-

posed Separation also notes that “[t]he report itself was not

discussed directly with her.” (Emphasis supplied).

The Proposed Separation spoke of an April 25, 1974 team

review of the Early Brooks matter. The team, which had been

sent by the Boston V.A. Hospital, found obvious errors in a

report Brooks had prepared on unknown specimens. The

review states:

40a

The team agreed that although he seemed to qualify from

a reading of the Civil Service Commission material, he

should not have been hired on that basis alone without

face to face interview.

It is not mentioned, however, in the Proposed Separation that

budget constraints had made it impossible for plaintiff to con-

duct a “face to face interview” with Brooks either in New

Orleans or Brockton, and that she had been obliged to rely on

an interview conducted by a V.A. official in New Orleans.

The Proposed Separation also described the controversy over

plaintiff's unauthorized telephone call to Dr. Williams in

Washington. It further described events which took place be-

tween May anc November 1974, but which are not relevant

here.

On February 14, 1975, Dr. Conlin submitted a document

entitled “Items for Professional Standards Board Review Con-

cerning DR. SUSANNA BAGINSKY, Chief, Laboratory Serv-

ice.” It closely paralleled the Proposed Separation described

above. It went on to clarify some of the details of the April 15,

1974 proficiency report.

A numerical score of 52.0 was assigned with a rating of

“satisfactory.” However, based on a possible total score

of §8 it is obvious that 52 was not a desirable rating. /t is,

in fact, the lowest I had ever used, until then. The report

as filed was not discussed directly with Dr. Baginsky, but

it is evident from items above listed that various areas of

deticiency had been made known to her prior to the

report. [Emphasis supplied].

On March 12, 1975, Dr. Conlin prepared a memorandum

entitled “Comments on Various Items Presented to the Board

4la

or Referred to from Various Sources.” It was directed to the

Professional Standards Board which was considering the pro-

posed removal of plaintiff from her position. Dr. Conlin once

again acknowledged that plaintiff had not been shown a copy

of the April 15, 1974 proficiency report at the time that it was

prepared. He also referred to:

Item 41 on the Proficiency Report [which] asks “Have the

strong and weak points rated under Section B above been

discussed with the individual at least 90 days in advance

of this report?” This was marked “yes”, since at one time

or another within the proper time limits items covered

were discussed with her.

On May 19, 1975, plaintiff was removed from her position

as Chief of Laboratory Services at the Brockton Veterans Ad-

ministration Hospital.

Applicable Law and Regulations

The Administrator of the Veterans Administration is

authorized to appoint physicians and other personnel neces-

sary for the medical care of veterans. Appointments are to be

made without regard to civil service regulations, but they must

instead conform to regulations which the Administrator is re-

quired to promulgate.* Appointments are probationary for a

given period,‘ which was 3 years during the times relevant to

this case. During the probationary period a review board,

known as the “Professional Standards Board,” may remove a

238 U.S.C. § 4104.

238 U.S.C. § 4106(a).

+38 U.S.C. § 4106(b).

42a

probationary appointee who is found “not fully qualified and

satisfactory.”

In accordance with the relevant statutes, the Administrator

of the Veterans Administration has promulgated regulations

which have the force and effect of law.’ The pertinent regula-

tions in this case are found in Chapter 6 of the V.A. Manual,

MP-5, part II, and in Chapter 6 of the DM&S Supplement,

MP-5, part II. An introduction to the manual, MP-5, part II

states specifically that “(t]he provisions of this part are regu-

latory, no deviations, not expressly authorized herein, to be in-

dulged.”

Chapter 6 of the manual deals with the V.A.’s proficiency

rating system. As stated therein, proficiency ratings and the

procedures associated with them have several important pur-

poses. Among other things, they provide a basis for keeping

employees informed of what is expected of them in their as-

signments, and for letting them know the level of their per-

formance.* They also provide a basis for determining whether

probationary appointments .ould be made permanent and as

a basis for action in cases where service is unsatisfactory.’

