Egger v. Phillips
| Decision Date | 01 February 1982 |
| Docket Number | No. 80-2503,80-2503 |
| Citation | 669 F.2d 497 |
| Parties | Charles E. EGGER, Plaintiff-Appellant, v. Harlan C. PHILLIPS, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Charles E. Egger, pro se.
Bradley L. Williams, Asst. U. S. Atty., Indianapolis, Ind., for defendant-appellee.
Before PELL and CUDAHY, Circuit Judges and DUMBAULD, Senior District Judge. *
In this damage action, brought directly under the Constitution, plaintiff-appellant Charles Egger appeals pro se 1 from the district court's grant of summary judgment in favor of defendant Harlan Phillips, Egger's former supervisor at the Federal Bureau of Investigation. In his complaint and supporting papers Egger alleged that Phillips' actions as FBI supervisor violated a number of constitutional provisions, including the First, Fifth, Sixth, Ninth and Fourteenth Amendments, and were ultimately responsible for Egger's allegedly unconstitutional discharge from the FBI. On appeal Egger argues that in granting summary judgment, the district court impermissibly evaluated the documentary evidence submitted by the parties and ignored the presence of several disputed issues of material fact. Because we find that the district court incorrectly analyzed Egger's First Amendment claim, and because our examination of the record confirms the existence of disputed issues of material fact relevant to that claim, we reverse the district court's grant of summary judgment.
Egger's complaint against Phillips, individually, 2 alleges that Phillips undertook a series of activities intended to cause Egger to lose his employment as a Special Agent with the FBI. The complaint further alleges that these actions were taken in retaliation for Egger's exercise of his First Amendment rights, specifically Egger's attempts to disclose the alleged corruption of another FBI agent. In order to evaluate Egger's First Amendment claim, it is necessary briefly to review the events leading up to Egger's discharge from the FBI.
Plaintiff Egger joined the FBI as a Special Agent in January, 1971. After attending FBI training school in Washington, D.C., Egger was assigned to duty in Little Rock, Arkansas; shortly thereafter, he was transferred to the Hot Springs, Arkansas office. In September, 1972 Egger was transferred from Hot Springs to Milwaukee, Wisconsin to fill Bureau personnel needs. During January, 1973, Egger submitted a request for a hardship transfer to the Indianapolis Field Office due to the advanced age and illness of his mother and of his wife's parents. This request was granted on February 14, 1973. Egger remained at the Indianapolis Field Office from February, 1973 until his discharge in June, 1978.
In September of 1977, Egger was assigned to conduct an investigation of gambling operations in Indianapolis. Apparently as a result of this investigation, Egger became suspicious of a fellow agent in the Indianapolis office-Dean Naum. Egger alleges that his efforts to bring his suspicions about Agent Naum's activities to the attention of FBI superiors caused defendant Phillips to unconstitutionally retaliate against him during the period February 13, 1978, to June 26, 1978.
Defendant Harlan Phillips assumed the position of Special Agent in charge of the FBI's Indianapolis Field Office on February 13, 1978. Immediately upon Phillips' arrival in Indianapolis, he was presented with a written complaint from a source not identified to the district court, accusing Egger of having used a Bureau car to attend a school basketball game during a time when Egger was supposed to be on duty. 3 Phillips conducted an investigation of the complaint but did not take any disciplinary action against Egger. Instead, Phillips forwarded the results of his investigation, together with Egger's written denial of the charges, to the FBI's Office of Professional Responsibility (OPR), which had recently completed an independent investigation of the Indianapolis Field Office. 4
On February 21, 1978, Egger complained in a memorandum to Phillips that Special Agent Naum was circulating false rumors about Egger in the office, and had instructed other employees not to speak to Egger because of Egger's involvement in the OPR investigation. When Egger delivered this memo to Phillips, Phillips commented that the FBI took a dim view of employee complaints and sometimes transferred all agents involved.
On March 1, 1978, Egger provided Phillips with a memorandum suggesting that local police officers suspected Special Agent Naum of being "on the take" from organized gambling. Phillips investigated these allegations, and forwarded the results of his investigation to FBI Headquarters together with a suggestion that both Egger and Naum be transferred from the Indianapolis Field Office.
On March 8, 1978, Egger received a telephone call at work from his eleven year old daughter, informing him that someone had fired several shots through his living room window. Egger later described his daughter's emotional state on the phone as "hysterical." Egger immediately left the office in a highly agitated state without informing Phillips of the phone call. 5 Later that evening Egger reported the incident to the local police. On March 9, 1978, Phillips telephoned Egger to express his irritation at Egger's handling of the shooting incident. 6 The two exchanged heated words, and Egger eventually terminated the conversation.
