Phillips v. Bergland

• Decision Date: 17 November 1978
• Docket Number: No. 77-2234,77-2234
• Citation: 586 F.2d 1007
• Parties: Ross A. PHILLIPS, Appellant, v. Bob BERGLAND, Secretary of Agriculture, United States Department of Agriculture, in his official capacity and not in his Individual capacity, Washington, D. C. and Robert E. Hampton, Chairman, Civil Service Commission, in his official and representative capacity and not in his Individual capacity, 1900 E. St., NW, Washington, D. C. 20415, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1007

586 F.2d 1007

Ross A. PHILLIPS, Appellant, v. Bob BERGLAND, Secretary of Agriculture, United States Department of Agriculture, in his official capacity and not in his Individual capacity, Washington, D. C. and Robert E Hampton, Chairman, Civil Service Commission, in his official and representative capacity and not in his Individual capacity, 1900 E. St., NW, Washington, D. C. 20415, Appellees.

No. 77-2234.

United States Court of Appeals Fourth Circuit.

Argued June 9, 1978.

Decided Nov. 17, 1978.

John R. Goodwin, Charleston, W. Va., for appellant.

William A. Kolibash, Asst. U. S. Atty., Wheeling, W. Va. (Stephen G. Jory, U. S. Atty., Elkins, W. Va., on brief), for appellees.

Before BRYAN, Senior Circuit Judge, and RUSSELL and HALL, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

The appellant, employed as a Research Mechanical Engineer, GS-12, in the Forest Service of the United States Department of Agriculture, Morgantown, West Virginia, filed this action in the District Court seeking review of his discharge, as approved in a decision of the Civil Service Commission's Appeals-Review Board (ARB) on February 20, 1976. Both the appellant and the appellees moved for summary judgment on the administrative record. The District Court granted the motion of the appellees for summary judgment and dismissed the action. The appellant appealed. We reverse.

The appellant had been employed by the Forest Service for nine years before the incident which lead to his discharge. There is no suggestion by the ARB that during this period of service he had not been a faithful and efficient employee or that his relations with his supervisors and fellow-employees had not been cooperative and cordial. The appellant testified, without contradiction that at no time during his employment had he been disciplined or censured. And, as a matter of fact, the incident resulting in his discharge did not relate to his performance as an employee, it arose purely and simply out of a personal difficulty with a fellow-employee over a private business in which the two had engaged and a debt owed by such private business.

The private business out of which the appellant's difficulty with a fellow-employee arose was a retail tire business in Elkins, West Virginia. The business, known as the Elkins Auto Center, was operated as a corporation in which the appellant and one Biller, a fellow-employee, had equal ownership of the stock. For their stock, the appellant and Biller had each paid approximately $10,000. The appellant, however, had advanced from the funds of his three minor sons, approximately $20,000 additional to the corporation. The business was located in a building rented by the corporation from Biller. It was not a successful venture. The reason for its failure is not clear but it was the appellant's belief that Biller was responsible for the business' failure.

As the business began to flounder, Biller claimed to have transferred his stock in the corporation to the appellant and to have disassociated himself from the business. The actual date of the assignment by Biller of his stock to the appellant was, however, subsequent to the business' failure and also subsequent to the incident in question. In any event, as the business was failing, Biller began "pushing and pushing" the appellant individually to pay the back rent due him by the corporation. On the Friday before the pertinent incident on Monday, April 9, the tire supplier of the business repossessed all the then stock of the corporation. At that point the corporation had nothing but some few doubtful accounts-receivable and substantial unpaid debts. The appellant was out his $10,000 investment and the $20,000 he had advanced from the inheritance of his minor sons. It was with this background that the appellant reported for work on the morning of April 9.

