Mazaleski v. Treusdell

• Decision Date: 27 June 1977
• Docket Number: No. 75-1817,75-1817
• Citation: 183 U.S.App.D.C. 182,562 F.2d 701
• Parties: Stanley C. MAZALESKI, Appellant, v. Dale H. TREUSDELL, Individually and in his capacity as Director, Commissioned Personnel Operations Division, Public Health Service Department of Health, Education and Welfare, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 701

562 F.2d 701

183 U.S.App.D.C. 182

Stanley C. MAZALESKI, Appellant, v. Dale H. TREUSDELL, Individually and in his capacity as

Director, Commissioned Personnel Operations

Division, Public Health Service

Department of Health,

Education and Welfare, et al.

No. 75-1817.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 13, 1976.

Decided April 26, 1977.

Rehearing Denied June 27, 1977.

Christopher M. Reuss, San Francisco, Cal., of the bar of the District of Columbia Court of Appeals, pro hac vice, by special leave of court, with whom Floyd J. Kops, New York City, and James McConville, New York City, were on the brief, for appellant.

Andrea L. Harnett, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry, and Paul M. Tschirhart, Asst. U. S. Attys., Washington, D. C., at the time the brief was filed were on the brief, for appellee.

Before BAZELON, Chief Judge, and TAMM and ROBB, Circuit Judges.

Opinion for the Court filed by TAMM, Circuit Judge.

Concurring Opinion filed by ROBB, Circuit Judge.

Opinion filed by BAZELON, Chief Judge, concurring in part and dissenting in part.

TAMM, Circuit Judge:

This appeal raises various constitutional challenges to the involuntary termination of a federal employee unprotected by our civil-service laws. The district court dismissed the employee's complaint seeking injunctive

and declaratory relief after the submission of affidavits and a brief hearing. Treating the district court's disposition as an award of summary judgment for the government, we reverse for the reasons discussed below.

I. BACKGROUND

A. Generally

From August 13, 1973, until his involuntary termination on July 10, 1975, our appellant, Stanley C. Mazaleski, was a Reserve Commissioned Officer in the United States Public Health Service (Service or PHS). Hired as a scientist, and possessing a Ph.D. degree, appellant was assigned to the position of criteria manager in the Criteria Development Branch of the National Institute of Occupational Safety and Health (NIOSH), ¹ where his duties included the performance of certain chemical analyses and the preparation of recommendations for NIOSH safeguards to protect industrial workers exposed to carcinogenic chemicals.

From the outset appellant had difficulty completing his duties to the satisfaction of his superiors. The reasons offered by the parties to explain this problem differ dramatically. Appellant claims that the malfeasance of NIOSH management, and of his immediate supervisor in particular, prevented him from conscientiously performing his duties. ² The Service, on the other hand, proffers a portrait of appellant that generally depicts him as uncooperative, dilatory and professionally ineffective. See Appellees' Brief at 2-7.

The confrontation, which had been brewing for some time, ³ finally erupted on June 3, 1974 when appellant filed an informal grievance against his supervisor, ⁴ apparently in response to the latter's threat to have him fired. A few days thereafter, the supervisor wrote a memorandum "for the record" detailing what he considered to be appellant's very poor job performance and occasionally irascible demeanor. At the direction of NIOSH management, he also submitted a special Commissioned Officers' Efficiency and Progress Report on appellant (Progress Report), which appellant considered "extremely derogatory." ⁵ Appellant's Brief at 3. Appellant claims that he was never even apprised of the contents of his supervisor's memorandum, id., although the PHS maintains that a copy was sent to him. ⁶ He apparently did see the contents of the special Progress Report, however.

On August 1, 1974, appellee Treusdell, Director of PHS's Commissioned Personnel Operations Division (CPOD), appointed a senior commissioned officer of the Service to investigate appellant's charges and to make written findings and recommendations. Six weeks later, the investigating officer concluded his inquiry and recommended: (1) that all charges be dismissed as unsupported by the facts; (2) that communications between NIOSH supervisors and employees be improved; (3) that the special Progress Report submitted by the supervisor be withdrawn as "totally inappropriate"; ⁷ (4) that appellant be transferred to new duties, if possible; and (5) that appellant should not be prejudiced in any way for having filed the grievance. The investigating officer also concluded that appellant's difficulties within NIOSH did not justify his dismissal at that time. Appellees' App. at 16-19.