On the morning of March 9, 1978, and again on March 10, Egger called the night clerk at the Indianapolis Field Office and asked to be placed on annual leave for the day. When Phillips learned that Egger had attempted to secure annual leave in this manner, without approval of the appropriate supervisor, he demanded that Egger come to the office for a discussion. Phillips also telephoned FBI Headquarters in Washington, D.C., and obtained authorization either to place Egger on administrative leave or to suspend him, as Phillips saw fit. At the meeting, Phillips informed Egger that the severity of the administrative action taken against him would be determined by the degree of Egger's cooperation. Egger indicated that he was tired of being interrogated by the FBI and suggested that the whole matter might be better handled in federal court. At the close of the meeting Phillips indicated that Egger was being suspended, but later changed the designation to administrative leave.
On March 11, 1978, Phillips telephoned several former colleagues of Egger's to inquire about Egger's past performance and mental stability. At least one of the colleagues concurred in Phillips' suggestion that a psychiatric examination of Egger might be in order. Phillips then sent a priority teletype to Washington describing the shooting incident, Egger's behavior and Phillips' inquiries, and requesting authorization for an immediate fitness for duty examination including a psychiatric exam. Such authorization was granted on March 15, 1978.
On March 18 and 19, 1978, Egger and his wife underwent a psychiatric examination. The examination did not disclose any major personality irregularities, and the psychiatrist informed Phillips that he had found nothing which would disqualify Egger from serving as a Special Agent. Phillips advised Egger to return to duty on March 21, 1978.
Over the course of the next few days, Egger submitted several memoranda to Phillips, detailing his suspicions regarding Special Agent Naum. Egger also informed Phillips that he had prepared a 30-page report containing allegations against personnel in the Indianapolis Field Office, which he intended to furnish either to the Director of the FBI or to the Department of Justice. On March 22, 1978, Egger was the subject of a disciplinary write-up based on his conduct following the March 9th shooting incident. 7 On March 23, 1978, Phillips sent a priority teletype to FBI Headquarters describing the controversy surrounding Egger and Naum, and urging that both be transferred from the Indianapolis office as soon as possible.
On April 25, 1978, Egger's attorney met with a Deputy Attorney General in Washington, D.C. and delivered a lengthy memorandum from Egger detailing various allegations against FBI personnel. 8 On May 1, 1978, FBI Headquarters suspended Egger without pay from May 2, 1978, to May 9, 1978, and placed Egger on probation for a 90-day period. 9 On May 1, 1978, Egger received a special ninety-day performance rating of "unsatisfactory." This evaluation was prepared by Egger's immediate supervisor, Dick Harman, who had initially recommended that Egger be given a performance rating of "excellent," the same rating Egger had received in his last evaluation. After discussing the matter with Phillips, Harman changed his recommended rating from "excellent" to "unsatisfactory." 10
On May 10, 1978, Egger was advised that he was being transferred to the FBI's Chicago Field Office. On May 17, 1978, Egger sent a letter to FBI Headquarters requesting that his transfer be reconsidered due to the ill health of his mother and his wife's parents. On May 14, 15, and 17, reports alluding to Egger's situation appeared in the local media. On May 17, Phillips sent a memorandum to the Assistant Director of the FBI accusing Egger of leaking information to the press, and stating that Egger's departure from the Indianapolis Field Office was "eagerly awaited." 11 On May 19, 1978, Phillips sent a memo to the Director of the FBI recommending that Egger's request for reconsideration of his transfer be denied.
Articles concerning the Indianapolis FBI office and various organized crime topics appeared in the news media on May 18, 19, 20, 21, 23 and 24. On May 23, 1978, Phillips called Egger into his office and attempted to question him about the alleged press leaks. Since Egger had previously signed a waiver of rights form and since Phillips had indicated that some of the questions might relate to possible criminal...
To continue reading
Request your trial
-
Waters v. Chaffin
...barroom chatter. Such conversation generally is not subject to sanction. See Wiegand v. Seaver, 504 F.2d at 306; Egger v. Phillips, 669 F.2d 497, 503-04 (7th Cir. 1982); Yoggerst v. Stewart, 623 F.2d 35, 40 (7th Cir. 1980); Clary v. Irvin, 501 F.Supp. at 709 n.9. We do not doubt that the de......
-
Orr v. Crowder
...674 F.2d 990 (3d Cir.1982) (Internal revenue officer); Bowen v. Watkins, 669 F.2d 979 (5th Cir.1982) (Police officers); Egger v. Phillips, 669 F.2d 497 (7th Cir.1982) (FBI agent).9 This point was expressed as follows in Pickering:"At the same time it cannot be gainsaid that the State has in......
-
Morris v. Washington Metropolitan Area Transit Authority
...fired. Givhan v. Western Line Consolidated School District, 439 U.S. 410, 417, 99 S.Ct. 693, 697, 58 L.Ed.2d 619 (1979); Egger v. Phillips, 669 F.2d 497 (7th Cir.1982). In order to impose liability on a political subdivision, as distinct from its employees or officials, a section 1983 plain......
-
In re Pulley
...v. Big O Warehouse, 741 F.2d 160, 163 (7th Cir.1984); Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir.1984); Egger v. Phillips, 669 F.2d 497 (7th Cir.1982). A moving party meets this burden by affirmatively demonstrating from the record before the Court that there is no evidence......