Regular proficiency ratings must be made annually on the

anniversary date of employment unless delayed for reasons

specified within the regulations themselves.* An employee

must be notified in writing as to the reasons for delay if a delay

is contemplated.’ A proficiency report must characterize an

* See Lodge 2424 International Association of Machinists v. United States,

215 Ct. Cl. 125, 133, 564 F.2d 66 (1977).

* Manual, Ch. 6 at ©© 4a and b.

"Id. at ©© 4c. and g.

8Id. at € 7a. (1).

*Id. at © 7a. (2). A delay of the annual rating for as long as 90 days is per-

missible if an “unsatisfactory” rating is contemplated, and the employee has

not received the required counseling, or there has been a failure to meet other

procedural requirements.

43a

employee's performance as either “satisfactory” or “unsatisfac-

tory.”'° The regulations'! further state that:

The proficienoy rating systern will provide for continuous

counseling of employees by their supervisors as a regular

method of communication between them and as a princi-

pal and positive means of accomplishing purposes of the

program.

Chapter 6 of the DM&S Supplement, MP-5, part II, estab-

lishes the mechanics of the proficiency rating system. The

rating official determines the employee's rating on a specified

proficiency report form. The report must then be approvea

by an approving official who is the rating official’s superior.

After the rating has been approved the rating official must dis-

cuss the content and conclusions of the report with the

employee rated. It is specifically provided’? that:

Employees shall be permitted to view the approved profi-

ciency report in the company of the rating official, ap-

proving official, or other professional-administrative

supervisor having sufficient knowledge to discuss the rat-

ing with the employee.

Jd. at ©€ 7c. andd. A “satisfactory” rating results when the employee's

proficiency meets or exceeds minimum performance levels in all elements of a

given assignment, or when any inadequate proficiency or weak performance

in any element or elements is compensated by proficiency or performance

clearly exceeding minimum levels in other and more important aspects of the

assignment. Otherwise, an “unsatisfactory” rating is assigned. The profi-

ciency report is the basis for review by a Professional Standards Board

evaluating a Proposed Separation. These regulatory requirernents are also

contained in Ch. 6 of the DM&S Supplement, part II, at € 6.03c.

“Id. at € 8.

‘Id. at € 6.05a.

44a

The annual report is due on the anniversary date of employ-

ment. Employees must receive their first 2.1d subsequent rat-

ings within the 90 days prior to the due date of the report. '*

Counseling must ordinarily be conducted in connection

with the proficiency rating system at least once a year, and it is

particularly pertinent for employees “whose services have

been deficient in any important element.” '4

The counseling program contemplates that “[s]upervisors

will thoroughly review performance of their employees” and

that “[c]are will be exercised for those in their probationary

period.”'* The counseling is conducted in a so-called “coun-

seling conference,” which is informal and confidential and of

such nature as to inform each employee, orally or in writing,

of the manner in which the employee is performing or failing

to perform assigned duties.'*® Supervisors are expected to com-

mend strong qualities. They are also expected to discuss ob-

jectively an employee’s weak points and furnish suggestions

and advice for improvement.'’? On completion of the confer-

ence, the supervisor must make a written record of any weak

points discussed and suggestions offered for improvement.

This record must be “done by notation in sections F and/or G

of the proficiency report form.” '*

Dr. Conlin’s very negative comments in Section F have been

set forth earlier in these findings, but as stated above they were

not previously discussed with plaintiff in a counseling confer-

ence, nor was the proficiency report shown to her. Section G

provides a space for similar comments by the approving official,

'9]d. at € 6.05b.(1).

"Id. at © 6.06 a.

'S]d. at © 6.06 b.(1).

"Id. at © 6.06 c.(1).

"Id. at © 6.06 ¢.(2)

"Id. at € 6.06 ¢.(3).

45a

in this case Dr. Baker. Section G simply contains a note that

Dr. Baker concurs with Dr. Conlin’s comments and rating. If

the rating is satisfactory, the rating official must discuss the

employee's rating with the employee as soon as possible after

the approving official has returned the approved report, but

no later than the due date of the annual report. '*

The prescribed procedure is considerably different and

more exacting where an employee's performance is not ab-

solutely satisfactory. The regulations®® provide that in that

case:

A counseling conference will be conducted for marginal

or unsatisfactory employees not later than 90 days prior

to the due date of the annual report. [Emphasis sup-

plied).

