856 F.2d 255 (D.C. Cir. 1988), 87-7138, Hall v. Ford

Docket Nº:87-7138.
Citation:856 F.2d 255
Party Name:Sydney O. HALL, Appellant, v. Claude A. FORD, et al.
Case Date:August 26, 1988
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 255

856 F.2d 255 (D.C. Cir. 1988)

Sydney O. HALL, Appellant,


Claude A. FORD, et al.

No. 87-7138.

United States Court of Appeals, District of Columbia Circuit.

August 26, 1988

Argued Feb. 26, 1988.

Page 256

Appeal from the United States District Court for the District of Columbia (D.C. Civil No. 86-2667).

Stanley A. Freeman, with whom Peter S. Leyton, Washington, D.C., was on the brief, for appellant.

Donna M. Murasky, Asst. Corp. Counsel, with whom Frederick D. Cooke, Jr., Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief, for appellees.

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Before WALD, Chief Judge, and SILBERMAN and BUCKLEY, Circuit judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

Sydney O. Hall appeals from the district court's dismissal of his complaint for failure to state a claim. Hall was terminated as the Athletic Director of the University of the District of Columbia. He claims that he was fired, in violation of the First Amendment, because of his criticisms of improprieties within the Athletic Department. He also argues that his termination violated the Due Process Clause and his rights under District of Columbia law. We affirm the district court's conclusion that the termination was lawful.


    Our recitation of the factual background is based on the allegations of the complaint. As the district court dismissed the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, we must assume these allegations to be true.

    Plaintiff/appellant Hall is a tenured faculty member of the University of the District of Columbia ("UDC"). In late 1983, then-President Green asked appellant to become the UDC's Athletic Director and to "bring the UDC Athletic Department into full compliance with [National Collegiate Athletic Association ("NCAA") ] and UDC rules and guidelines." Complaint at p 10, Appendix ("App.") at 3-4. Green allegedly promised Hall that Green "would support those steps [appellant] found necessary to bring the Athletic Department into compliance...." Complaint at p 11, App. at 4. Appellant accepted the appointment and served as Athletic Director until he was terminated effective December 31, 1985.

    Appellant claims that he was terminated because his "public and private" statements, Complaint at p 21, App. at 6, concerning the Athletic Department's deficiencies made him unpopular with the UDC Board of Trustees. The complaint also alleges:

    13. During his employment as UDC Athletic Director, the [appellant] publicly voiced his concerns about, and acted to investigate and, where necessary, to remedy, possible violations of NCAA and UDC rules and guidelines involving, among other things: ineligible athletes playing on UDC athletic teams; the improper authorization of an athletic scholarship to an ineligible athlete; the changing of student grades by University employees for purposes of maintaining athletic eligibility; the use of drugs by student athletes; and the violation of rules prohibiting athletic practices at unauthorized times and places.

    14. [Appellant's] efforts to investigate and to remedy possible NCAA and UDC rule and guideline violations were opposed with increasing frequency by the UDC administration and various members of the Board.


    17. On or about December 9, 1985, [appellant] was directed to resign from his position as Athletic Director by Claude A. Ford, UDC President....

    18. President Ford admitted that [appellant] was terminated because of pressure from the Board and not because of deficient performance. Indeed, President Ford acknowledged that his decision to terminate [appellant] "does not reflect unfavorably on your performance as Athletic Director ... [and] the University is most grateful for your work in solidifying the management controls in the Department."

    App. at 4-6 (last ellipsis original). Hall claims that these statements, protected by the First Amendment, were a substantial or motivating factor in his discharge. Complaint at paragraphs 20-21, App. at 6.

    Appellant further alleges that the termination without cause and without a hearing deprived him of his right to due process to protect his property interest in continued employment and his liberty interest in his reputation. He also includes a number of pendent claims. First, and related to the

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    due process claim, he argues that the discharge constituted a breach of contract of employment, under which he would only be terminated for cause. He likewise maintains that this promise of termination only for cause gave him a claim for promissory estoppel.

