Dynes v. Army Air Force Exchange Service

• Decision Date: 24 October 1983
• Docket Number: No. 83-7111,83-7111
• Parties: Richard E. DYNES, Plaintiff-Appellant, v. ARMY AIR FORCE EXCHANGE SERVICE, Defendant-Appellee. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1495

720 F.2d 1495

Richard E. DYNES, Plaintiff-Appellant, v. ARMY AIR FORCE EXCHANGE SERVICE, Defendant-Appellee.

No. 83-7111

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

Oct. 24, 1983.

Harold Howell, Howell, Sarto & Howell, Prattville, Ala., for plaintiff-appellant.

Kenneth E. Vines, Asst. U.S. Atty., Montgomery, Ala., Kenneth B. Knowles, Col. USAF, Gen. Counsel, Dallas, Bryan M. Caldwell, LTC USAF, Asst. Gen. Counsel, Dallas, Tex., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Alabama.

Before HATCHETT, ANDERSON and CLARK, Circuit Judges.

PER CURIAM:

We must decide whether the district court properly rejected the appellant's Bivens claim based on an alleged violation of his due process rights in termination of employment proceedings. We affirm.

FACTS

Richard E. Dynes was employed with the Army and Air Force Exchange Service (AAFES), an integral part of the Departments of the Army and the Air Force. AAFES is under the jurisdiction of the Chiefs of Staff of the United States Army and the United States Air Force. AAFES operates in support of Army and Air Force personnel throughout the world, providing necessary merchandise and services not otherwise furnished through appropriated funds.

On January 30, 1980, Dynes received a warning letter regarding his job performance. At the end of the sixty-day warning period, in a March 31, 1980 Performance Evaluation Report, Dynes's supervisor noted his performance as unsatisfactory. Under the applicable Army and Air Force regulations, when an employee's performance during a warning period is unsatisfactory, the employee may be transferred, downgraded, or separated. Paragraph 3-11c, Army Regulations (AR) 60-21/Air Force Regulations (AFR) 147-15. Beachler, the management official passing on Dynes's job performance, processed a separation action for Dynes because of unsatisfactory job performance. On April 30, 1980, Dynes received an Advance Notice of Separation for Unsatisfactory Performance. After consideration of Dynes's response, management issued a final decision to terminate his employment. Dynes, exercising his right under the relevant regulations, appealed the decision and requested an evidentiary hearing. p 3-34, AR 60-21/AFR 147-15.

On September 24 and 25, 1980, at the evidentiary hearing, Dynes was represented by counsel, given a full opportunity to examine the documentary evidence relied upon by management, allowed full cross-examination of all witnesses, presented documentary evidence on his own behalf, called witnesses in his own behalf, and presented argument. On October 24, 1980, R.J. Birkmeyer, the hearing examiner, submitted findings and recommendations to the appellate authority finding that management had produced "... some evidence to support each of [its] allegations." Birkmeyer recommended that the appeal be denied and the termination sustained. This recommendation was approved by Brigadier General Norris W. Overton, Deputy Commander of AAFES, acting as appellate authority.

On November 12, 1980, Dynes sent United States Senator Howell Heflin a letter requesting that the Senator conduct an inquiry into his employment termination hearing. Senator Heflin's office forwarded the letter to AAFES, with a request that the matter be reviewed. AAFES forwarded the inquiry from Senator Heflin to Birkmeyer because, as hearing examiner, he was most familiar with Dynes's appeal. On December 9, 1980, after Birkmeyer reported to him, the AAFES Commander responded to Senator Heflin's inquiry.

On January 8, 1981, after having read a copy of the AAFES Commander's December 9, 1980, letter, Dynes wrote directly to the AAFES Commander. In his letter to the Commander, Dynes pointed out factual errors in the AAFES Commander's December 9, 1980 letter:

1. Promotion of plaintiff to universal salary plan (USP) grade 5, document control assistant position, had occurred in September 1970, rather than in 1972 as stated in the response to Senator Heflin.

