Bean v. Darr

• Decision Date: 22 February 1973
• Docket Number: No. C-173-WS-72.,C-173-WS-72.
• Citation: 354 F. Supp. 1157
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Edward D. BEAN, Plaintiff, v. David W. DARR, Individually and as Chairman of the Forsyth County Board of Commissioners, et al., Defendants.

354 F. Supp. 1157

Edward D. BEAN, Plaintiff, v. David W. DARR, Individually and as Chairman of the Forsyth County Board of Commissioners, et al., Defendants.

No. C-173-WS-72.

United States District Court, M. D. North Carolina, Winston-Salem Division.

February 22, 1973.

Renn Drum, Jr., Winston-Salem, N. C., for plaintiff.

P. Eugene Price, Jr., County Atty., Forsyth County, Winston-Salem, N. C., James L. Blackburn, Asst. Atty. Gen., State of North Carolina, Raleigh, N. C., for defendants.

MEMORANDUM ORDER

WARD, District Judge.

Plaintiff, a former Sanitarian II with the Forsyth County Health Department, seeks relief from and damages for his allegedly improper dismissal on November 8, 1971. The case is before the Court on the motion by defendant James Dixon for summary judgment, and the motion to dismiss and motion for summary judgment by defendants David W. Darr, Dr. James A. Finger, Martin W. Ericson, and Gilbert T. Davis.

Plaintiff predicates jurisdiction of the action upon Title 42 U.S.C. §§ 1983, 1984, 1985, 1986, 1987 and 1988; Title 18 U.S.C. § 1343; Title 28 U.S.C. §§ 1331 and 1343; and the Fourteenth Amendment to the United States Constitution.

Plaintiff, Edward D. Bean (Bean), was employed by the Forsyth County Health Department in January 1966. The affidavit of Martin W. Ericson, Chief of the Bureau of Environmental Health of the Forsyth County Health Department for the past thirteen years, revealed that on May 13, 1968, Bean was counseled as to his unacceptable conduct in his position and advised that if his misconduct continued, he would be given two weeks notice to voluntarily find other employment. On June 18, 1969, Bean was suspended by Ericson for a three-day period for insubordination in Ericson's office on June 16, 1969. Bean was again counseled on March 22, 1971, by Ericson as to his unacceptable conduct. Bean was warned at that time of the possibility of firm administrative action being taken. On October 27, 1971, Bean became excessively abusive toward his supervisor, Ericson, according to the affidavit of Ericson. On November 8, 1971, Ericson notified Bean that his services as a Sanitarian II with the Bureau of Environmental Health were terminated by means of a letter containing the following sentence:

For several years and on many occasions you have disrupted office procedure, shown gross disrespect and insubordination to your supervisors and have upset many of your fellow employees.

On February 17, 1972, the Board of County Commissioners of Forsyth County conducted a hearing with regard to the dismissal of Bean as an employee of the Forsyth County Health Department. Present at that hearing were Bean and his attorney, the Personnel Director, the Forsyth County Health Director, the Chief of the Bureau of Environmental Health for Forsyth County, and the Forsyth County Manager. The entire Board of Commissioners was also present at the hearing, and at the conclusion thereof, unanimously confirmed the dismissal of Mr. Bean as a Forsyth County employee, the Chairman of the County Board of Commissioners abstaining from voting.

The plaintiff appealed this ruling before the Forsyth County Board of Commissioners to the North Carolina State Personnel Board, which conducted another hearing concerning the dismissal of Mr. Bean on March 21, 1972. At the conclusion of that hearing the Personnel Board voted to affirm the decision of the Forsyth County Board of Commissioners, confirming the dismissal of Bean as a Forsyth County employee.

In his complaint the plaintiff prays that the Court: (1) Reinstate him with all rights and privileges; (2) award him retroactive compensation to the date of dismissal; and (3) award him $100,000 damages for injury to his reputation, professional standing, and permanent impairment or destruction of his earning capacity in his chosen vocation. Plaintiff has demanded a jury trial, and prays for the award of counsel fees.