[A failure to improve within 30 to 60 days will,] depend-

ing on the circumstances, * * * be cause for a second

counseling conference. [Emphasis supplied]. '?!'

After the second conference, the supervisor must prepare a

memorandum indicating the reasons for the conference, the

deficiencies at issue, and suggested solutions. The employee

must initial the memorandum, a copy of which is given to

him. If the employee still fails to show sufficient improve-

ment, an unsatisfactory rating is assigned to the employee. *

"Id. at € 6.06 d.

"Id. at $6.06 e.; see also € 6.05 c.(5).

" Id. at € 6.06 e.(2).

"Id. at € 6.06 e.(3). ee Se eee Se Sane gaa

report, with written notice to the employee. as described in note 9 supra, and

in € 6.06 f.

46a

OPINION

It is obvious from the record that throughout her tenure at

the hospital, plaintiff was regarded by her supervisor as a

marginal employee, at best. Within days of her initial

employment, Dr. Conlin advised her of his dissatisfaction with

her performance. ‘During her first year at Brockton, both Drs.

‘Conlin and Baker repeatedly told plaintiff that they were “dis-

satisfied” with the way she was doing her job, and they char-

acterized her performance as “unsatisfactory.” When Dr.

Conlin prepared plaintiffs proficiency report on April 15,

1974, he assigned plaintiff a numerical score of 52, which was

by any measure an unusually low and marginal score. It was

20 to 30 percent lower than the average scores assigned to the

vast majority of V.A. physicians, and represented a lower

score than Dr. Conlin or Dr. Rolf Baginsky had ever assigned

or even seen. Dr. Conlin’s narrative comments in section F of

the report were almost totally negative, and left no doubt that

in his opinion plaintiffs performance was far from satisfac-

tory. His concluding comment was that “[dJesire for [plain-

tiffs] retention is contingent upon substantial improvement in

her performance.” Dr. Baker concurred. Under these cir-

cumstances, plaintiffs performance could at best be char-

acterized as only marginal.

As a marginal employee, plaintiff was entitled to counseling

not later than 90 days before her proficiency rating became ef-

fective on April 15, 1974. There is no evidence that plaintiff

received counseling at any time during the month of January

1974. For that matter, between October 23, 1973 and March

28, 1974, there is no evidence that she was engaged in any

extended discussion with her superiors which could be regard-

ed as a counseling conference within the contemplation of the

regulations relating to proficiency reports.

47a

Moreover, plaintiff was not shown her annual proficiency

report nor was it discussed with her nor was she counseled

with respect to it on or about April 15, 1974 as the regulations

require. In fact, plaintiff did not see the report before May

16, 1975, at the earliest, and a preponderance of the evidence

supports a finding that she did not see it until August 16, 1976

in response to an FOIA request. Although plaintiff had

several informal discussions with Dr. Conlin and Dr. Baker in

the year ending April 15, 1974, these were not sufficient to

constitute the specific counseling conference contemplated by

the Veterans Administration regulations governing these pro-

cedures.

This is literally a case in which “the facts speak for them-

selves.” The relevant regulations are based on statutes and

clearly have the force and effect of law. They in fact provide

within the regulations themselves that no deviations from

them are permissible. Moreover, they highlight their own

importance in providing a basis for keeping employees in-

formed of what is expected of them, and for determining how

they are measuring up, and whether their probationary ap-

pointments will be made permanent.

In this case we also have the prior order of the court on Oc-

tober 19, 1979 emphasizing that the regulations are —

an important protection for the employee since it gives an

opportunity to improve his work and avoid dismissal dur-

ing the later part of the probationary period. * * * If the

plaintiff can sustain her allegations, the government has

violated its regulation.

™ See text at note 5 supra.

™ See text at notes 6 and 7 supra.

