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January 5, 1996

GREGORY GREGOR, M.D., Plaintiff,
EDWARD J. DERWINSKI, et al., Defendants.

The opinion of the court was delivered by: LARIMER

 Plaintiff, Gregory Gregor, M.D., commenced this action on November 12, 1991, against four defendants: the Department of Veterans' Affairs ("VA"); Edward J. Derwinski, the Secretary of the VA; Savita Puri, M.D., both individually and in her capacity as Chief of Staff at the VA Medical Center in Batavia, New York; and William H. Manley, both individually and in his capacity as Director of the Batavia VA Medical Center. Plaintiff seeks damages and equitable relief based on certain actions allegedly taken by defendants in connection with plaintiff's employment at the VA Rochester Outpatient Clinic ("ROPC" or "Clinic").

 Plaintiff has moved to amend the complaint, to conform the pleadings to the proof, and for partial summary judgment. Defendants have moved to: dismiss the claims against defendants Puri and Manley; strike plaintiff's demands for a jury trial, compensatory and punitive damages, and attorney's fees; and dismiss the second cause of action on the ground that it fails to state a claim upon which relief can be granted.


 The complaint alleges that plaintiff, a physician, began working part-time at the VA Medical Center in Batavia in 1986, and that in December 1987 he was appointed to the position of Chief Medical Officer ("CMO") at the ROPC. Plaintiff alleges that he began having problems with defendant Puri, his immediate supervisor at the ROPC. In particular, the complaint alleges that Puri urged plaintiff to try to replace the older physicians at the Clinic with younger ones, and that plaintiff refused. Plaintiff asserts that Puri, angered by plaintiff's refusal, retaliated against him in various ways, such as by making unfounded criticisms of plaintiff's work. The complaint alleges that defendant Manley, who was Puri's supervisor, in concert with Puri, also falsely accused plaintiff of falsifying time cards on one occasion in 1991.

 Plaintiff alleges that in September 1991, Puri gave him a false, unsatisfactory Proficiency Report, and at the same time advised plaintiff that plaintiff was being removed from his position as CMO and that he would be sent to the Batavia Medical Center for some unspecified duties. The complaint states that plaintiff "demanded his full reinstatement," but that defendants refused. Complaint P 25.

 Plaintiff contends that as a result of these actions, he became ill, and that in October 1991 his doctor placed him on medical leave. He alleges that defendants continued to harass him by demanding detailed information about his condition and threatening to put him on "absence without leave" status. Plaintiff has not returned to work since October 1991.

 The complaint contains two causes of action. The first asserts a claim under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. Plaintiff contends that he was removed from his position at the ROPC because of his age (which was 57 in September 1991), and because he had opposed Puri's demands that he discriminate against other older physicians at the clinic.

 In the second cause of action, plaintiff alleges that defendants violated his rights under the Veterans' Affairs Labor Relations Improvement Act, 38 U.S.C. §§ 7421 et seq., and VA personnel policies. He contends that these statutes and policies guarantee him certain procedural rights with respect to such matters as performance evaluations and adverse actions, and that defendants have denied him those rights.

 Based on these claims, the complaint requests the following relief: a declaratory judgment that defendants' actions are unlawful; injunctive relief prohibiting defendants from violating plaintiff's rights, and reinstating plaintiff to the position that he would hold had it not been for defendants' actions; back and front pay and benefits; $ 1 million compensatory damages; punitive damages; and costs and attorney's fees.

 Plaintiff's motion for summary judgment seeks summary judgment on his "claims that the defendants violated federal statutes and their own policies, rules and regulations implementing those statutes when they removed him from his position" as CMO. Plaintiff's Motion for Partial Summary Judgment at 1. In effect, then, plaintiff is seeking summary judgment on the current second cause of action.

 Defendants move to dismiss the ADEA action against Puri and Manley on the ground that individual supervisors are not proper defendants in an ADEA action by a federal employee. Defendants also contend that since the allegations of the complaint relate only to actions taken by Puri and Manley in their official capacities, the second cause of action should be dismissed insofar as it is brought against Puri and Manley in their individual capacities.

 Defendants also move for an order striking plaintiff's demand for a jury trial on the ground that there is no right to a jury trial in an ADEA action by a federal employee or under Title 38. Defendants also contend that compensatory and punitive damages and attorney's fees are not available in this action.

 Defendants further ask that the second cause of action be dismissed. Defendants contend that the disciplinary procedures contained in 38 U.S.C. §§ 7461-7464 do not apply to plaintiff under the terms of the Veterans' Affairs Labor Relations Improvement Act.


