Ashton v. Civiletti, 76-1142
| Citation | 198 U.S.App.D.C. 190,613 F.2d 923 |
| Decision Date | 04 January 1980 |
| Docket Number | No. 76-1142,76-1142 |
| Parties | 20 Fair Empl.Prac.Cas. 1601, 21 Empl. Prac. Dec. P 30,297, 198 U.S.App.D.C. 190 Donald R. ASHTON, Jr., Appellant, v. Benjamin R. CIVILETTI, Attorney General of the United States of America, Department of Justice, et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Steven S. Rosenthal, Washington, D. C., with whom Charles Lister and Ralph J. Temple, Washington, D. C., were on the brief, for appellant.
Constantine J. Gekas, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert U. S. Atty., John A. Terry and Peter E. George, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellees.
Before WRIGHT, Chief Judge, and McGOWAN and LEVENTHAL, Circuit Judges.
Appellant Donald Ashton, a non-investigatory employee of the Federal Bureau of Investigation, complained in the District Court of the abrupt termination of his employment solely by reason of his admission of homosexuality. Appellees the Attorney General of the United States and the Director of the Bureau moved for summary judgment on the grounds that appellant (1) had voluntarily resigned and (2) had no expectation of continued employment entitling him to a due process hearing prior to his discharge. Pretermitting the first of these questions, the District Court based the judgment appealed from on the second. Because we conclude that the FBI's communications to appellant gave him a property interest in his job which entitled him to the protections of procedural due process, we reverse the grant of summary judgment and remand for further proceedings consistent herewith.
The facts giving rise to this controversy are derived mainly from affidavits submitted respectively in support of, and in opposition to, the motion for summary judgment. Appellant's employment by the FBI began on October 3, 1973, when, recently graduated from high school, he began work as a mail sorter in the Messenger Unit of the Files and Communications Division. He continued in that employment until January 10, 1975, during which period his grade classification was increased from GS-2 to GS-4 and no dissatisfaction with his work was registered by his supervisors. His appointment was formally embodied in a letter to him from Director Kelley, dated September 5, 1973, which in principal part was as follows:
Dear Mr. Ashton:
I am pleased to offer you an appointment in the Federal Bureau of Investigation, United States Department of Justice, as a Clerk in Grade GS 2 with salary at the rate of $5432 per annum less necessary deductions. This appointment is probationary for a period of one year during which time you will be required to demonstrate your fitness for continued employment and is subject to cancellation or postponement at any time prior to your entry on duty. In accepting this appointment you will be expected to remain on duty for a minimum period of one year contingent, of course, upon your maintaining a satisfactory work record. This is necessary in view of the substantial expense involved in the overall processing of your application and the training which will be afforded you following your entry on duty. Your assignment will depend upon your qualifications and the needs of the Bureau at the time of your entry on duty. Positions in the Federal Bureau of Investigation are excepted by law from the competitive Civil Service, and your acceptance of this appointment will automatically constitute relinquishment during your tenure of any such competitive status you may have acquired. J.A. 148.
The only reference in this letter to conduct was that "Employees are expected to dress appropriately for work in a business office." 1
At 10:30 A.M. on January 10, 1975, appellant, without prior notice of any kind as to the purpose of the meeting, was summoned to the office of Special Agent Paul F. Shea. With Mr. Shea was Special Agent Richard E. White, who was serving at that time as Chief of the Mail Processing Unit in which appellant worked. Shea directed appellant's attention to a Naval Investigation Service Report which had been transmitted to the FBI and which said that a person ("subject") under Navy investigation had admitted engaging in homosexual activities with several people, one of whom he could identify only as Don, a mail clerk with the FBI.