48a

* * * We conclude that there is a sufficient relationship

between the alleged violations in this case and the dismis-

sal to sustain plaintiff's cause of action. * * * The system

evidently is intended in part to provide employees with

an opportunity to correct any deficiencies in their per-

formance. The failure of plaintiff to correct her deficien-

cies directly led to her dismissal. Had she been properly

counselled and shown her poor proficiency report (and

we indicate no views here on that question), she might

have been able to improve her performance and avoid

dismissal.

Plaintiff has amply supported her allegations at trial. She

was not shown her first annual proficiency report due on April

15,1974. Although entitled to receive and to have it discussed

with her prior to that date, she did not in fact even see it until

at least 13 months later, and probably not before August 16,

1976. ; -

Moreover, a confidential counseling conference is required

in conjunction with any annual proficiency report, and it is

stated to be particularly important for employees “whose serv-

ices have been deficient in any important element.” No coun-

seling conference of the type contemplated by the regulations

was provided in this instance. **

In addition, a great deal more was required in the case of an

employee in plaintiffs position. There is overwhelming evi-

dence that she was regarded and treated throughout her em-

ployment as a “marginal” employee.** The regulations made

special provision for an employee who fit that description. In

referring to “marginal or unsatisfactory employees” (emphasis

* See text at notes 14-18 supra.

* See text at notes 20-2] supra.

49a

supplied), it is obvious that the regulations are describing a

level of performance which falls along the margin or border

dividing a clearly “satisfactory” from a clearly “unsatisfactory”

proficiency report. Otherwise the use of the words “marginal”

or “unsatisfactory” would be repetitive and meaningless.

“Marginal” clearly refers to an employee falling within the

low satisfactory range and on this record plaintiff just as clear-

ly fell within that range in the opinion of her supervisor. As

such she was entitled to special counseling no later than Janu-

ary 15, 1974,*’ and if she failed to improve within 30 to 60

days, as her supervisor obviously believed, a second counseling

cor’. »nce was indicated. This was to be followed by prep-

arai...i of a memorandum in which the supervisor set forth the

reasons for the conference, the deficiencies at issue, and sug-

gested solutions. The employee was then to initial the memo-

randum and be given a copy.

None of this was done. In fact, the regulations do not ap-

pear to have been followed in any material respect.

Lawfully prescribed regulations, rules and procedures is-

sued by a Government official or agency are binding upon the

Government as well as upon its citizens.** Where an agency

sets out prescribed procedures to govern its personnel matters,

it must adhere to those procedures and a defect therein renders

an adverse personnel action void ab initio.* Separations

made in a manner not conforming with the requirements of a

valid regulation are not lawful.

Plaintiff is entitled to recover monetary damages equal to

the compensation she would have received had she not been

*" That is, at least 90 days before the due date of her annual proficiency

report.

* Morton v. Ruiz, 415 U.S. 199, 235 (1974); Whelan v. United States, 208

Ct. Cl. 688, 694, 529 F.2d 1000 (1976).

* Jones v. United States, 203 Ct. Cl. 544, 550 (1974).

* Fletcher v. United States, 183 Ct. Cl. 1, 8; 392 F.2d 266 (1968).

50a

terminated, and judgment is entered to that effect.*' The

amount of recovery is reserved for further proceedings under

Rule 13l(c). In addition, to provide an entire remedy and to

complete the relief afforded by this judgment, it is ordered

that plaintiff be restored to her position and that applicable

records be corrected to reflect this judgment and order.*

FINDINGS OF FACT

Introduction

1. Plaintiff Susanna Baginsky, a physician specializing in

pathology, was the Chief of Laboratory Services at the Brock-

ton, Massachusetts, Veterans Administration Hospital from

April 15, 1973, until her removal from that position on May

19, 1975. In this action she seeks reinstatement to her former

position, back pay, and related relief.

