Jackson v. United States

• Decision Date: 15 July 1970
• Docket Number: No. 291-69.,291-69.
• Citation: 192 Ct. Cl. 765,428 F.2d 844
• Parties: Horace Ray JACKSON v. The UNITED STATES.
• Court: U.S. Claims Court

192 Ct. Cl. 765, 428 F.2d 844 (1970)

Horace Ray JACKSON v. The UNITED STATES.

No. 291-69.

United States Court of Claims.

July 15, 1970.

Reginald H. Alleyne, Jr., Albuquerque, N. M., attorney of record for plaintiff.

Judith Yannello, Washington, D. C., with whom was Asst. Atty. Gen., William D. Ruckelshaus, for defendant. C. Michael Sheridan, Washington, D. C., of counsel.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON, and NICHOLS, Judges.

ON DEFENDANT'S MOTION AND PLAINTIFF'S CROSS MOTION FOR SUMMARY JUDGMENT

NICHOLS, Judge.

This suit for back pay by a discharged civilian employee of the Government, a veteran, is before us on cross motions for summary judgment. We conclude that both motions must be denied because of an issue of material fact which demands further evidence for its resolution.

Plaintiff's employment was as a Teacher, GS-9, at the Job Corps Conservation Center, Grants, New Mexico. The Forest Service of the Department of Agriculture managed this institution, and its function was the education and training of disadvantaged youth. Plaintiff's discharge was effective one day before he had completed his probationary year, and as a result of this, the normal review processes of the Civil Service Commission were unavailable to him. But he believed the action to be racially motivated, and therefore complained of racial discrimination under Executive Order No. 11246 (30 Fed.Reg. 12319 (1965)). He is a Negro. The procedures applicable to such cases were followed: ex parte investigation by the Agency, Agriculture (5 C.F.R. § 713.214 (Supp.1967)), hearing by an Agency official, the Equal Employment Officer, or his designee (§ 713.216), decision (§ 713.219), Appeal to the Board of Appeals and Review of the Civil Service Commission (hereinafter BAR) (§ 713.222), which reviewed the papers and affirmed without a hearing, as no new one was required (§ 713.224). The decision went against the plaintiff at all stages and this action followed.

The amended petition alleges that the discharge was "in violation of plaintiff's First Amendment right to petition the Government for redress of grievances * * *." While other possible grounds of illegality are not formally waived, plaintiff stresses them so slightly, and urges so little in their support, that we do not discuss them further, and deal with the action, as it practically is, solely to vindicate the First Amendment right.

This is a claim "founded upon the constitution" of which we have jurisdiction by virtue of 28 U.S.C. § 1491(1), a jurisdiction we have exercised in a recent backpay suit similar to this one. Swaaley v. United States, 376 F.2d 857, 180 Ct.Cl. 1 (1967). Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), reasons along somewhat parallel lines and contributes to our belief that Swaaley was correctly decided. Plaintiff says Swaaley controls as a precedent. Defendant distinguishes it on the facts. That is the one issue this court must decide.

Plaintiff says he was fired because of a letter he had written to Mr. Harry Miller, who was a member of the Office of Inspection of the Office of Economic Opportunity (OEO), which in turn was part of the Executive Office of the President. The OEO had overall policy responsibilities respecting certain programs, including the Job Corps, even though actual operation was in the Forest Service, in the case of this Grants, New Mexico, Center. Mr. Miller had visited the Center in course of an inspection, talked to plaintiff, and invited him to communicate directly. Plaintiff could well have believed that Mr. Miller could redress his grievances or would bring the letter to the attention of someone else who could.

Plaintiff wrote the letter soon after learning he would not be continued in his temporary post of Acting Principal Teacher, but would instead revert to ordinary teaching. The letter reports this to Mr. Miller and asks the OEO to look into it. If they had no jurisdiction, he was going to complain to the Civil Service Commission, OEO, NAGE (a union), American Legion, Governor of Texas, Senators and Representatives of Texas (he was himself of Texas origin), the United States President, and Civil Rights Organizations. He thought the Center should get rid of its Director and other officials to make it "run like it should." The Center needed assistance to get in line with "good policies and practices." Too many people in high positions had come from the other side of the tracks and had no understanding of the problems the "Black Boys have had to face."

This letter is less defamatory than Swaaley's in that supervisory officials are pictured as well-meaning bunglers instead of as crooks. That is not a significant distinction. If plaintiff had carried out his threat to scatter his complaints so broadcast, their credibility as petitions for redress of grievances would have been impaired, but he had not done so when fired. Some immoderation of expression might have been expected and discounted in light of plaintiff's deeply felt commitment, which the management level well understood, to the success of the Center in rehabilitating disadvantaged youth of plaintiff's race.

Plaintiff finds proof that he was fired as reprisal for this letter in the following circumstances: he testified at the hearing without contradiction that Mr. Figart, the Center Director, called him in and said he would terminate him before the probationary period was up because of the letter, saying "This letter will haunt you." The Director said, according to plaintiff, that he could not terminate plaintiff for inefficiency because he worked harder than anyone.

Mr. Figart was present at the hearing and also testified, having been called by plaintiff as an adverse witness. This was before plaintiff testified, but he must have been well aware of plaintiff's version of the conversation because it is included, substantially as testified to, in the report of the investigation made per § 713.214, supra, of which Mr. Figart was aware. In the same report there also appears Mr. Figart's version according to which he uttered the words "This letter will haunt you" with reference to another letter altogether. But he admitted he had a copy of the Miller letter at that time. This material is, of course, unsworn hearsay, and even when admitted in a nonjudicial hearing is of a low order of probative value. Jacobowitz v. United States, 424 F.2d 555, 191 Ct.Cl. 444 (decided April 17, 1970). Plaintiff argues that since Mr. Figart did not repeat it at the hearing, plaintiff's sworn testimony is uncontradicted and must be taken as true. The fact is, counsel on neither side asked Mr. Figart about the conversation, nor did the Examiner, and he volunteered nothing about it.

Defendant urges here that the burden of proof was on plaintiff and if he did not...