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SIMMONS v. DIDARIO

April 14, 1992

JOHN W. SIMMONS, M.D.
v.
ALBERT R. DIDARIO, et al.



The opinion of the court was delivered by: BY THE COURT; STEWART DALZELL

 Dalzell, J.

 April 14, 1992

 This Kafkaesque case involves a United States Air Force colonel who returned from service in Operation Desert Storm to find that he was suspended without pay at his civilian job because of charges that, to this day, have never been made against him. Rather than defend his innocence against these unknown, and later unmade, charges, Dr. John W. Simmons brought this action against his former employer, pursuant to the Veteran's Reemployment Rights Act, 38 U.S.C. § 2021, et seq.

 Congress specifically conferred jurisdiction on the district courts to entertain such actions under 38 U.S.C. § 2022. We also have subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

 After a two-day non-jury trial, we on April 10 stated in open court our findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a). This Memorandum will amplify and supplement those Rule 52 findings and conclusions.

 John W. Simmons, M.D., is a citizen of the United States and a licensed medical doctor. At all relevant times, he was a member of the Reserves of the United States Armed Forces. In 1990, Dr. Simmons, then 57 years old, was the highest ranking Air Force Officer at the Willow Grove, Pennsylvania, Air Reserve Facility.

 Dr. Simmons's Pre-War Civilian Employment

 Dr. Simmons has been an employee of the Commonwealth of Pennsylvania since 1968 and, since October 11, 1989, has served as Acting Director of Medical Services at Norristown State Hospital. Norristown State Hospital is operated under the auspices of the Department of Public Welfare of the Commonwealth of Pennsylvania.

 Dr. Simmons's work as Acting Medical Director and, prior to that, as Assistant Medical Director has always been exemplary. For example, Dr. Simmons's last Performance Evaluation Summary Report (Exhibit P-17), which defendant Albert R. DiDario, the hospital's Superintendent, signed on August 31, 1990, rated Dr. Simmons as exceeding standards in planning and directing, as well as in the quality and quantity of his work. It is worth noting that, in the narrative of the "quality" section of this performance appraisal, the comments addressed to Dr. Simmons state:

 The quality of your work is exceptionally good. You keep current thru frequent CME [Continuing Medical Education] sessions, share your knowledge with your staff at department meetings and are respected for your knowledge and skill as a physician-administrator.

 The "quantity" section of the appraisal, which also states that Dr. Simmons "exceeds standards", goes on to say:

 Your production is also excellent. You are a self-starter, display initiative, yet at the same time are a team player, keep your supervisor informed. You are willing to put in what time it takes to get the job done.

 The Medical Director who preceded Dr. Simmons at Norristown State Hospital was Bruce Edward Carlson, M.D., whose testimony was received in evidence as Exhibit P-14, being the transcript of his deposition of March 5, 1992. Attached to Dr. Carlson's testimony as Exhibit P-2 was the prior Performance Evaluation Summary Report about Dr. Simmons, dated February 1, 1989. After rating Dr. Simmons as exceeding standards in many areas when Dr. Simmons was Assistant Medical Director, Dr. Carlson stated, in the comment section of the appraisal:

 Dr. Simmons is an excellent clinician and an extremely reliable clinician. His dedication to his patients and his ability to complete large volumes of work related to committees and special assignment are definite assets. His determination to implement quality assurance programs is obvious. He is always ready to assist the undersigned in providing coverage and developing new programs as needed.

 In the fall of 1990, a new Assistant Superintendent for Clinical Services was installed, Linda F. Kunst, M.D. Dr. Kunst, a psychiatrist, was said by Dr. Carlson to be "a very difficult person to work with, no question about that". Simmons N.T. at 19-20. Dr. Kunst soon became the subject of three employee formal grievances in just one month, one of them filed by a Dr. Rita Hanley, who ultimately took Dr. Simmons's job as Acting Medical Director while he was serving in Operation Desert Storm. *fn1" These grievances were filed because the employees alleged that Dr. Kunst was asking them to do what they regarded as improper tasks.

 Hours before leaving for active duty in connection with what was then called Operation Desert Shield, Dr. Simmons attended a meeting with Dr. Kunst and Mr. DiDario. By the testimony of all three individuals, the meeting was not a success. Dr. Kunst and Mr. DiDario insisted that Dr. Simmons provide additional material on medical quality assurance issues, notwithstanding the fact that he had done so previously, and, as noted above, was highly regarded in that area by Dr. Carlson. Dr. Simmons was asked to deliver these additional submissions in twenty-four hours. Dr. Simmons strenuously objected to this demand, noting, among other things, the fact that for long periods of time he did not have a secretary and was short of support staff. Mr. DiDario in his testimony agreed that Dr. Simmons's complaint about lack of support and secretarial staff was well-founded. The meeting ended abruptly, and unsatisfactorily from the point of view of all concerned.

 Events During Military Service

 in Operations Desert Shield and ...


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