Henry v. Department of Navy

• Decision Date: 10 May 1990
• Docket Number: No. 90-3018,90-3018
• Citation: 902 F.2d 949
• Parties: Minnie L. HENRY, Petitioner, v. DEPARTMENT OF the NAVY, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 949

902 F.2d 949

Minnie L. HENRY, Petitioner, v. DEPARTMENT OF the NAVY, Respondent.

No. 90-3018.

United States Court of Appeals Federal Circuit.

May 10, 1990.

Minnie L. Henry, Kansas City, Mo., submitted pro se.

Jonathan M. Kronheim, Dept. of Justice, Washington, D.C., submitted for respondent.

Before NEWMAN, Circuit Judge, PLAGER, Circuit Judge, and SHARP, District Judge. ^*

ALLEN SHARP, District Judge.

I.

This case is a review sought by the petitioner, Minnie L. Henry, of an adverse decision of the Merit Systems Protection Board (Board), affirming the action of the United States Navy removing her from the position of Payroll Reconciliation Technician at the United States Marine Corps Finance Center.

The petitioner was employed as a Payroll Reconciliation Technician, GS-0503-05 at the United States Marine Corps Finance Center in Kansas City, Missouri. On November 4, 1987, the petitioner was given a letter of reprimand for disrespectful conduct and insubordinate behavior for refusing a work assignment and calling her supervisor, Colonel Mutter, a "white man's nigger."

On January 11, 1988, the petitioner wrote letters to four guest speakers who were scheduled to address a celebration in honor of Dr. Martin Luther King Jr.'s birthday. This celebration was sponsored by the Center and the General Services Administration. It was to be held at the Center. These letters stated that the petitioner was a long-time employee of the Center and a former member of the EEO Advisory Committee. The letters also stated that Colonel Mutter took on "the appearance of a racist" and the Colonel excluded gospel singing from the Martin Luther King birthday celebration. The petitioner further stated that Colonel Mutter had "taken on the appearance" of showing sympathy for bigots and racists in his comments published in the Plan of the Day on January 21, March 3 and March 9, 1987. The Plan of the Day is a publication for Center employees.

Henry was removed from her job on March 3, 1988 for her refusal to perform legitimately assigned work and for her false and unfounded accusations she made against Colonel Mutter, the union and others.

As a result of her removal, the petitioner filed an appeal with the Merit Systems Protection Board Office for the St. Louis region. Settlement negotiations ensued at the suggestion of the Administrative Law Judge (ALJ). The ALJ was present at these negotiations, but they were not successful. An attempt was made between the ALJ and the petitioner to arrange a hearing date.

On April 18, 1988, the petitioner wrote a letter to the chairman of the Board alleging that the ALJ had demonstrated bias during the settlement negotiations and with his discussions concerning a hearing date. The petitioner then declined a hearing and requested the chairman to review the case. A different ALJ was assigned to the case for administrative reasons. An order was issued on April 19, 1988, which stated that a settlement conference would be held and listed the advantages. The petitioner responded that the ALJ's order was unethical and again waived her right to a hearing. The ALJ then issued an additional order stating that the settlement order was a routine and neutral document and offered petitioner the opportunity for a hearing. The petitioner elected to proceed without a hearing and both parties submitted documentation and briefs.

The ALJ found that there was no basis in fact for the petitioner's charges that Colonel Mutter took on the appearance of a racist, citing Mings v. Department of Justice, 813 F.2d 384 (Fed.Cir.1987). The ALJ found that the letter did not constitute protected speech because it did not address a matter of public concern. The ALJ further determined that if a matter of public concern had been addressed, the agency's right to maintain employee discipline outweighed any free speech interest. The ALJ also found that the petitioner had not established an affirmative defense of harmful procedural error, discrimination, reprisal or disparate treatment, and found that the penalty of removal was reasonable.

The petitioner then filed a petition for review to the full Board. The Board declined to grant review to petitioner's allegations of harmful error, retaliation or race discrimination, finding that there was no "persuasive evidence of error". The Board did, however, reopen the case to review the allegations of bias and prejudice as against the administrative judges. After a full analysis of those allegations, the Board on May 9, 1989 affirmed the decision of the ALJ, finding no merit to the charge of bias. 40 M.S.P.R. 482.

II.

The standard of review of this court is found in 5 U.S.C. Sec. 7703(c). This court may only reverse the Board when the findings or conclusions of the Board are found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law or unsupported by substantial evidence. The court must also examine whether the Board committed an error of law. Weston v. H.U.D., 724 F.2d 943, 948 (Fed.Cir.1983). It is not for this court to reweigh the evidence before the Board.

III.

The petitioner makes six allegations of error which she wishes this court to review. The first and most serious involves Amendment I of the Constitution of the United States. ¹ The petitioner claims that her letter to the guest speakers was protected speech. The petitioner further claims that her letters were true. The ALJ credited the affidavit of the Deputy EEO Officer, Mario B. Diaz, who swore that it was the EEO Committee which decided not to include gospel singing at the King celebration, contrary to the request of Colonel Mutter who did in fact want gospel singing included in that program.

The Supreme Court of the United States has established a two-part test to determine whether the speech of a public employee is protected under the First Amendment. The court must determine whether the speech addresses a matter of public concern and if so, whether the government's interest in the effective and efficient fulfillment of its responsibilities outweighs the employee's right to speak. The most recent delineation of these dual concerns is reflected in Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). In that case, an employee in a county constable's office in Texas was discharged for remarking to a co-worker after hearing of an attempt on the life of President Ronald Reagan "if they go for him again, I hope they get him". The employee in question was a data entry employee and not a commissioned peace officer. While that case involved proceedings under 42 U.S.C. Sec. 1983, its discussion of the delineations involved in free speech protections of public employees is certainly relevant here.

In the majority opinion, Justice Marshall stated:

It is clearly established that a State may not discharge an employee on a basis that infringes that employee's constitutional protected interest in freedom of speech. Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972) (citations omitted). 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. See Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 284-285, 97 S.Ct. 568, 574-575, 50 L.Ed.2d 471 (1977); (Perry v. Sindermann, supra, 407 U.S., at 597-598, 92 S.Ct., at 2697-2698 (citations omitted)).

The determination whether a public employer has properly discharged an employee for engaging in speech requires "a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968) (citations omitted); Connick v. Myers, 461 U.S. 138, 140, 103 S.Ct. 1684, 1686, 75 L.Ed.2d 708 (1983) (citations omitted). This balancing is necessary in order to accommodate the dual role of the public employer as a provider of public services and as a government entity operating under the constraints of the First Amendment. On the one hand, public employers are employers, concerned with the efficient function of their operations; review of every personnel decision made by a public employer could, in the long run, hamper the performance of public functions. On the other hand, "the threat of dismissal from public employment is ... a potent means of inhibiting speech." Pickering, 391 U.S., at 574, 88 S.Ct. at 1737 (citations omitted). Vigilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees' speech.

483 U.S. at 383-384, 107 S.Ct. at 2896.

After deciding that McPherson's statement addressed a matter of public concern, the Supreme Court majority held that the state bears a burden of justifying the discharge on legitimate grounds. The Court suggested that the total factual context of the statement be considered in this regard. Thus, Rankin held that since McPherson's duties were purely clerical and limited to the civil process function of the constable's office that there was no indication that she would ever be in a position to have any involvement with minimal law enforcement activities engaged in by that office.

Concurring, and providing the deciding vote, Justice Powell set the situation in a slightly more restrained light when he stated:

If a statement is on a matter of public concern, as it was here, it will be an unusual case where the employer's legitimate interests will be so great as to justify punishing an employee for this type of private speech...