Shea asked appellant if he knew the subject and, after some uncertainty about the name, appellant recalled that he had met him some months earlier at a restaurant in Washington and had gone with him to his apartment in Quantico, Virginia. In response to Shea's specific questions, appellant denied engaging in oral intercourse but said that he and the subject had fondled each other; and he went on readily to admit his homosexuality since his junior year in high school three years earlier. 2 In answer to Shea's question as to whether any of appellant's fellow FBI employees knew of his homosexuality, appellant, according to Shea, said that, by reason of his discreet reserve on this score, none did, including his roommate who was an FBI employee.
Shea then interrupted the interview for the purpose of going to consult with Special Agent Woodworth in the Administrative Division, who was familiar with the Naval Intelligence report. After hearing from Shea of appellant's admissions, Woodworth advised Shea that appellant should be told that he could voluntarily resign, but, if he did not, Shea would be obliged "to recommend appropriate disciplinary action which could include censure, censure and probation, or termination of his employment."
According to appellant, when Shea returned he told him that "Woodworth had advised him that I should be dismissed if I didn't resign immediately." Appellant's affidavit describes the remainder of the interview as follows:
7. I repeatedly asked if I might be placed on probation or censured. They said that it was unlikely. I asked if I could at least finish the pay period, which would mean I would work another week. Mr. Shea said no, that I had to resign immediately.
8. I was told that if I did not resign immediately everyone would know of my homosexuality. Whether everyone knew of my homosexuality made no difference to me. I was also told that I would have difficulty in finding employment and it would prove a great embarrassment to me, but that if I did resign I could use them as a reference and nothing would be said to my prospective employer. Two weeks after I left I called Mr. Shea and he said he knew nothing of how references worked; I called because I felt they had been giving bad references after I was insured (Sic ) that if and only if I resigned I would be assured a good reference.
9. I did in no way want to resign. At the time of the interview I was frightened and confused. From beginning to end I was never offered or advised of my right to legal counsel or of my right to remain silent, and I answered all the questions put to me. I had no time to reflect on or analyze the situation I was in, and I submitted a resignation only because I was offered no possible alternative.
The affidavits of Shea and White offer a somewhat different account of this later portion of the meeting. 3 All parties agree however, that at 12:00 noon appellant executed a hand-written resignation effective immediately. On January 24, 1975, appellant, through the medium of newly retained counsel, represented to Director Kelley that his resignation was involuntary and requested reinstatement. By letter of February 5, 1975, Director Kelley advised counsel that the FBI had "not found a basis for reinstatement as requested."
On May 9, 1975, appellant's complaint was filed in the District Court. It asserted, Inter alia, that (1) appellant's resignation had been coerced, (2) his rights of property and liberty had been denied without the hearing required by the Due Process Clause, and (3) his First and Fifth Amendment rights had been violated by the termination of his job for a reason bearing no rational relationship to the performance of his assigned duties. Addressing only the second of the two issues relied upon by appellees in their motion for summary judgment, the District Court ruled that the Fifth Amendment afforded appellant no procedural safeguards. This was so, said the court, because appellant was "unable to demonstrate any property interest in his position." 4
Although the disposition made by the District Court on summary judgment involves only appellant's right Vel non to a due process hearing before dismissal, latent in the case is the substantive issue of whether appellant's homosexuality, without further inquiry of any kind and particularly with respect to job-relatedness, either required or justified termination of his employment. In the course of oral argument on appeal, a statement to this effect by counsel for appellees prompted this court to request that counsel check with his clients and submit a more formal representation as to precisely what the FBI's policy presently is in this regard. The supplemental memorandum filed March 2, 1979, in response to this request contained the following statement:
The Federal Bureau of Investigation has always had an absolute policy of dismissing proven or admitted homosexuals from its employ.
In this court appellant challenges the District Court's holding that he was without procedural rights of any kind. He goes on to point out, however, that his complaint went beyond procedure to substance in that it charged appellees with unlawfully dismissing a non-probationary, non-investigatory employee solely by reference to homosexuality and with no demonstration of the relevance of that condition to job performance. Three foundations are asserted for this proposition:
1. Appellant's discharge was agency action of an arbitrary and capricious nature...
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