Ring v. Schlesinger, 72-1568

• Citation: 164 U.S.App.D.C. 19,502 F.2d 479
• Decision Date: 16 August 1974
• Docket Number: No. 72-1568,72-1568
• Parties: Anita J. RING, Appellant, v. Honorable James R. SCHLESINGER and Honorable John W. Warner, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 479

502 F.2d 479

164 U.S.App.D.C. 19

Anita J. RING, Appellant, v. Honorable James R. SCHLESINGER and Honorable John W. Warner,

Appellees.

No. 72-1568.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 24, 1973.

Decided Aug. 16, 1974.

Ralph J. Temple, Washington, D.C., with whom Melvin L. Wulf, New York City, was on the brief, for appellant.

Jason D. Kogan, Asst. U.S. Atty., with whom Harold H. Titus, Jr., U.S. Atty., and John A. Terry, Asst. U.S. Atty., were on the brief, for appellees.

Before WRIGHT and ROBB, Circuit Judges and MATTHEWS, ^* Senior United States District Judge for the United States District Court for the District of Columbia.

MATTHEWS, Senior District Judge:

A teacher, hired to teach Navy dependents at the United States Naval Station on Midway Island for a one-year probationary period, was discharged during such trial period pursuant to Navy Civilian Personnel Instructions (NCPI) 352.4-8 governing termination of employment during probation.

Suit was instituted by the teacher against the Secretary of Defense and the Secretary of the Navy seeking a declaratory judgment that her dismissal denied her freedom of speech under the First Amendment and procedural due process under the Fifth Amendment.

The teacher moved for summary judgment. The Government responded with a similar motion. Summary judgment was granted by the District Court to the Government, and the teacher appealed.

I

On July 14, 1965, appellant contracted with the Department of the Navy to serve as a secondary teacher in the Navy Dependents School (George Cannon High School) at the United States Naval Station on Midway Island for the period from August 17, 1965, to June 7, 1966. In addition to her salary, appellant was to receive travel and transportation allowances. Thereafter, in accordance with this agreement, she entered upon her teaching duties.

On April 17, 1966, appellant and two other colleagues prepared a memorandum entitled 'Richard Bushman's incompetency and lack of ethics as principal of George Cannon School.' This memorandum ¹ stated:

'We would like to bring to your attention a number of incidents that have occurred in George Cannon High School which warrant your consideration. We believe that there has been an almost total breakdown of morale and discipline because the principal, Mr. Bushman, has not carried out his duties competently and has on the contrary disregarded even the most basic professional ethics. He has indicated that his attempts to carry out policies have met with staunch parental disapproval. We believe it is Mr. Bushman's duty as principal to see that school policies, approved by the school board and teachers, are enforced despite the opposition of any student or parent.'

At the same time, each teacher prepared her own personal statement criticizing administrative actions and specifying events and policies which she believed to be mismanagement of the school. Appellant's personal statement in its entirety is set forth in the Appendix to this opinion.

Mrs. Ring sent the memorandum of April 17, 1966, and the teachers' personal statements to four persons. The recipients were: Captain J. M. Savacool, Commanding Officer of the United States Naval Station, Midway Island; Richard R. Meyering, Superintendent, Department of Defense Dependent Schools for the Pacific area; Edwin G Francisco, Coordinator, Department of Defense Dependent Schools; ² and Virginia J. March, a representative of the Overseas Education Association of the National Education Association. Only Captain Savacool lived and worked at Midway Island.

The record indicates that after receiving the memorandum and statements, Captain Savacool instructed the School Advisory Board to investigate the allegations made by Mrs. Ring and the other two teachers. The Board met five times, but Mrs. Ring appeared before it only once, at which time the main inquiry was directed to why she had not sent her memorandum through channels. ³

Following its investigation, the Board submitted a written report to Captain Savacool, finding that there was no support for the teachers' allegations. It recommended that '(1) Mrs. Ring's employment as a secondary teacher be terminated at the earliest possible opportunity, by reason of undesirable suitability characteristics. (2) That Mrs. Faris be issued a letter of caution concerning her actions. (3) That Mrs. Burgess be verbally reprimanded for her actions. (4) That this summary, and the attachments be retained by the command for frference.' Appendix, p. 118.