2. Plaintiff's amended petition sets forth three counts. The

first alleges a violation by the Veterans Administration of the

requirements in its own Personnel Regulations Manual. Pur-

suant to the manual, plaintiff's supervisor, the hospital's Chief

of Staff, prepared an annual proficiency report with respect to

plaintiff dated April 15, 1974. As stated by the court in its

prior order of October 19, 1979:

>! See and cf. Power v. United States, 209 Ct. Cl. 126, 531 F.2d 505 (1976)

and 210 Ct. Cl. 742 (1976); Ainsworth v. United States, 180 Ct. Cl. 166

(1967); Urbina v. United States, 180 Ct. Cl. 194 (1967); Greenway v. United

States, 163 Ct. C!. 72, 175 F.2d 330 (1963); Mayer v. United States, 145 Ct.

Cl. 181 (1959); and Newman v. United States, 143 Ct. Cl. 784 (1958).

8 See 28 U.S.C. § 1491, as amended Aug. 29, 1972, Pub. L. 92-415, § 1,

86 Stat. 652.

5la

The report gave plaintiff a marginally satisfactory rating

and noted, “Desire for her retention is contingent upon a

substantial improvement in her performance.”

Plaintiff's first count cites the manual which requires that the

April 15, 1974 proficiency report be shown to and discussed

with the employee, and alleges that the report was neither

shown to nor discussed with her. This count further cites the

manual as mandating special counseling for a “marginal” em-

ployee, and alleges that the required counseling was not pro-

vided.

3. The second count contends that thereafter plaintiff was

denied due process in violation of the United States Constitu-

tion by a Professional Standards Board convened on March 7,

1975. The board concluded in a report dated April 2, 1975

that her performance was unsatisfactory. Plaintiff alleges that

the board heard highly prejudicial and false charges which

were never disclosed to her.

4. In the third count, piai:.tiff maintains that there was no

substantial nor rational basis Sur her discharge.

5. Defendant moved for dismissal or for summary judg-

ment, and the motion was denied by the court (except as to

Count IIJ) in the aforementioned order and opinion of Octo-

ber 19, 1979. With respect to Count I, the court found:

Paragraph 6.05 of the DM&S Supplement * * * provided

that before the end of an employee’s first year of employ-

ment “the rating official will discuss the content and con-

» clusions of the report with the employee he has rated.

Employees shall be permitted to view the approved profi-

ciency report in the company of the rating official, ap-

proving official, or other profes-ional-administrative

supervisor having sufficient knowledge to discuss the rat-

52a

ing with the employee.” If a marginal or unsatisfactory

report was contemplated, the provision further required

a counseling conference not later than 90 days prior to the

due date of the annual report. * * *

* * * This is an important protection for the employee

since it gives an opportunity to improve his work and

avoid dismissal during the later part of the probationary

period. * * * If the plaintiff can sustain her allegations,

the government has violated its regulation. * * *

We conclude that there is a sufficient relationship be-

tween the alleged violation in this case and the dismissal

to sustain plaintiffs cause of action. The Manual at

paragraph 4 of chapter 6 indicates that the purposes of

the proficiency rating system include providing a basis for

informing employees of their expected performance and

advising them of the calibre of their work. The system

evidently is intended in part to provide employees with

an opportunity to correct any deficiencies in their per-

formance. The failure of plaintiff to correct her deficien-

cies directly led to her dismissal. Had she been properly

counseled and shown her poor proficiency report (and we

indicate no views here on that question), she might have

been able to improve her performance and avoid dismis-

sal.

A remand to the Trial Division is therefore necessary to

determine whether plaintiff was shown her proficiency

report dated April 15, 1974 at that time or given counsel-

ling as the Manual requires.

6. With respect to Count II, the court also found it neces-

sary to remand, stating that it would be inappropriate to de-

cide this issue without further development of the facts,

including all of the information that was before the board.

53a

7. At a pretrial conference of December 4, 1980 it was

pointed out that if plaintiff prevailed on either Count I or

Count II, it would be dispositive of the case. It was further

pointed out that the issues raised by Count I could be resolved

after a short trial, not exceeding 1 or 2 days, with a minimum

of testimony and documentary material, whereas trial of

Count II on Constitutional grounds would require a much

greater quantity of testimony and documentary evidence. It

was therefore suggested that Count I be tried first, but

without prejudice to a later trial of Count II, if required. This

suggestion was adopted.