The Service claims that appellant, through his counsel, rejected these recommendations. Appellees' Brief at 4. Even the most cursory reading of his counsel's response, however, shows that, although he offered further suggestions, he was generally satisfied with all of them. See Appellees' App. at 12, 20-21. Nevertheless, since NIOSH management could not accommodate appellant's desire to continue his present work in another branch, the grievance was eventually sent up to the Assistant Secretary for Health, who approved the recommendations of the investigator on December 15. Appellant was notified of this final disposition three weeks later. He was provided a copy of the Assistant Secretary's decision and offered, but did not accept, an opportunity to discuss its terms.

During the lengthy processing of his grievance, appellant's relations with his superiors continued to deteriorate. Soon after filing his grievance, appellant began what was to become a lengthy correspondence with various congressmen in which he criticized NIOSH management. Copies of at least some of these letters were returned to the agency for explanation. Then, on November 25, 1974, while final resolution of the grievance was still pending, appellant's supervisor formally requested that appellant's reserve commission be terminated for unsatisfactory performance. ⁸ One intermediate official concurred, but apparently Treusdell, the personnel director, took no action on it. Appellant was not informed that his supervisor had made this termination request until nearly two months later.

The new year, 1975, was to prove no better, even though NIOSH had arranged for appellant to have a new supervisor. In January, appellant's criticism that NIOSH was needlessly allowing workers to be exposed to cancer risks appeared in a New York Times article. ⁹ In February, appellant became involved in the equal opportunity complaint of a fellow employee and soon thereafter charged NIOSH with taking reprisals against him for that involvement. A second request for involuntary termination of appellant's commission quickly followed, this time from the new supervisor, who submitted new charges and even more extensive supporting documentation of unsatisfactory job performance. Appellant immediately countered by filing misconduct charges against the new supervisor and another NIOSH official, which were ultimately rejected. Appellees' App. at 69-70.

B. The Involuntary Separation Proceeding

NIOSH, it appears, soon concluded that it had suffered long enough. In March Treusdell notified appellant that an Involuntary Separation Board (Board) would be convened to consider nine specific charges previously made against him in the termination requests of his two supervisors. Appellant was given copies of these requests and all supporting documentation, notified of the charges against him, and informed of his right to reply in writing. See id. at 54-60.

After appellant's request that the Board delay its inquiry until his EEO complaint could be processed ¹⁰ was denied, he submitted written responses to the charges and asked that he be accorded certain due process rights. ¹¹ This request was also denied, and appellant and his counsel were not permitted to attend the meetings of the Board. On May 2 appellant was notified by the Director of the Office of Personnel Management that, in accordance with the Board's recommendation, his commission would be terminated on June 6. The letter of notification informed him of his right to appeal ¹² but did not state the specific reasons for the termination decision as required by PHS personnel regulations. Appellant did appeal his termination but was informed by the Assistant Secretary for Health ¹³ that, upon careful review of the Board's findings and recommendation and appellant's rebuttals to the charges, he considered the Service's action justified and that no further administrative review was available. The Assistant Secretary further stated that appellant's request to personally present his appeal had been denied, because he had not affirmatively stated any reason why he should be continued on active duty. ¹⁴

C. District Court Proceedings

Appellant filed this suit in June, 1975, immediately prior to being informed of the agency's final decision. He asked for declaratory and injunctive relief on the grounds that the administrative procedures followed in terminating his commission violated his due process rights and that the termination itself was in retaliation for his exercise of the constitutional right of free speech. Appellant immediately filed a motion for a temporary restraining order (TRO) to restrain the Service from terminating his commission, which was denied for failure to exhaust administrative remedies since the agency's final decision was still pending. After appellant was notified of the Assistant Secretary's decision and finally given a copy of the Board's specific findings, which should have accompanied the termination notice handed-down more

                than a month before, he renewed his motion for a TRO.  He then withdrew it when the Service represented that he would not be terminated until he had an opportunity to contest these specific findings.  Appellant subsequently declined the agency's offer to reopen the administrative proceedings, however, apparently because the agency would not allow him to present his case through an attorney to someone other than the Assistant

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