Significantly, no one was ever charged with any offense arising out of this investigation. According to Ms. Dixon, the only person who would have received any disciplining would have been Mr. Behm himself, who would have received a reprimand had he not retired from service to the hospital.
It is also notable that Mr. DiDario and Ms. Dixon both testified that the reason Dr. Simmons was suspended
was that because, as Acting Medical Director, he had administrative responsibility for the pharmacy, although this was, clearly, one of his least concerns. The July, 1990 Master Organizational Chart of the hospital, which was Exhibit P-1 to Dr. Carlson's testimony, showed that Dr. Simmons was also responsible for the X-ray, Laboratory and Physical Therapy Departments, as well as M&S Records and clinics, in addition to the pharmacy. It is undisputed that Dr. Simmons, throughout his tenure, also continued to see patients.
In all of the testimony received, no one mentioned the fact that Dr. Simmons only served as Acting Medical Director from October of 1989, and, therefore, for at most five of the twenty-four months in question. There was no testimony that, for example, Dr. Carlson was questioned, much less suspended without pay, even though he was Medical Director for by far the longest period of the relevant time, and therefore was also responsible for the operation of the pharmacy. The apparent failure to talk with Dr. Carlson is surprising, since Dr. Carlson made it clear in his testimony that the chief of the pharmacy, Mr. Behm, did whatever he could to "bypass" John Simmons, for reasons best known to Mr. Behm. Simmons N.T. at 17-18.
Thus, although the investigation ultimately proved to be of little significance to anyone, it was of profound importance to Dr. Simmons. Viewing all of the evidence, we could only conclude that Dr. Kunst and Mr. DiDario seized upon this purported "impropriety" as a pretext to justify getting rid of Dr. Simmons in favor of Dr. Hanley, who assumed Dr. Simmons's job while he was on military leave.
Besides all of the foregoing reasons, other circumstantial evidence supported our finding that Dr. Simmons was, as he feared, being "set up" for the termination that ultimately came in September of 1991. For example, we found that a letter that Mr. DiDario sent to Dr. Simmons, dated August 21, 1991, Defendant's Exhibit D-3, was calculated to force Dr. Simmons into an administratively indefensible position. This letter went far beyond its reference to "your possible involvement in irregularities in the operation of the hospital Pharmacy." The letter for the first time added that, "The investigation has since been expanded to include alleged misrepresentation concerning your military orders validating your absence from this hospital and your status in support of military operations in the Middle East." This supposed expansion of the "investigation" was, according to the testimony of Ms. Dixon, nothing more than her not fully understanding the distinction between active duty with military pay and active duty without military pay, since, apparently, Dr. Simmons had served several days at Willow Grove without active duty pay.
As noted earlier, however, it was undisputed that, from November 30, 1990 through July 26, 1991, whether on active duty pay or serving voluntarily Dr. Simmons did so "at the request and for the convenience of the Federal Government."
This August 21 letter did not stop at these subjects, however, but also for the first time demanded that Dr. Simmons complete a "Statement of Financial Interest" and "Code of Conduct" forms that were transmitted with the letter. These ten pages of printed forms were demanded to be completed within the few days Dr. Simmons would have before the August 27 meeting to which the letter summoned him.
To add measure, Mr. DiDario stated that Dr. Simmons's "Failure to complete these forms will result in termination of your employment." Mr. DiDario admitted in his testimony that he knew Dr. Simmons could not have filled out the forms while he was serving in Operation Desert Shield/Desert Storm, but that he thought he would just raise the subject since he was talking about everything else.
The letter also demanded that Dr. Simmons attend a meeting on Tuesday, August 27, as part of a "continuation of the investigatory process." He was told to attend the meeting "and to cooperate" or else he would be considered in "gross insubordination" that could result in the termination of his employment.
Notwithstanding the peremptory nature of the August 21 letter, Dr. Simmons telephoned Mr. DiDario on Friday, August 23, to state that the meeting time was inconvenient owing to his commitment to help his daughter move in the District of Columbia. As they chatted, Dr. Simmons came to the conclusion that Mr. DiDario was goading him, but Dr. Simmons maintained a respectful tone. Mr. DiDario recalled that Dr. Simmons objected in this conversation to what Dr. Simmons called "a witch hunt."
When we asked Mr. DiDario whether, as of the time of trial, he believed that Dr. Simmons was involved in any impropriety of any kind, Mr. DiDario admitted that he did not think so. He also admitted that no other employee at the hospital was ever suspended, with or without pay, in connection with the investigation.
In their apparent haste and intensity to drive Dr. Simmons out of Norristown State Hospital, Dr. Kunst and Mr. DiDario failed to comply with Pennsylvania administrative procedures in connection with suspending employees. As we found in open court, Title 4 of the Pennsylvania Code, at § 105.3, provides, in relevant part,
§ 105.3 Statement of Reasons.
Notices of removal, resignation by abandonment, involuntary retirement, involuntary demotion, or suspension issued to regular employes shall include a clear statement of the reasons therefor, sufficient to apprise the employe of the grounds upon which the charges are based.