8. The issue at this phase of the proceeding is, therefore,

whether plaintiff was shown her April 15, 1974 proficiency

report at the time of its preparation and given the counseling

required by the applicable regulations of the Veterans Admin-

istration.

9. As noted above in finding 2, the aforementioned court

order of October 19, 1979 refers to the annual proficiency

report of April 15, 1974 as a “marginally satisfactory rating,”

and further cites the regulations as requiring a counseling con-

ference not later than 90 days prior to the due date of the an-

nual report if “a marginal or unsatisfactory report was con-

templated.” The proficiency report is elsewhere referred to in

the court’s order as “poor.” Defendant nevertheless urged at

trial that it was not a marginal or poor proficiency report and

therefore the regulations did not require the counseling con-

ference. It will therefore be necessary to explore the relation-

ship which existed between plaintiff and her supervisor during

the period of her employment, and to examine into whether

she was regarded by her supervisor as marginal.

Plaintiff's Professional Background

10. Plaintiff was born in 1912 in what was then a portion of

the Austro-Hungarian Empire. She studied medicine and re-

54a

ceived her medical degree from the University of Prague in

1938. After practicing medicine continuously in Prague until

1946, she immigrated to this country, and thereafter became a

citizen of the United States.

ll. Plaintiff continued the practice of medicine in this

country and was permanently licensed in Massachusetts, New

York, and Connecticut. At the time of the events at issue, she

was board certified in anatomic pathology and she has since

become board certified in clinical pathology.

12. Between 1946 and 1973, when she was employed at the

Brockton V.A. Hospital, plaintiff was continually in medical

practice, in residency or in training. Immediately prior to her

employment at the hospital, ‘plaintiff had been Chief of

Laboratory Services at a hospital in Norwich, Connecticut, a

job she left voluntarily because of the difficulty in commuting

from her home in Massachusetts. During her several periods

of residency, plaintiff also worked for a total of 5 years in other

Veterans Administration hospitals. At the time of trial, her

husband Rolf, also a physician, had been for a number of years

a chief of service at the Bedford, Massachusetts Veterans Ad-

ministration Medical Center.

Plaintiff's Employment at Brockton V.A. Hospital

13. In early 1973 Dr. John F. Conlin, Chief of Staff at the

Brockton, Massachusetts Veterans Administration Hospital,

met plaintiff and interviewed her for the position of Chief of

Laboratory Services. Dr. Conlin died prior to trial of this case

and his pretrial testimony has been preserved in a deposition.

A number of his papers are contained in other exhibits admit-

ted into evidence. Dr. Conlin states that plaintiff, who was

accompanied by her husband Rolf, was late for her initial in-

terview, that he found her an extremely difficult person to in-

terview, and that he felt that she was not as directly responsive

55a

to his questions as he would have liked. He was surprised

when plaintiff strongly objected to his seeking information

about her from her most recent employer. Dr. Conlin never-

theless felt that, on balance, plaintiff would be suitable for the

position of Chief of Laboratory Services.

14. Dr. Conlin forwarded this information on plaintiff

through customary channels for approval of her appointment.

Among the persons whose approval was required was a Dr.

William S. Maloney, a member of a Deans’ Committee set up

by area medical schools with which the hospital v as affiliated.

Dr. Maloney took issue with the proposed appointment and

noted that, according to his sources, plaintiff did not have

qualifications for the level of responsibility required of a chief

of service. However, when other doctors provided favorable

recommendations supporting plaintiff, Dr. Maloney with-

drew his objection to her appointment and returned her

papers with his approval.

Dr. Conlin’s Opinion of Plaintiff

15. Dr. Conlin had initial misgivings about plaintiff as evi-

denced in a letter which he drafted in April 1973, but never

sent to her. In the draft, he expressed his displeasure at her

tardiness for the initial interview and at her objection to his

obtaining information about her from her previous employer.

At the bottom of the unsent letter he added the following

parenthetical note to himself: ‘(I’m being had!).”

