502 F.2d 512 (5th Cir. 1974), 73-2453, Smith v. United States

Docket Nº:73-2453.
Citation:502 F.2d 512
Party Name:Donald K. SMITH, Plaintiff-Appellant. v. UNITED STATES of America et al., Defendants-Appellees.
Case Date:October 07, 1974
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 512

502 F.2d 512 (5th Cir. 1974)

Donald K. SMITH, Plaintiff-Appellant.


UNITED STATES of America et al., Defendants-Appellees.

No. 73-2453.

United States Court of Appeals, Fifth Circuit

October 7, 1974

Page 513

G. William Baab, Dallas, Tex., for plaintiff-appellant.

Charles D. Cabaniss, Asst. U.S. Atty., Dallas, Tex., Frank D. McCown, U.S. Atty., Ft. Worth, Tex., Robert E. Kopp, Michael Kimmel, Neil H. Koslowe, Dept. of Justice, Washington, D.C., for defendants-appellees.

Before GEWIN, GOLDBERG and CLARK, Circuit Judges.

Page 514

GEWIN, Circuit Judge:

This federal employee discharge case was heard by the district court on cross-motions for summary judgment, and this appeal is from a decision adverse to the employee. The record before the court was the administrative record compiled in the proceedings before the Hearing Officer from the Veterans' Administration (VA) and before the Civil Service Commission. Both parties assert that the facts were fully developed and that the administrative record is sufficient to present all pertinent issues for our consideration. Appellant claims that his discharge is violative of his First Amendment right of freedom of speech. We do not find any constitutional violation, and affirm the district court.


We commence our analysis of the issue presented with a deep consciousness of the constitutional guaranty of free speech. As stated in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964):

We consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

376 U.S. at 270, 84 S.Ct. at 721.

The controversy involved did not arise on the hustings, in a classroom, at a political gathering, on a public street or in a public park. It arose in a Veterans Hospital and relates specifically to the asserted right to engage in 'symbolic speech' in the psychotherapeutic ward of the hospital where patients are housed who have been diagnosed as emotionally disturbed and in need of medical supervision and treatment. The appellant is not a physician. In our consideration of the issue we must look to the place, time and circumstances disclosed by the record as well as the type of conduct involved in striking the delicate balance necessary between the legitimate interests of the government and the constitutional rights of the appellant. Attention must also be given to the welfare and rights of the patients who are confined for treatment.

Appellant was a clinical psychologist at the Veterans' Administration Hospital in Dallas, Texas. He provided therapeutic treatment for veteran patients in need of emotional rehabilitation. On March 2, 1970, he began wearing on his lapel a 'peace pin' 1 -- a pin, about the size of a nickel, fashioned with the outline of a dove superimposed upon a replica of the American flag. Three days later appellant, Dr. Smith, was informed by his supervisor, Dr. A. J. Jernigan, that hospital policy 2 prohibited employees who were required to wear uniforms from wearing peace pins while on duty and that, in other cases, employees desiring to wear emblems should consult with their supervisors to determine the effect which the wearing of such items might have on patients and the work environment. Dr. Jernigan told Dr. Smith that he felt the prohibition against wearing peace pins on uniforms also applied to staff psychologists who wear suits or sports jackets while performing their duties at the hospital. Appellant continued to wear the pin and, on March 18, he was instructed by Dr. Jernigan

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not to wear it while on duty. Dr. Jernigan reasoned that the pin might be offensive to some of the patients and that it was inappropriate to introduce any such stimulus into the patient-paychologist relationship.

Appellant refused to remove the pin and, on March 25, 1970, Dr. Jernigan sent him a 'letter of admonishment.' This was followed by a notice of intent to reprimand on March 31, and a reprimand on April 7. On April 14, Dr. Jernigan sent appellant a notice of proposed removal based upon the following charge: 'I have instructed you not to wear a lapel pin while on duty which, in my judgment, could be offensive to patients and thus impair your effectiveness as a psychologist involved in direct patient care. You have continued to wear this lapel pin in defiance of my instructions.'

Appellant requested that a hearing officer from the Veterans' Administration be appointed to conduct a hearing at the hospital on the proposed removal. A hearing was held on May 6 and 7 and Dr. Smith was represented by counsel. On May 25, Dr. J. B. Chandler, director of the hospital, informed appellant that the charge against him was sustained and that his removal would be effective May 27.

Dr. Smith did not claim a lack of understanding of hospital policy or the instructions given by his superiors. He fully understood but completely disagreed with such policy and instructions. The several conferences between Dr. Jernigan and Dr. Smith and the exchange of letters brought the issue into sharp focus. In a final attempt to gain compliance with his instructions Dr. Jernigan submitted two questions to Dr. Smith. The questions and answers are as follows:

Dr. Smith, will you assure me (Dr. Jernigan) that you will not wear a peace pin while on duty? No, not in a thousand years. Is it your intention to continue to wear a peace pin while on duty? Yes, without fail.

Dr. Smith adamantly maintained his position and never yielded in the slightest to the requests and instructions of Dr. Jernigan. He claimed that he had worn the pin in the psychotherapeutic ward for approximately thirty days and had observed no adverse patient reaction. He did mention some comments of disapproval by co-workers. He presented no witnesses at the hearing but did present an article which demonstrated that there existed a difference of opinion by specialists in the area of inquiry. Finally he asserted that other personnel were permitted to wear replicas of the American flag in certain areas of the hospital. The record does not disclose that any other personnel wore emblems of any kind in the psychotherapeutic ward. the evidence tended to show that Dr. Smith was the only member of the staff who did so. We believe it is fair to conclude that the record reveals a direct conflict between the medical opinion of the hospital staff physicians and the opinion of Dr. Smith with respect to the conduct of a psychotherapist in the treatment of patients. As indicated earlier, Dr. Smith is not a physician.

On appeal to the Administrator of the Veterans' Affairs the decision to remove Dr. Smith was affirmed. The decision was also affirmed by the Dallas Region of the Civil Service Commission. Dr. Smith appealed this decision to the Board of Appeals and Review of the Civil Service Commission which affirmed the decision of the Dallas Region. The Board found that Dr. Chandler acted within his authority in placing on appellant the restriction against wearing the peace pin. The Board did not consider appellant's First Amendment contentions but noted that the 'Board is not the proper forum for a decision of this issued. The Board does not pass on the question of the appellant's right to wear the pin but only on the question of whether the appellant

Page 516

was justified in wearing it in the facts of this case in defiance of an instruction not to do so and in arriving at its decision the Board decides whether the removal action was for such cause as to promote the efficiency of the service.'


We shall consider appellant's assertion that his First Amendment right of free speech was infringed because his discharge from employment at the VA Hospital was based on his refusal to stop wearing a peace pin while on duty. Wearing such an emblem for the purpose of expressing certain views is the type of symbolic act that is within the free speech protection of the First Amendment. 3 Tinker v. Des Moines Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). It is clear that the Government may not prohibit or control the conduct of a person for reasons that infringe upon constitutionally guaranteed freedoms. The approval of such restrictive action would permit the government to 'produce a result which (it) could not command directly.' Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460, 1473 (1958). Public employment is a benefit which cannot be conditioned upon the denial of constitutional rights. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952).

The Supreme Court recognized in Pickering v. Board of Education,391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811, 817 (1968), that the government 'has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.' 4 Moreover, this court has observed that 'government should be able to regulate activities which directly interfere with the proper performance of its employees' duties.' Hobbs v. Thompson, 448 F.2d 456, 470 (5th Cir. 1971). However, government regulations and restrictions on the exercise of First Amendment freedoms 'should not lightly be imposed.' Hobbs...

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