 I. Constitutional Claims

 Defendants oppose plaintiff's motion to add claims under the Constitution. Defendants rely principally upon Bush v. Lucas, 462 U.S. 367, 76 L. Ed. 2d 648, 103 S. Ct. 2404 (1982), in which the Supreme Court held that a federal employee cannot bring a civil rights action for damages against a government official where the employment relationship is governed by a comprehensive scheme that provides meaningful remedies for employees who have been unfairly disciplined. Defendants contend that such a scheme exists in this case under Title 38 and VA regulations, and that plaintiff has failed to utilize it.

 Plaintiff contends that Bush should not bar his constitutional claims for two reasons. First, plaintiff notes that Bush dealt with an employee whose employment was governed by the Civil Service Reform Act ("CSRA"), whereas plaintiff is subject to different statutes applicable to VA employees. Second, plaintiff contends that defendants prevented him from utilizing whatever procedures would otherwise have been available to him by not informing him of his rights, and that any requests for administrative review would have been futile because of defendants' hostility toward him.

 The fact that VA procedures governing employee discipline, grievances, and the like are not the same as those under the CSRA is not in itself dispositive of whether Bush applies to this case. Although the facts in Bush did involve an employee covered by the CSRA, the Court's reasoning addressed the general issue of "whether an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, should be augmented by the creation of a new judicial remedy for the constitutional violation at issue." Bush, 462 U.S. at 388. The Court answered that question in the negative, holding that the existence of a comprehensive administrative remedial scheme precluded a "Bivens " action for damages directly under the Constitution. *fn1"

 Several Courts of Appeals have addressed the applicability of Bush to claims by VA employees, and have found that the administrative remedial procedures in Title 38 and VA regulations bar a Bivens-type action. Some of these courts have also stated that while the VA administrative scheme is not as comprehensive as that under the CSRA, that is due to a deliberate policy choice by Congress, and it does not preclude application of Bush to VA cases.

 In Heaney v. United States Veterans Admin., 756 F.2d 1215 (5th Cir. 1985), for example, which involved a VA physician whose surgical privileges had been revoked, the court, after summarizing the disciplinary process established pursuant to 38 U.S.C. § 4110 (the predecessor to the current disciplinary provisions in § 7461 et seq.), stated that the VA rules "were specifically designed to offer less protection than the CSRA." Id. at 1218. Noting, however, that "Congress 'wanted to give the [Veterans] Administration authority to employ or discharge without the usual time consuming and detailed service procedures,'" the court stated that "to allow a nonstatutory remedy here would have some effect tending to upset the balance between the interests of maintaining quality medical personnel and the protection of constitutional rights struck by Congress in creating the DMS." *fn2" Id. at 1219 (quoting Orloff v. Cleland, 708 F.2d 372 (9th Cir. 1983)).

 Rejecting the plaintiff's argument that Bush was limited to civil service employees, the court said that

we believe that Bush's review of the history and details of the CSRA is best read to point out that Congress is capable of constructing an appropriate system of employee redress, more capable than are the courts. ... Congress has chosen to exercise its special expertise and prerogative by providing a less protective system for Veterans Administration medical personnel than for ordinary civil servants, and that is precisely the kind of decision that Bush acknowledges the legislature is in the better position to make than are the courts.

 756 F.2d at 1222 n. 3.

 The Tenth Circuit followed the reasoning of Heaney in Franks v. Nimmo, 796 F.2d 1230 (10th Cir. 1986), in which a VA physician asserted constitutional claims against VA officials, alleging that they had improperly treated him as a probationary employee in conducting termination procedures, or in the alternative that they had failed to follow the proper procedures for termination of probationary employees. He sought damages for alleged deprivation of his rights to due process and free speech.

 Affirming summary judgment in favor of the defendants, the court held that "the implied cause of action Dr. Franks seeks to assert is barred by the rationale applied in Bush." Id. at 1238. The court rejected the plaintiff's argument that Bush should not apply because he was not a civil service employee, stating that "this argument is unpersuasive in view of the administrative procedures that Congress has provided to these [VA] employees, and the Court's conclusion in Bush that the administrative remedy need not fully compensate the employee to be exclusive." Id. at 1239.

 The Ninth Circuit reached a similar conclusion in Berry v. Hollander, 925 F.2d 311 (9th Cir. 1991), in which a VA pathologist alleged that the defendant VA employees had denied him his due process and free-speech rights in an alleged conspiracy to drive him from his job. The plaintiff contended that because the defendants' actions did not take place during a statutorily-authorized dismissal proceeding, where the alleged wrongs might have been remedied in the course of routine review, he had no administrative remedy, and therefore Bush did not apply to bar his claims.

although these remedies do not guarantee full and independent compensation for constitutional violations suffered by a VA physician, they do indicate a congressionally-authorized and comprehensive remedial scheme sufficient to preclude additional forms of relief. "Where Congress has designed a program that provides what it considers adequate remedial mechanisms for constitutional violations, Bivens actions should not be implied." To ...

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