David v. U.S.

• Decision Date: 23 June 1987
• Docket Number: No. 86-1520,86-1520
• Citation: 820 F.2d 1038
• Parties: 126 L.R.R.M. (BNA) 2287 Blanche A. DAVID, Plaintiff-Appellant, v. UNITED STATES of America, Captain R.I. Iverson, Curtis Parker, and Elaine Courtier, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1038

820 F.2d 1038

126 L.R.R.M. (BNA) 2287

Blanche A. DAVID, Plaintiff-Appellant, v. UNITED STATES of America, Captain R.I. Iverson, Curtis Parker, and Elaine Courtier, Defendants-Appellees.

No. 86-1520.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 12, 1987.

Decided June 23, 1987.

John Murcko, Oakland, Cal., for plaintiff-appellant.

Lynn K. Richardson, San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before ANDERSON, ALARCON and HALL, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

Blanche David appeals entry of summary judgment and dismissal in an action against her employer and supervisors. We affirm.

I. BACKGROUND

Blanche David (David) became employed as a procurement secretary with the Defense Logistics Agency (Agency), a federal civilian agency for the Defense Department in 1968. She continued working for the Agency and in 1981 also became a union shop stewardess for the American Federation of Government Employees, Local 2723. She held this position while working for the Agency, accruing approximately 20 hours per week as an Agency employee and approximately 15-20 hours per week as a union stewardess. In her capacity as a union stewardess, David filed grievances and performed other ministerial duties on behalf of herself and other union members. These union duties were performed largely at her workplace.

In May 1983, David began to have medical problems. As a result, she was absent from work and requested annual and sick leave for her recuperation. The Agency questioned whether David's medical excuses were valid and whether her absence from work was authorized. Finally, David's supervisors, the individual defendants named in this action, classified her as absent without leave in December 1983. On May 18, 1984, David was terminated as an employee of the Agency.

After her termination, David filed a grievance with the Merit Systems Protection Board (Board) contesting her discharge. This grievance was resolved against her by the Board and the result was affirmed on appeal. In addition to the grievance filed with the Board, David brought the present suit in federal district court. This suit alleged five separate causes of action:

1. violation of 42 U.S.C. Sec. 1985(2); ¹

2. violation of David's first amendment rights;

3. intentional infliction of mental harm;

4. back pay;

5. damages under the Federal Tort Claims Act.

The district court granted the government's motion for summary judgment on the first four causes of action and dismissed the fifth without prejudice. David appeals the grant of summary judgment on the first three causes of action ² and dismissal of the fifth.

II. STANDARDS OF REVIEW

1. Summary Judgment

A grant of a motion for summary judgment will be upheld when, viewing the evidence in the light most favorable to the losing party, we determine de novo that no genuine issue of material fact exists and the movant was entitled to judgment as a matter of law. Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983). If there are disputed issues of material fact, summary judgment cannot be granted. Allen v. A.H. Robbins Co., 752 F.2d 1365, 1368 (9th Cir.1985). As a result, we review David's first three causes of action under the de novo standard.

2. Dismissal

A complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir.1986) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)). Dismissal of a claim raises a question of law, which is reviewable de novo. Heller v. Bushey, 759 F.2d 1371, 1373 (9th Cir.1985).

The dismissal of David's fifth cause of action for a claim under the Federal Tort Claims Act was made without the reason for dismissal being given. We therefore characterize the dismissal as one for failure to state a claim under Fed.R.Civ.P. 12(b)(6), treat the facts alleged in the complaint as true, and review the dismissal de novo.

III. ANALYSIS

1. Violation of 42 U.S.C. Sec. 1985(2)

David's first cause of action alleged a violation of 42 U.S.C. Sec. 1985(2). She alleged that after she testified at a hearing involving another federal employee in January 1983, her supervisors, the named defendants, began "harassing" and "threatening" her because of her testimony. She also alleged her supervisors conspired to prevent her from testifying on a separate occasion and that ultimately she was terminated from her position for acting as a witness in the separate federal court employment case of Parodi v. Merit Systems Protection Board, 690 F.2d 731 (9th Cir.1982), which involved federal employee disablement due to work environment limitations.