16. In his deposition Dr. Conlin explained that he had writ-

ten the unsent letter because of his impression that he was deal-

ing with “a tremendous verbal push, an extremely difficult per-

son to discuss with, to keep to an agenda.” Although he did not

mention it in his letter, he had also been disturbed by plaintiff's

vigorous and forceful refusal to tour the laboratory and meet

her potential co-workers following her initial interview.

56a

17. Plaintiff received a probationary appointment as Chief

of Laboratory Services and was instructed to report for duty

on April 15, 1973, which she did. She declined to submit to

the 2 to 5 days of orientation which her supervisor had

planned for her and as soon as routine personnel and payroll

processing had taken place, Dr. Baginsky went to the labora-

tory and began to work.

18. When plaintiff assumed her responsibilities.as Chief of

Laboratory Services at Brockton (hereinafter “Service”) she

faced what Dr. Conlin acknowledged were some “difficult

situations.” The previous chief had become pregnant and re-

signed her position. The lengthy vacancy had created an ad-

ministrative gap. The laboratory staff was divided into feud-

ing groups, and various members of the staff were not on

speaking terms with other staff members. Several key employ-

ees had been considering retirement within the next 12 to 18

months. To make matters worse, the laboratory needed sub-

stantial improvement if it was to retain its accreditation.

19. Dr. Conlin stated in his deposition that plaintiff had an

outspoken and direct manner. In his view this caused her to

alienate some members of her staff. According to him, one of

the earliest and most substantial sources of friction between

plaintiff and her staff was her interest in hiring medical “tech-

nologists,” college graduates with training to perform work in

the laboratory. This was her suggestion for upgrading the

quality of the Service. At that time most of the work in ques-

tion was performed by “bench-trained technicians” who had

gained their expertise by performing the work rather than by

attending programs that would have qualified them to become

technologists. In Dr. Conlin’s view, the technicians feared

that technologists would eventually replace them and they felt

considerable antipathy toward plaintiff for suggesting that

technologists be employed. There is, in fact, no convincing

evidence that plaintiff intended to force technicians out of

57a

their jobs in order to make room for technologists, nor to hire

only technologists in the future. It appears that she wanted

only to add one or more technologists to the staff in order to

upgrade the laboratory over a period of time.

20. Dr. Conlin’s reservations concerning plaintiff were so

strong at this point that on April 23, 1973 he reviewed the un-

sent letter earlier mentioned and below the phrase “(I’m being

had!),” he added another note: “(I’ve been had — Bill

Maloney was right!).” (Emphasis in original).

21. On April 26, 1973, Dr. Conlin spoke with plaintiff

about personality clashes within her Service and suggested

that she delegate some of her authority to an experienced staff

member who would act as a “coordinator.” He also stated his

opposition to her suggestion to hire technologists, and ex-

pressed his worry that plaintiffs suggestion would alienate

technicians who had been with the Service for some time.

Finally, Dr. Conlin indicated that plaintiff had caused con-

flict with the Chief of Surgery and with the people i+ the per-

sonnel service, and he advised her to “[e]ase off” on them.

22. There is scant evidence regarding plaintiffs perfor-n-

ance from April until October 1973. Dr. Conlin’s only extend-

ed discussion with plaintiff during this time took place on

August 28, 1973. He took notes during the discussion. Fol-

lowing a recitation of routine business, Dr. Conlin’s notes con-

clude with these cryptic comments: “ — Told situation

generally unsat & too much turmoil — Approval in jeopardy

unless square away — (specifics) —.”

23. Dr. Conlin’s next extended discussion with plaintiff

took place on October 23, 1973. His notes of that meeting

reflect a growing dissatisfaction with plaintiff's performance

as a Service Chief. They show that there was a “[g]eneral dis-

cussion of unsatisf. operations.” They indicate his belief that

plaintiff showed distrust of several of her staff members and

that several staff members were “gone” or “going.” This re-

58a

ferred to the decision of several to retire or transfer from the

Service, moves that Dr. Conlin attributed to plaintiff's “har-

assment” of her personnel and, apparently, to the “general at-

mosphere of uncertainty and of discontent” that he felt pre-

vailed within the Service. The fact is that key employees were

eligible to retire on the

This text is long and has been trimmed here. Open the source document for the complete record.