2. Plaintiff's submission of a resume of employment history and experience had occurred in 1972 rather than at the time of plaintiff's initial employment with AAFES as stated in the response to Senator Heflin.

3. The recitation of the plaintiff's attempts to obtain reassignment out of the accounting career field was allegedly incomplete.

The district court found that the remainder of Dynes's January 8, 1981 letter was an argumentative restatement of his positions at his termination hearing 1. He questioned the accuracy of the statement that the plaintiff's job had been abolished in 1972, contending that the job had not been abolished, but rather, had been reestablished in another office as part of the RIF reorganization.

2. He expressed displeasure that a comment in the letter to Senator Heflin regarding a promotion of plaintiff to UA-7 in 1973, did not reflect the fact that the promotion in question had been a two-grade advancement and had required the concurrence of headquarters.

3. He argued over the correct interpretation to be given the contents of the experience resume provided by the plaintiff in 1972.

4. He questioned the designation of a job dealing with the collection of dishonored checks, to which plaintiff was transferred in March, 1975, in a training status, as an accounting technician position.

5. He reargued his position regarding the inconsistency inherent in approving a step salary increase for the plaintiff shortly before issuing an unsatisfactory performance evaluation report on plaintiff.

6. He complained about the failure to favorably act upon plaintiff's supervisor's recommendations as well as the plaintiff's requests for transfer out of the accounting career field.

7. He complained about the issuance of previous warning letters in 1978 and 1979 and the attendant 'cloud' under which the plaintiff was forced to work.

8. He complained of a failure to advise the plaintiff of a procedural error that caused an earlier separation for unsatisfactory performance to be overturned in January, 1980.

9. He complained that, following the plaintiff's reinstatement in January, 1980, another warning period was immediately instituted to be processed and monitored by the same individuals who had been responsible for the previous defective separation action.

On February 3, 1981, AAFES's general counsel, acting for the Commander, declined to respond to Dynes's January 8, 1981, letter because its arguments pertained to this law suit.

We must specifically determine whether the district court's grant of partial summary judgment and dismissal of Dynes's complaint were correct, in light of Dynes's due process claims regarding termination of his employment.

MOTION FOR SUMMARY JUDGMENT

The district court granted the defendants' motion for partial summary judgment on Dynes's constitutional claim that his right to due process was violated because the defendants conspired to terminate his employment. Based on Bush v. Lucas, the district court concluded the defendants were entitled to judgment as a matter of law. Bush v. Lucas, 647 F.2d 573 (5th Cir.1981), aff'd. --- U.S. ----, 103 S.Ct. 2404, 76 L.Ed.2d 648 (June 13, 1983).

In reviewing a summary judgment, we apply the same legal standards which control the district court in determining whether summary judgment is appropriate. Impossible Electronic Techniques, Inc. v. Wackenhut Protective Systems, Inc., 669 F.2d 1026, 1030 (5th Cir.1982); Environmental Defense Fund v. Marsh, 651 F.2d 983, 991 (5th Cir.1981). Summary judgment is proper if "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The evidence is reviewed in the light most favorable to Dynes, the party opposing the motion for summary judgment. Sweat v. Miller Brewing Company, 708 F.2d 655, 656 (11th Cir.1983); Impossible Electronic Techniques, Inc. v. Wackenhut Protective Systems, Inc., 669 F.2d 1026 (5th Cir.1982).

Bush v. Lucas is dispositive regarding Dynes's due process claim. Bush involved a federal employee's action for damages against the director of the George C. Marshall Space Flight Center, a major facility operated by the National Aeronautics and Space Administration (NASA). Bush, an aerospace engineer for NASA, made a number of public statements to the media which were highly critical of the agency. The director of the center demoted Bush for In Bush, the Supreme Court stated that there are two situations in which a Bivens action may be defeated. The first, applicable here, is where "special factors counselling hesitation in the absence of affirmative action by Congress," are present. In discussing Bush's prayer for nonstatutory damages, the Court noted that a federal...