Beam, Colonel Niles approved a promotion for DiLuigi from Grade 9, Step 2 to Grade 10, Step 3. Said promotion became effective February 1, 1976, and thereafter DiLuigi received a salary at an annual rate of $12,585.00. (Undisputed)
29. The promotion was signed, in the absence of Captain Edgar, by Major Schnellbecher. (Undisputed)
30. This initial "grade" promotion during the probationary period, unlike the "step" increase, is not automatic under applicable regulations; however, as a matter of practice it is usually granted. (Undisputed)
31. During the ninth or tenth month of an employee's probationary period it is required by Technician Personnel Pamphlet 902 that every probationary employee be evaluated and that a recommendation be submitted through supervisory channels on National Guard Bureau (NGB) Form 2, as to whether that employee should be retained beyond his trial period of employment.
32. On March 23, 1976, during the ninth month of Plaintiff's employment, Captain Edgar exhibited to Mr. DiLuigi a copy of his NGB Form 2 (Exhibit P-8) recommending that Mr. DiLuigi be separated from the federal service for the reason shown on an attachment thereto. (Exhibit P-9).
33. The Plaintiff's Flight Facility Commander, Colonel Hanna, personally observed the Plaintiff's conduct involving other people on one occasion.
34. As a member of the Recreation Fund Committee, DiLuigi was assigned the job of looking into the profitability and quality of the food provided by vending machine companies to the AASF.
35. At a meeting of the AASF Recreation Fund Committee, Colonel Hanna and Co Ven Co., the vendor in question, DiLuigi stated with some heat he did not like the vendor's food service and that the food gave him "the shits".
36. Colonel Hanna mildly rebuked the Plaintiff by telling him something to the effect that his agitated and accusatory manner was not helping the discussions with the vending machine representatives.
37. Colonel Hanna appreciated the efforts made by the Plaintiff in exploring the Facility's concession with the vending company, Co Ven Co, as evidenced by the fact that on March 1, 1976, Colonel Hanna, in a meeting, publicly complimented the Plaintiff for said efforts.
38. The meeting on March 23, 1976 between Captain Edgar and Mr. DiLuigi during which Mr. DiLuigi's non-retention was discussed lasted about 30 minutes.
39. During the interim between this March 23, 1976 meeting with Captain Edgar and March 26, 1976, Mr. DiLuigi met with Colonel Hanna on at least four different occasions for the sole purpose of discussing his termination.
40. While some of these meetings were relatively brief, at least two of the meetings, scheduled by appointment, lasted the better part of an hour. (Undisputed)
41. These four meetings were always attended by Colonel Hanna and Mr. DiLuigi. The meetings were also attended variously by Mr. Tom Conway, the Plaintiff's selected representative, Captain Edgar, and on one occasion Warrant Officer Warren.
42. DiLuigi requested the initial meeting with Colonel Hanna. Thereafter, Colonel Hanna asked the Plaintiff to return for another meeting or meetings in order to conclude their discussion and so that Colonel Hanna could inform DiLuigi of his decision.
43. During each of these meetings, Mr. DiLuigi, his representative, Mr. Conway, or both, discussed the recommendation made by Captain Edgar.
44. Mr. Conway was a shop steward of the Association of Civilian Technicians. (Undisputed)
45. The Association of Civilian Technicians is a labor organization representing civilian technicians in the Pennsylvania National Guard. Throughout the course of DiLuigi's employment, no labor agreement between the Union and the Pennsylvania National Guard existed. (Undisputed)
46. On at least one occasion, Mr. DiLuigi asked Colonel Hanna whose decision it was to act upon Captain Edgar's recommendation and whether the incident with the Co Ven Co. representatives would have anything to do with Colonel Hanna's decision.
47. Colonel Hanna informed the Plaintiff that the Co Ven Co. incident would by no means control but that it might affect his (Colonel Hanna's) decision on Captain Edgar's recommendation.
48. Colonel Hanna further informed the Plaintiff that he (Colonel Hanna) had not discussed the Co Ven Co. incident with Captain Edgar prior to the Captain's recommendation on March 23, 1976, and that he did not believe that Captain Edgar was otherwise aware of that incident prior to March 23.
49. Captain Edgar had no official or unofficial relationship with Co Ven Co. before or during Plaintiff's employment as a probationary technician.
50. At the conclusion of the last meeting on March 24, 1976, Colonel Hanna informed the Plaintiff that he would make his decision on Captain Edgar's recommendation on the following day. (Undisputed)
51. At the conclusion of the second of two meetings on March 25, 1976, Colonel Hanna announced his decision to the Plaintiff and his representative, Mr. Conway, that he was going to approve and forward Captain Edgar's recommendation to the Pennsylvania National Guard Technician Personnel Officer, Colonel Niles. (Undisputed)
52. On March 29, 1976, the Plaintiff was given his formal notice that he would be terminated effective April 30, 1976.
53. Although Plaintiff signed on March 23, 1976 a copy of NGB 2, Technician Performance Rating, in which Captain Edgar had recommended his separation from the federal service, he received no copy thereof until Colonel Hanna had signed it under date of March 25, 1976.
54. The Technician Performance Rating Sheet contained the following reason for DiLuigi's proposed termination:
"The Technician's conduct and general character traits are such that retention in Federal service is not recommended."
55. Plaintiff and his representative agreed that during the interim between March 23, 1976 and the effective date of termination, April 30, 1976, Mr. Conway would conduct all administrative inquiries and efforts to overturn the recommendation relating to the Plaintiff's non-retention. (Undisputed)
56. On several occasions Mr. Conway approached the individuals on Mr. DiLuigi's chain of command and on the Pennsylvania National Guard staff regarding Mr. DiLuigi. Pursuant to his agreement with Mr. Conway, Mr. DiLuigi at no time after March 26, 1976, personally disputed or otherwise raised the question of his termination with the Technician Personnel Officers until five days after the termination became effective. (Undisputed)
57. Contained in both TPP 904, as well as the Technician Personnel Manual 700/735, are disciplinary and adverse action regulations.
58. At no time was DiLuigi given a written statement setting forth the facts upon which Captain Edgar and Colonel Hanna based their decision to recommend non-retention.
59. Captain Edgar orally advised Mr. DiLuigi on March 23, 1976 of the facts upon which he based his decision to recommend non-retention.
60. On March 24, 1976, Colonel Hanna orally advised DiLuigi of the facts which he would consider in reaching his decision as to whether to recommend retention or non-retention of DiLuigi.
61. On March 25, 1976, Colonel Hanna orally advised DiLuigi that he was going to recommend DiLuigi's termination from the service.
62. DiLuigi was discourteous to Captain Edgar on several occasions in the presence of other personnel at the base prior to March 23, 1976.
63. Mr. DiLuigi's public statements on at least two occasions included challenges to Captain Edgar's authority.
64. At the meetings between Colonel Hanna and DiLuigi, DiLuigi was given an opportunity to make statements with respect to the reasons theretofore given to him for his termination.
65. Neither the notice of non-retention nor the notice of termination apprised DiLuigi that he had any right to reply to the termination action.
66. The termination notice was as follows:
"1. Under the provisions of paragraph 3-7, Technician Personnel Pamphlet 904, dated 25 May 72, be advised that your Technician employment will be terminated effective 30 April 1976 by reason of Unsatisfactory Performance during trial period.
"2. Your demonstrated ability to cope with certain responsibilities inherent with your position are unacceptable as stated in your probationary trial period appraisal. Further, your ability to grasp and maintain basic fundamentals required of your position do not meet required standards.