Fiorillo v. U.S. Dept. of Justice, Bureau of Prisons

• Decision Date: 02 July 1986
• Docket Number: No. 85-1955,85-1955
• Citation: 795 F.2d 1544
• Parties: Francis M. FIORILLO, Petitioner, v. U.S. DEPARTMENT OF JUSTICE, BUREAU OF PRISONS, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 1544

795 F.2d 1544

Francis M. FIORILLO, Petitioner, v. U.S. DEPARTMENT OF JUSTICE, BUREAU OF PRISONS, Respondent.

Appeal No. 85-1955.

United States Court of Appeals Federal Circuit.

July 2, 1986.

Bruce M. Stark, of Long Beach, Cal., argued for petitioner.

Linda Maramba, Dept. of Justice, of Washington, D.C., argued for respondent. Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Thomas W. Petersen and Sara V. Greenberg, Commercial Litigation Branch, Dept. of Justice, of Washington, D.C., were on the brief for respondent. George M. Beasley, III, Dept. of Justice, of Washington, D.C., entered an appearance for respondent.

Before DAVIS, Circuit Judge, MILLER, Senior Circuit Judge, and NEWMAN, Circuit Judge.

JACK R. MILLER, Senior Circuit Judge.

Francis M. Fiorillo petitions for review of an arbitration decision, FMCS No. 83K/26986, November 14, 1984 (Chance, Arbitrator), in which the arbitrator sustained the action of the Bureau of Prisons ("agency") suspending and demoting petitioner. We affirm.

BACKGROUND

None of the facts is in dispute. Petitioner, the grievant below, is a Correctional Officer with the agency at the Federal Correctional Institute at Terminal Island, California. Before July 24, 1983, he was a Senior Officer Specialist, GS 007-8. A Senior Officer Specialist has contact with many inmates and works independently with only a minimum of supervision and at times trains and supervises lower level correctional officers. A Senior Officer, the position to which petitioner was demoted, has fewer responsibilities and a commensurate lower salary, GS009-7.

For several years prior to the conduct which is the basis of the agency's adverse action, petitioner had made some allegations of impropriety on the part of the supervisory staff of the prison, both privately (to prison and other federal officials) and to the press. Some of the statements were determined to be well-founded and some were found not to be; petitioner was disciplined at least once for an ill-founded allegation. It is not contested that during those years there were allegations (by persons other than petitioner) of wrongdoing at the prison which were made public and that such public allegations were not uncommon.

Beginning in the fall of 1982, petitioner made requests for a regular assignment to an "outside" post to alleviate a high blood pressure condition chronicled by both the prison medical staff and petitioner's private physician. (Such a post apparently involves the patrol of the perimeter of the prison to watch for attempted escapes and requires little contact with inmates and other staff and no supervisory responsibilities.) On November 4, 1982, petitioner asked the warden, Jerry T. Williford, for assignment to an outside post because he believed that there was a conspiracy among the staff to "frame or discredit" him and because the prison's medical staff had recommended that he seek medical attention for his high blood pressure. Williford placed petitioner on leave with pay stating that he was concerned about the effectiveness of petitioner's performance of his duties.

On November 11, 1982, petitioner submitted a letter from his private physician stating that petitioner suffered from high blood pressure and that, if petitioner were to retain his then-present assignments, his health would be put at risk. The next day, Williford ordered petitioner to submit to medical and psychiatric fitness-for-duty examinations. All of these were negative, although the agency-designated psychiatrist suggested that petitioner be maintained at the outside post to be removed from staff involved with petitioner in a pending lawsuit.

