Tygrett v. Barry

Decision Date03 June 1980
Docket NumberNo. 78-1938,78-1938
Citation627 F.2d 1279
PartiesJames R. TYGRETT, Appellant v. Marion BARRY, Mayor of the District of Columbia, et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (D.C.Civil Action No. 1392-72).

John W. Karr, Washington, D. C., was on the brief, for appellant.

David P. Sutton, Asst. Corp. Counsel, Washington, D. C., with whom Judith W. Rogers, Acting Corp. Counsel, Louis P. Robbins, Principal Deputy Corp. Counsel, Richard W. Barton, Deputy Corp. Counsel, Washington, D. C., were on the brief, for appellees.

Ralph J. Temple, of the American Civil Liberties Union, Washington, D. C., also entered an appearance for the appellant.

Before J. EDWARD LUMBARD, * Senior Circuit Judge for the Second Circuit, and TAMM and MIKVA, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

Appellant James Tygrett was a probationary police officer when he was fired from the District of Columbia's Metropolitan Police Department (Department). 1 Charging that his discharge had been in violation of his First Amendment rights, Tygrett brought this suit. After a trial on the merits, the district court sustained the Department's action. Because we believe the district court incorrectly applied the law to the facts elicited at trial, we reverse.

I

Tygrett was fired from the Department in July 1972, shortly before his probationary year was about to end. In the weeks before his firing, Tygrett had become active in efforts by fellow police officers to lobby the Congress for passage of a pending bill that would have increased the pay of police personnel. He took part in several meetings of the local police officers' association, advocating resort to a "sick-in" or "blue flu" as a more effective way of pressing for their demands. 2 Local newspaper reports that Tygrett had made such statements came to the attention of his superiors. They conducted a brief interview with Tygrett during which he acknowledged that he had made the statements attributed to him. Shortly after that, Tygrett received notification from the Department that he was discharged.

This is the second time that Tygrett has appealed his discharge to this court and the third time this court has expressed itself on the subject. In his complaint Tygrett alleged that his discharge violated his First Amendment rights because, he said, it was occasioned solely by his public advocacy. Tygrett also challenged the constitutionality of the statute and regulation on which his discharge had been based. The district court granted the appellees' motion for summary judgment, Tygrett v. Washington, 346 F.Supp. 1247 (D.D.C.1972), and Tygrett appealed to this court.

Relying primarily on Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), this court reversed, and remanded the case for trial. In its opinion, the court set the standard against which the Department's action was to be judged:

(Tygrett's) discharge could be justified only by a specific finding that the statements in question adversely affected his efficiency as a police officer or the efficiency of the Department as a police force. . . . If appellant is to be fired, appellees must make a suitable demonstration, and the District Court, following trial, the appropriate determination.

Tygrett v. Washington, 543 F.2d 840, 849-50 (D.C.Cir.1974) (footnotes omitted). The court carefully elaborated the purposes for which it was remanding the case for trial:

(A)ppellees and the District Court perceived no First Amendment problem, saw no burden of justifying a dismissal traceable to speech, and made no Pickering balance or determination. Our remand is for a trial at which these and other administratively-unaddressed matters can be dealt with on an evidentiary record . . . .

Supplemental Opinion on Petition for Rehearing, 543 F.2d 850, 851 (D.C.Cir.1976) (footnotes omitted).

Guided by this mandate, the district court afforded Tygrett a full hearing on the merits. The court found that there was not sufficient evidence that Tygrett's statements had affected the efficiency of the Department as a whole. Tygrett v. Washington, No. 72-1392, mem. op. at 7 (D.D.C. July 13, 1978) (hereinafter cited as Dist.Ct. Opinion). The court found, however, that Tygrett's "action (had) impaired and impinged upon his own ability to perform his duties as a police officer." Id. at 2. On that basis, the district court sustained the discharge. To provide the background for our discussion of the district court's decision in this case, we briefly set forth the general principles of applicable law.