    Hall's final pendent claims are for defamation and wrongful termination. The defamation claim is based on a memorandum sent by Mary W. Colvin, the UDC Treasurer, to the UDC Controller ("Colvin memorandum"). The memorandum, which concerned the handling of funds from a tennis tournament, contained the following statement:

    The Controller was not informed of the event nor the deviation of [sic] the collection process. This is not the first time that the office of the Cashier has called malfeasance to the attention of the Athletic Director, e.g.; The Strawberry Festivals and other tournaments, uncontrolled ticket sales, discrepancies over renting the gymnasium facility, pricing and collection authority.

    App. at 14 (emphasis added). The record does not indicate whether the prior incidents referred to occurred during Hall's tenure as Athletic Director.

    Appellant's claim for wrongful termination is based on D.C. public policy protecting the unfettered discussion of public issues by District employees. Even though he admits that as an "excepted service" employee under District of Columbia law he had no statutory right to termination only for cause, appellant contends that he could not be terminated, as he was in this case, for reasons that contravene that policy.


    We review a dismissal for failure to state a claim de novo, for the dismissal reflects the district court's purely legal conclusion that the facts alleged do not establish a valid cause of action.

    1. First Amendment

      Appellant's First Amendment claim is governed by Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and its offspring. As later elaborated by the Supreme Court, the Pickering cause of action has four elements. First, the public employee must have been speaking on a matter of public concern. If the speech is not of public concern, "it is unnecessary ... to scrutinize the reasons for [the] discharge," Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983), at least "absent the most unusual circumstances." Id. at 147, 103 S.Ct. at 1690. Second, the court must "balance" the interests of the employee, "as a citizen, in commenting upon matters of public interest and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S.Ct. at 1734. Third, the employee must prove that his speech was a substantial or motivating factor in his discharge. Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). Finally, the government employer must be given an opportunity to prove that it would have reached the same decision even absent the protected conduct. Id.

      The first two inquiries are questions of law for the court to resolve. See, e.g., Connick, 461 U.S. at 148 n. 7 & 150 n. 10, 103 S.Ct. at 1690, n. 7 & 1692 n. 10; Joyner v. Lancaster, 815 F.2d 20, 23 (4th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 102, 98 L.Ed.2d 62 (1987). The latter two are questions of fact ordinarily left to the jury. See, e.g., Jett v. Dallas Indep. School Dist., 798 F.2d 748, 758 (5th Cir.1986).

      Appellees argued to the district court that appellant had failed to demonstrate causation, the third factor. Appellees maintained that the speech that Hall alleged led to his dismissal occurred before Ford became President, and therefore could not conceivably have led to his termination by Ford. On a motion to dismiss, however, we take as true plaintiff's factual allegations, to wit, that he "was terminated because of pressure from the Board," Complaint at p 18, App. at 6, and that various Board members disliked him because of his

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      criticism of the athletic program. Complaint at p 14, App. at 5.

      We also reject appellees' suggestion that under D.C. law governing employment of "excepted service" executives, UDC could dismiss at will employees, such as appellant, even for protected First Amendment activity:

      It is clearly established that a State may not discharge an employee on a basis that infringes that employee's constitutionally protected interest in freedom of speech. Even though McPherson was merely a probationary employee, and even if she could have been discharged for any reason or for no reason at all, she may nonetheless be entitled to reinstatement if she was discharged for exercising her constitutional right to freedom of expression.

      Rankin v. McPherson, --- U.S. ----, 107 S.Ct. 2891, 2896, 97 L.Ed.2d 315 (1987) (citations omitted). As we discuss below at 264-65, however, appellant's excepted service classification is relevant to our conclusion that he was a high-level employee who could be dismissed for speech concerning policy matters relating to his job responsibilities.

      We turn now to the first two prongs of the Pickering test, upon which the district court primarily relied. We disagree with the district court's view that Hall's speech was not of public concern, but affirm its conclusion that the government's interest in efficient administration outweighed...

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