On December 23, 1982, the acting warden ordered petitioner back to duty with no On April 26, 1983, petitioner initiated litigation in the United States District Court for the Central District of California ¹ against the Bureau of Prisons and individual prison employees, alleging improper, retaliatory discipline by the agency (placing him in "locations at [Terminal Island] which would be more stressful than the already stressful location" in which he was working). He alleged that this action resulted in "career impairment" arising in part from the agency's failure to respond to alleged examples of "corruption" he had discovered in the prison and had disclosed. While off-duty, he informed the press of his action, and, on April 27, five or six local papers published articles about his case including some disparaging comments by him about the prison, the staff in general, and his chances for career advancement.

                restrictions.  On March 23, 1983, petitioner again requested, and was denied, duty at an outside post.  On April 1, 1983, petitioner's physician gave petitioner a letter stating that he had examined petitioner and "placed him on total disability until May 2, 1983.  My diagnosis ... is Hypertension, which is definitely job-related."    Although the physician would not give Williford information concerning petitioner over the phone, he agreed to answer the warden's questions posed in writing.  However, he never responded when these were sent to him on May 27, 1983
                

On May 4, 1983, while petitioner was on approved sick leave, he hand-delivered two memoranda to the warden concerning alleged incidents that occurred at the facility in 1980 and 1982. Afterwards, he visited and spoke with several of the staff while they were on duty.

On June 13, 1983, the warden gave notice to petitioner of his proposed suspension and demotion to Senior Officer, based on three charges: (1) misuse of sick leave, (2) unwillingness to perform his job, and (3) conduct which undermines the efficient operation of the institution. With respect to the latter, three specifications were stated in support of the proposed adverse action: first, that petitioner's visit with other staff members (while he was on approved sick leave) was distractive and caused them to be inattentive to their duties; second, that petitioner had asserted that some of the other staff members were conspiring to discredit him; and third (the decisive issue here), in the warden's words,

[o]n April 27, 1983, two local newspapers published articles in which you were quoted expressing your personal opinions about the integrity of staff of this institution and about your own chances for promotion. Your statements reflect negatively on this institution and damage the public's confidence in our ability to carry out our mission. Further, Program Statement 1480.2 ² and Institution Supplement 1480.2, both prohibit staff members from releasing information to the news media. I am aware that you have initiated contact with representatives of the press on several occasions and offered your personal opinions about operations and management of this institution. Your actions are a violation of Federal Prison System policies on contacts with the news media and they are also in direct violation of my specific instructions to all staff at a general recall that staff members are not to contact the news media unless specifically designated by me to make such contact.

By expressing your personal opinions for publication, you have also refused to conform with Federal Prison System standards of employee conduct which require you to avoid any action which might reflect adversely on the Government. ³

Later in the same notice, Williford stated that The allegations you have made have all been thoroughly investigated by this and other agencies. Your refusal to accept the results of the investigations and your continuing to raise these issues forms the basis for this charge.

Also in the same notice was the warden's statement that:

Your actions which have undermined the efficient operation of the institution demonstrate that you have not been supportive of this or previous administrations. Federal employees have numerous appeal procedures which can be used to resolve complaints, yet you have chosen to air your grievances in a public forum which has reflected negatively on this facility and the integrity of its staff.... [B]y your actions specified in these charges, you have not demonstrated ... required personal qualities.

On July 19, 1983, the Regional Director of the agency sustained the charges alleged by Williford, stating:

After careful consideration, I find the charges sustained and fully supported by the evidence in the adverse action file.... Your actions in this matter have damaged your credibility and effectiveness as a correctional worker and I believe these actions will have the desired corrective effect.

Petitioner's suspension and demotion were effective July 24, 1983. He then grieved his case, pursuant to the negotiated grievance procedures provided in his union's collective bargaining agreement with the agency, and the matter was assigned for arbitration.

The arbitrator denied petitioner's grievance. However, he explicitly refused to sustain the first and second agency charges above relating to petitioner's sick leave misuse and his alleged unwillingness to perform his job. With respect to the first charge, the arbitrator concluded that it "was not only based upon a de minimis act, but is contrary to the Agency's own operating instructions and is not a valid reason for suspension or demotion." Regarding the second charge, the arbitrator concluded that although petitioner "demonstrated a continuing reluctance to continue his inside assignments ... he was within his contractual rights to do so, and could reasonably expect ... consideration for what his physician concluded was a job-related illness." The agency has not cross-appealed from the decisions on those charges.

With respect to the third charge, the arbitrator discussed petitioner's contention that the First Amendment protected his statements to the press and that the adverse action was a reprisal for petitioner's "whistleblowing," concluding that--

[t]he Agency did clearly established [si...