On May 14, 1966, Captain Savacool gave Mrs. Ring written notice that he proposed to terminate her services as a teacher effective May 20, 1966, in accordance with NCPI 352.4-8 'which provides for the separation of an employee during the trial period if it becomes apparent that the employee has undesirable suitability characteristics.' Appendix, p. 25. Further he stated that she had made 'statements which were slanderous and defamatory about the officials of the Dependents' School'; that she had 'transmitted these slanderous and defamatory statements by letters to several persons in other locations'; and that these statements had 'created friction and discord among the school faculty and (had) seriously hampered the proper administration of the school system.' Id.

On May 20, 1966, Mrs. Ring presented an eight-page, typewritten letter in reply to Captain Savacool's notice of the proposed termination of her services. On the same day, she received written notification from Captain Savacool effecting her termination. She complied with an order to leave Midway Island on May 25, 1966, without allowances for travel and transportation. ⁴

In suing the Secretary of Defense and the Secretary of the Navy seeking a declaratory judgment that her dismissal was in contravention of her constitutional rights, appellant asked that the defendants be compelled to expunge from the records of the Department of the Navy and the Department of Defense and all other records under their control all references to her dismissal including the ostensible reasons therefor.

We first consider appellant's procedural due process claim.

II

The District Court found that in effecting appellant's discharge, Captain Savacool had followed the procedures of the pertinent Navy Civilian Personnel Instructions (NCPI). ⁵

It was understood in Mrs. Ring's employment agreement that all Navy Civilian Personnel Instructions applied to her appointment and service. Her discharge was grounded on undesirable suitability characteristics. In part, Navy Civilian Personnel Instruction 352.4-8a provides:

'Termination During Probation is the appropriate action when:

'(1) A career or career-conditional employee, during his probationary period, fails after a full and fair trial to demonstrate that he possesses the skills and character traits necessary for satisfactory performance as a career employee. (A full and fair trial is whatever period (within the one-year probationary period) is necessary to appraise his performance and conduct against appropriate standards and to reach a considered judgment whether he should be retained or separated; * * *). The action may be based upon deficiency in duty performance, lack of aptitude or cooperativeness, or upon undesirable suitability characteristics evidenced by his activities either during or outside official working hours. * * *'

Mrs. Ring was given notice, the reasons for her proposed separation, the effective date thereof, was advised of her right to reply personally and/or in writing, received consideration of her reply, and a final decision terminating her employment-- all in compliance with NCPI 352.4-8b. ⁶

However, Mrs. Ring contends that by virtue of her contract she had a property interest or an expectancy of continued employment and benefits which could not be divested without a due process hearing. Conversely, the Government maintains that Mrs. Ring's discharge without a hearing did not constitute a violation of due process. Both parties rely on Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). These cases do not concern an employee discharged during the term of his contract, but they bear on procedural rights constitutionally guaranteed public employees in connection with their dismissal from employment.

In Roth, supra, an assistant professor was hired for a fixed term of one academic year and had no tenure. His contract was not renewed at the end of the academic year. He sued, claiming that the failure of university officials to give him notice of any reason for nonretention and an opportunity for a hearing violated his right to procedural due process. The Supreme Court ruled that 'he did not have a property interest sufficient to require the University authorities to give him a hearing when they declined to renew his contract of employment.' 408 U.S. at 578, 92 S.Ct. at 2710.

In Sindermann, supra, a state college declined to rehire a teacher whose written contract had no tenure provision and had terminated. Unlike Roth, the teacher alleged that he had a property interest in continued employment in that he was entitled to job tenure under a de facto tenure program, arising from rules and understandings formulated and fostered by the college. The Court held that proof of these allegations would establish the teacher's legitimate claim of entitlement to continued employment absent sufficient cause for discharge. In these circumstances the Court ruled that the teacher must be given an opportunity to prove his allegations, and that such proof would obligate the college to grant a hearing where the teacher could be informed of the grounds for his nonretention and challenge their sufficiency. 408 U.S. at 601-603, 92 S.Ct. 2694.

While a 'property' interest protected by procedural due process did not exist in Roth, the...