In order to establish a claim under the first part of Sec. 1985(2), ³ the plaintiff must show (1) a conspiracy between two or more persons, (2) to deter a witness by force, intimidation or threat from attending court or testifying freely in any pending matter, which (3) results in injury to the plaintiff. Miller v. Glen & Helen Aircraft, Inc., 777 F.2d 496, 498 (9th Cir.1985) (quoting and citing with approval Chahal v. Paine Webber, Inc., 725 F.2d 20, 23 (2d Cir.1984)).

David has not alleged how she has been injured by her testimony in Parodi or her failure to appear in court. Allegations of witness intimidation under Sec. 1985(2) will not suffice for a cause of action unless it can be shown the litigant was hampered in being able to present an effective case. Id. Since David has not shown she was a party to the actions in which she was intimidated, she can show no injury under Sec. 1985(2).

The district court did not err in granting summary judgment on David's first cause of action.

2. Violation of David's First Amendment Rights

David's second cause of action alleges she was deprived of her first amendment right to free speech. She alleges her supervisors intimidated her and threatened to, and finally did, terminate her position because she discussed the safety, working, and air conditions at the Agency. These acts of intimidation supposedly occurred from January 1981 through May 1983. The district court granted the government's motion for summary judgment on this issue (on behalf of all the defendants), finding the exclusive remedy lay with the Civil Service Reform Act of 1978 (CSRA). We agree with the district court.

In Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), the Supreme Court held that a constitutional (nonstatutory) remedy for violation of a federal employee's first amendment rights by his supervisors would not be provided where the claim arose out of the employment relationship and was governed by sufficient "meaningful remedies" under the statutory framework provided by Congress. Id. at 386, 103 S.Ct. at 2415. We read Bush as controlling David's first amendment cause of action. If David was terminated as a result of her discussions about the health conditions at the Agency, she was not terminated "for such cause as will promote the efficiency of the [civil] service." 5 U.S.C. Sec. 7513(a). Therefore, both David's claim and her remedy fall within the scope of the CSRA and its extensive procedures for review of adverse actions. See 5 U.S.C. Sec. 7501; Lucas v. Bush, 462 U.S. at 386 n. 30, 103 S.Ct. at 2415 n. 30.

David argues Bush, and hence the CSRA, does not control her action. She distinguishes Bush because there the constitutional violations occurred while the employee was acting in the capacity of an employee. David alleges she was terminated because of statements she made in discussing the conditions at the Agency while acting as a union stewardess. She suggests a question of fact exists on whether her first amendment rights were violated while she was acting as an employee or while acting as a union representative. If the violations occurred while acting for the union, David argues Bush and the CSRA procedures do not control her cause of action. She cites Kotarski v. Cooper, 799 F.2d 1342 (9th Cir.1986), to support this position.

In Kotarski, we reviewed a claim for improper demotion of a civilian employee of the Navy for statements made by the employee which were protected by the First Amendment. We held that a Bivens action for violation of the constitutional rights alleged was permissible. Kotarski, 799 F.2d at 1350. We found the claim in Kotarski distinguishable from that in Bush v. Lucas because Bush involved an employee with sufficient statutory remedies. The Kotarski claimant, on the other hand, was on probationary status to which the availability of the remedies granted by the CSRA were denied. Id. at 1348-49. Since a probationary employee has no statutory right to appeal to the Merit Systems Protection Board, no right to a forum and no right to enforce relief, we found such an employee should not be denied the nonstatutory remedies precluded in Bush. See Kotarski, 799 F.2d at 1349; 5 U.S.C. Sec. 7501(1) (defining "employee" as one not serving a probationary period). Cf. Bush, 462 U.S. at 390, 103 S.Ct. at 2418 ("a different case would be presented if Congress had not created a comprehensive scheme that was specifically designed to provide full compensation to civil service employees who are discharged or disciplined in violation of their First Amendment rights; ... and that affords a remedy that is substantially as effective as a damages action.") (citations omitted) (Marshall, J., concurring).

Kotarski is therefore distinguishable from David's claim. The Kotarski claimant had insufficient CSRA remedies because the remedies provided were not allowed for probationary employees. David, on the other hand, is entitled to the full panalopy of procedures and remedies available under the CSRA. That she held a "dual status" as an employee and a union stewardess is not controlling since...