Chapter 126 of the North Carolina General Statutes establishes for the government of the State a system of personnel administration under the Governor. In Chapter 126 of the North Carolina General Statutes, under Article 1, Sec. 126-1, a state personnel system is established and charged with the responsibility for personnel administration of state and local employees. Under Article 3 of Chapter 126, in Section 126-11, an exemption is made to Article 1 by the following language:

§ 126-11. Local personnel system may be established.—The board of county commissioners of any county which shall establish and maintain a personnel system for all employees of the county subject to its jurisdiction, which system is found from time to time by the State Personnel Board to be substantially equivalent to the system established under article 1 of this chapter for employees of local welfare departments, public health departments, and mental health clinics, may include employees of these local agencies within the terms of such system. Employees covered by that system shall be exempt from the provisions of article 1 of this chapter. (1965, c. 640, s. 2.)

The Forsyth County Commissioners adopted a "Personnel Policy" which became effective on July 1, 1962. This personnel resolution has since been supplemented and amended from time to time by the Board of County Commissioners, and is in effect at this time. The Court finds as a fact that the County Commissioners of Forsyth County have established and maintained a personnel system for all employees of the county subject to its jurisdiction, and that Forsyth County employees covered by that personnel system are exempt from the provisions of Article 1 of Chapter 126 of the North Carolina General Statutes.

Having found that Forsyth County has an acceptable personnel plan, there is no question of the authority of Forsyth County to terminate the employment of Edward D. Bean, unless it did so in deprival of due process of law. The inquiry touching due process must be broken into three areas: (1) whether the county acted arbitrarily or capriciously, (2) whether the county acted for constitutionally impermissible reasons, such as the exercise of rights protected by the Constitution, and (3) whether the county acted without affording Edward D. Bean a proper hearing.

It is apparent to this Court that, in light of the evidence presented for the consideration of the County Commissioners of Forsyth County, the decision to terminate the employment of the plaintiff was supported by substantial evidence introduced at the hearing held on February 17, 1972.

On Page 14 of the Forsyth County Personnel Resolution, under Article III, Section 7, is found the criteria for demotion or dismissal as follows:

The County Manager may remove such officers, agents and employees as he may appoint, and upon removal shall report the same to the next meeting of the Board of County Commissioners. A permanent employee whose work is not satisfactory over a period of time shall be notified in what way his work is deficient and what he must do if his work is to be satisfactory. If the permanent employee continues to be negligent or fails to do work up to the standard of the classification held, the department head shall recommend to the County Manager that the employee be demoted or dismissed.

Any employee whose work is not satisfactory or who is guilty of gross negligence, disloyalty to the County, or defects of character that bring discredit upon the County may be suspended, demoted or dismissed by the County Manager.

The record is replete with instances in which Bean was notified in what ways his work was deficient and what he must do if his work was to be satisfactory. This Court fails to discern arbitrary or capricious action in the recommendation by Martin W. Ericson and Gilbert T. Davis, supervisors of Edward D. Bean, that Bean's employment with Forsyth County be terminated, nor does this Court discern arbitrary or capricious action in the termination of Bean's employment by James A. Finger in acting upon the recommendation of Bean's supervisors. Nor can the actions of the Forsyth County Board of Commissioners or David W. Darr be construed as arbitrary or capricious in light of the personnel record of Edward D. Bean, and the evidence adduced at the hearing held on February 17, 1972.

The Court turns now to a consideration of whether the termination of Bean's employment sprang from constitutionally impermissible reasons. In Paragraph 21, subparagraph (b), of his complaint, the plaintiff alleges that he was denied his constitutionally protected right of freedom of speech as follows:

(b) Plaintiff was denied employment as a Sanitarian not for the reasons asserted, but because of the exercise of his right of freedom of comment about conditions at his place of employment;

The First Amendment guarantees freedom of expression to ideas other than those of momentous magnitude or universal importance. Normally, discussions of methods to improve efficiency in the administration of a department of municipal government, such as the Bureau of Environmental Health of the Forsyth County Health Department, are as constitutionally protected as the wearing of black armbands to protest the involvement of this country in Vietnam. Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Also,

the guarantees for speech and press are not the preserve of political expression or comment upon public affairs, essential as those are to healthy government. Time v. Hill, 385 U.S. 374, 388, 87 S.Ct. 534, 542, 17 L.Ed.2d 456, 467 (1967).

The fact that a Sanitarian II isn't expressing ideas of nationwide significance doesn't remove his utterances from the ambit of protected speech.

No suggestion can be found in the Constitution that the freedom there guaranteed for speech and the press bears an inverse ratio to the timeliness and importance of the ideas seeking expression. Bridges v. California, 314 U.S. 252, 269, 62 S.Ct.

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