Obviously, the July 29, 1991 letter did not begin to provide Dr. Simmons with "a clear statement of . . . the grounds upon which the charges are based" and, indeed, all of the witnesses at trial admitted that no such grounds could be given to this day because none exist.
In his testimony, Mr. DiDario tried to minimize the significance of the suspension without pay, and even went so far as to say that it was not a disciplinary matter. By contrast, we received defendant's Exhibit D-7, which is the current version of Section 7174 of the Pennsylvania Department of Public Welfare Personnel Manual (reissued April 20, 1988). Section 7174 is entitled, "Discipline". Subsection 7174.3, entitled "Disciplinary Program", includes, at page 5, a page entitled, "Suspension Letter". From a comparison of the sample letter in the DPW Personnel Manual, the July 29, 1991 suspension letter is a very close, though not verbatim, version of the sample provided in § 7174.3. This same page of § 7174.3 states: "In any case, a suspension must be based on specific reasons fully substantiated by fact." Palpably, the suspension of Dr. Simmons was not, and could not have been, "based on specific reasons fully substantiated by fact." Thus, even under the Department of Public Welfare's own Personnel Manual, the July 29, 1991 "suspension" was a nullity as a matter of Pennsylvania administrative law.
The whole chain of events that commenced with the charade of the July 29 "suspension" letter was a clever pretext to establish the "cause" the Veteran's Reemployment Rights Act offers employers as a way out of the requirement to give restoration or reemployment for at least one year to returning veterans. See 38 U.S.C. § 2021(b)(1)(A). It is clear under the law that the employer bears the burden of establishing the "cause" mentioned in the statute. See, e.g., Carter v. United States, 407 F.2d 1238, 1242 (D.C. Cir. 1968). As we held in open court on April 10, the Commonwealth of Pennsylvania has not begun to carry the burden that the statute, as construed, imposes.
To the contrary, the record established that the "investigation" of the pharmacy was nothing more than a pretext Dr. Kunst and Mr. DiDario used in order to prevent Dr. Simmons from resuming the duties he had performed with such distinction before he left to serve his country. It was to avoid precisely this sort of shabby behavior that Congress adopted the Veteran's Reemployment Rights Act, and Dr. Simmons is therefore occupies the position Congress sought to protect under the statute. As the Supreme Court of the United States has recently instructed in King v. St. Vincent's Hospital, U.S. , 112 S. Ct. 570 (S. Ct. No. 90-889, December 16, 1991), moreover, the "provisions for benefits to members of the Armed Services are to be construed in the beneficiaries' favor." Slip Op. at 6, citing Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285, 90 L. Ed. 1230, 66 S. Ct. 1105 (1946).
Under 38 U.S.C. § 2022, district courts "shall have the power . . . specifically to require . . . employer[s] to comply with such provisions and to compensate such person for any loss of wages or benefits suffered by reason of such employer's unlawful action." By its terms, the statute specifically covers "any employer, who is a private employer or a State or political subdivision thereof", id. The Act has a special section dealing with "Rights of persons who enlist or are called to active duty; Reserves", namely § 2024. It cannot be disputed that Dr. Simmons is within the coverage of the statute and has established his entitlement to remedies under the Act.
The remedies available to Dr. Simmons are, in the Court's view, modest in view of the bad faith treatment he suffered in this Kafkaesque drama. Our final judgment and decree, however, gives him no more than what Congress provided in 38 U.S.C. § 2022.
FINAL JUDGMENT AND DECREE
AND NOW, this 14th day of April, 1992, after a non-jury trial, and for the reasons stated in open court, pursuant to Fed.R.Civ.P. 52(a), as supplemented in the foregoing Memorandum, it is hereby ORDERED AND DECREED THAT:
1. Judgment shall be entered in favor of plaintiff and against defendants;
2. Defendants Commonwealth of Pennsylvania and Karen F. Snider, Secretary of the Department of Public Welfare of the Commonwealth of Pennsylvania, shall forthwith pay to John W. Simmons, M.D., all wages to which he was entitled, commencing at 9:00 a.m. on July 29, 1991 through the date of this Decree;
3. Defendants Commonwealth of Pennsylvania and Karen F. Snider, as Secretary of the Department of Public Welfare of the Commonwealth of Pennsylvania, shall pay to Dr. Simmons, in lieu of the benefits he lost by reason of the defendants' unlawful actions, the cash equivalent to the value of such benefits, including, without limitation, the "monthly stipend of $ 400.00 per month" that was paid "to Commonwealth employees who are military reservists" who served "during the Middle East crisis" (such stipend shall be paid for the period November 30, 1991 through July 26, 1991);
4. Defendants shall restore or reemploy Dr. Simmons, without loss of seniority, as Acting Medical Director of Norristown State Hospital for a period of no less than one year from this date;
5. Costs taxed against defendants.
BY THE COURT:
Stewart Dalzell, J.