II

Among the protections the Constitution provides to all public employees is the right not to be fired for reasons that infringe on First Amendment rights. See Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967). Even though public employees may be fired for many reasons and probationary employees often for no reason at all such employees may not be discharged merely for speaking out. See Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972). Nonetheless, as the Supreme Court said in Pickering v. Board of Education, supra, 391 U.S. at 568, 88 S.Ct. at 1734, "the State 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." Accordingly, the judicial task is to strike a balance between the interest of the employee in exercising his First Amendment rights and "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id. As one guideline for dealing with conflicts of this sort, Pickering established that a discharge based on conduct otherwise protected by the First Amendment cannot be sustained unless the conduct impaired the employee's ability to perform his job or interfered with the efficient operation of the agency he served. 391 U.S. at 572-73, 88 S.Ct. at 1736-37.

Pickering and its progeny continue to be the meter by which the First Amendment rights of public employees are measured. Whenever a public employee has been discharged for the exercise of his First Amendment rights, "(t)he initial issue . . . is whether there was, in fact, an interference with the efficiency of the public services performed . . . ." Jannetta v. Cole, 493 F.2d 1334, 1336 (4th Cir. 1974). Where no such interference is shown, the discharge cannot be sustained. In James v. Board of Education, 461 F.2d 566 (2d Cir.), cert. denied, 409 U.S. 1042, 93 S.Ct. 529, 34 L.Ed.2d 491 (1972), for example, the court refused to sustain the discharge of a high school English teacher whose only misconduct was wearing a black armband to class in protest of the Vietnam War. Pickering required that result, the court reasoned, because the school authorities had made no showing that the wearing of the armband threatened to disrupt any school activities. 461 F.2d at 572. When confronted with firings that implicate a public employee's First Amendment rights the courts are required to conduct an individualized and searching review of the factors asserted by the employer to justify the discharge. The purpose of such a review is to assure that those factors have been applied with the deference to be accorded First Amendment rights. See, e. g., Porter v. Califano, 592 F.2d 770, 773-74, 779-80 (5th Cir. 1979); Rosado v. Santiago, 562 F.2d 114, 117-18 (1st Cir. 1977); James v. Board of Education, supra, 461 F.2d at 571-72.

That the public employee is a police officer is, of course, one factor to be considered in applying the Pickering principles to a particular case. See Hanneman v. Breier, 528 F.2d 750, 754 (7th Cir. 1976); Meehan v. Macy, 425 F.2d 469, 470-71 (D.C.Cir.1968), aff'd en banc, 425 F.2d 472 (D.C.Cir.1969). See also Kelley v. Johnson, 425 U.S. 238, 244-46, 96 S.Ct. 1440, 1444-1445, 47 L.Ed.2d 708 (1976). However, that factor does not eliminate the employee's First Amendment rights, nor does it eliminate the need for a meticulous application of the Pickering test. 3 In Hanneman v. Breier, 528 F.2d 750 (7th Cir. 1976), the court applied Pickering to a case involving the disciplining of policemen for disclosing the existence of a confidential internal investigation. The conduct clearly violated an existing and otherwise valid confidentiality regulation. Yet, the court refused to sustain the discharge because the police department did not "show a state interest in confidentiality applicable on these facts which outweighs the public and individual interests in the particular statements made." 528 F.2d at 754.

III

As a probationary officer, Tygrett had no tenure of office that required protection. He could have been fired from the Department at any time the appropriate official determined that his work was "unsatisfactory," provided that he was given written notification of the reasons for and the effective date of his separation. D.C.Code § 4-105 (1973). Tygrett was sent such a notification in a dismissal letter dated July 7, 1972. Because that dismissal letter provides the only contemporaneous evidence of the Department's actual reasons for firing Tygrett, it is that letter with which our Pickering inquiry must begin. 4

The letter enumerated the following as the basis for the discharge:

That Tygrett was reported by the news media as "advocating that members of (the) Department take part in a 'Blue Flu' or 'Sick Out' as a means of protesting the lack of action by Congress regarding the proposed pay bill for the Police and Fire Departments";

That such conduct indicated to the Department an intention to...

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