After the appellant had begun work on April 9, Biller went to appellant's office where he found him quite distraught. He immediately began pressing the appellant to pay the back rent due him individually by the defunct corporation in which the two had been involved. ¹ Biller emphasized that he expected payment by noon of that day. When the two took their lunch-break the appellant suggested that the two of them go to some place where they could talk in private. They withdrew to "an enclosed stairway separated from the rest of the building," occupied by the local unit of the Forest Service. As they reached the stairway, the appellant, who had been walking behind, threw what the ARB described as a "rope" and what Biller suggested at one point was similar in some respects to "binder's twine" about Biller's neck. What pressure, if any, the appellant applied is not clear. In any event it was not enough to leave any marks on Biller's neck, only enough to cause, as Biller characterized it, a burning sensation on his "neck and Adam's apple." The ability of Biller to talk was not interfered with. When examined later by a doctor Biller was dismissed without any treatment or medication, and without any observable injury. ² The appellant, so far as the record shows, did not hit Biller or otherwise molest him. Actually, Biller was some twenty years younger than appellant and as he admitted, he was "a pretty husky fellow," larger than the appellant. When this all happened, Biller looked out the window, saw a friend, and asked him to help him. The friend, a fellow-employee named Pruett, came in, touched the appellant and told him to stop. The appellant promptly complied. That was the extent of the incident.

At the suggestion of Pruett, Biller and the appellant went to their supervisor and reported the incident. The appellant gave as his explanation that he was emotionally upset, that he needed psychiatric treatment, and that Biller "kept pushing me and pushing me." Biller replied directly to the appellant, "Well, Ross, you have to make the payments." ³ At this point the appellant was taken to the West Virginia University Hospital, where, over the period of the next nine days, he was given a series of shock treatments. At the conclusion of these shock treatments, the appellant was certified by the attending physician as qualified to return to work. However, within two days after the incident and while the appellant was, to the knowledge of the supervisor, being given psychiatric treatment at the University Hospital, the appellant was advised by the Director of his unit that his discharge was being considered for "Conduct Prejudicial to the Best Interest of the Service and Disgraceful Conduct." This "Disgraceful Conduct" was that the appellant had "placed a rope around his (Biller's) neck and began choking him. This choking continued until another employee, Emerson Pruett, heard Mr. Biller's call for help from the second floor hall and intervened." The appellant was given ten days within which to answer the charge. The discharge proceedings followed the administrative ladder up to the Civil Service Commission's Appeals-Review Board, which sustained the appellant's discharge because of his difficulty with Biller. Following that decision, this action was begun in the District Court. From an unfavorable decree of the District Court, this appeal followed.

The decision in this case turns on the power of an agency to discharge and the circumstances under which such power may be exercised. Congress has expressly denied to an agency the right to discharge or suspend a civil service employee save for "such cause as will promote the efficiency of the service." ⁴ This is to say that "(s)imply having an identifiable cause (for discipline) is not sufficient to warrant adverse action" against a civil service employee; under the statute the adverse action must be " 'for such cause as will promote the efficiency of the service.' " ⁵ It follows that in every case of an adverse action against a governmental employee, the agency must, as an essential predicate for its action, make two affirmative determinations, I. e., it must determine (1) "that the employee misconduct has, in fact, occurred," and (2) "that the disciplinary action taken against the employee will 'promote the efficiency of the service.' " ⁶ Accordingly the mere fact that the employee has committed an immoral or disgraceful act even a criminal act will not justify a discharge unless it can be said that there is what the courts have described as a "vital nexus" between the act and the "efficiency of the service."

There is, of course, some conduct with respect to which the "nexus between the dismissed employee's activities and the efficiency of the service" is "obvious on the face of the facts." ⁷ Typical of conduct, which carries on its face prejudice to the service as contemplated in § 7501(a), are falsification of work records or expense accounts, ⁸ theft of government property, ⁹ assault on one's supervisor at work, ¹⁰ and insubordination. ¹¹ All of these are without question related to the faithful and loyal performance of his duties by an employee and are work-related. They are quite different from misconduct which is entirely unrelated to the employee's work and which occurs when the employee is off duty. And the courts have recognized that distinction and have made plain the greater burden which rests on the agency to justify its action in the latter case. Thus, in Schlegel v. United States (1969) 416 F.2d 1372, 1377, 189 Ct.Cl. 30, Cert. denied 397 U.S. 1039, 90 S.Ct. 1359, 25 L.Ed.2d 650 (1970), the Court said:

"Misconduct (of a federal employee) while off duty does not, in itself, serve as a basis for removal. There must be a showing that the misconduct affected the employee's performance on the job * * *."

Another case has stated the "vital nexus" requirement in the off-duty or non-work-related case as raising the question "whether the asserted grounds for the adverse action, if found supported by evidence, would directly relate either to the employee's ability to...