Major v. Hampton

• Decision Date: 23 February 1976
• Docket Number: Civ. A. No. 75-1634(C).
• Parties: Robert MAJOR, Jr., Plaintiff, v. Robert E. HAMPTON, Chairman, et al., Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

413 F. Supp. 66

Robert MAJOR, Jr., Plaintiff, v. Robert E. HAMPTON, Chairman, et al., Defendants.

Civ. A. No. 75-1634(C).

United States District Court, E. D. Louisiana.

February 23, 1976.

Bruce C. Waltzer, New Orleans, La., for plaintiff.

Michaelle F. Pitard, Asst. U. S. Atty., New Orleans, La., for defendants.

ALVIN B. RUBIN, District Judge:

An Internal Revenue Service agent, who was classified in the federal civil service, was, after proper notice and hearing, discharged on the basis that his actions in renting and using an apartment in New Orleans, together with three other males, for the purpose of sexual relationships with consenting females during off-duty hours, was behavior that "tends to discredit himself or the Service." He challenges the dismissal as violating his constitutional rights to due process of law and to privacy.

It is evident that some types of off-duty conduct may seriously jeopardize the ability of governmental employees properly to perform their duties or the capacity of the agencies employing them adequately to discharge their functions. Therefore, it has long been established that governmental employees may be discharged for such conduct. But the government, even when it is acting as an employer, does not have an unlimited license to inquire into its employees' private lives. Fourteen million persons are employed by federal, state and local governmental bodies; their rights are seriously affected by definition of the kinds of off-duty conduct that may subject them to discharge and of the extent to which their off-duty actions are subject to their employer's scrutiny.

Whether the discharge was valid in this case must be tested by the statutory standards examined in the light of constitutional limitations on governmental authority. The type of off-duty conduct on which a governmental employer may base a discharge of its employees is limited to actions that at least could rationally be considered likely to discredit them or the government. This employee was not discharged for immorality, presumed or proved. Because what he actually did could not rationally be said to be likely to bring him or the Internal Revenue Service into disrepute, his discharge was unjustified.

I.

Robert Major, Jr. was an Internal Revenue Service agent whose primary duty was to examine income tax returns. During an investigation of his work by the Inspection Division of the Internal Revenue Service, he was accused of various irregularities. His official duties required him to keep records, entitled field, location and itinerary check-out sheets, showing where he would be working at times when he was not in his office. He allegedly listed the names of taxpayers whose returns he was not investigating, and listed a telephone number that did not correspond to the number of any person whose income tax return he was examining. In records covering a period of 13 months he listed that telephone number 41 times.

When interviewed by IRS inspectors, he stated that the telephone was located in an apartment in the French Quarter in New Orleans that he and a fellow IRS agent had been renting for about a year. In addition, a third IRS agent and a fourth male who was not an IRS employee shared the use of the apartment and maintenance costs. It was described variously as a "fun place" or as a "shack pad." The telephone was listed in the name of the person who was not an IRS employee. Mr. Major accounted for listing the apartment's telephone on his out-of-the-office work records by explaining that he also ate lunch there at times and worked there when he needed quiet. It was not shown that he ever used the apartment as a "fun place" during duty hours.

The three IRS employees who shared the apartment were married, and were apparently living with their families. They used it as a place to conduct extra-marital sexual affairs. Mr. Major frequently used the apartment for this purpose, but only when he was not on duty. The rental apartment was in a separate building adjacent to a larger dwelling occupied by the landlord and his family. The record refers to the apartment as the "slave quarter" because it occupied the separate unit once used for slaves. The landlord said the tenants were excellent, and never caused any trouble or disturbance. He knew the apartment's function, but said that the tenants and their activities had never embarrassed him or his family.

On April 26, 1973, Mr. Major received a notice proposing his removal from service on the basis of five specifications of improper conduct charged by the District Director of Internal Revenue, Supervisor. These included charges that he falsified official documents by intentionally making false and misleading entries in matters of official interest; he used government time for personal purposes; and he engaged in activities tending to discredit both him and the IRS in violation of Section 1942.11 of the IRS Rules of Conduct.¹

Mr. Major requested and received an opportunity to reply orally to the charges. The District Director sustained the charges. Mr. Major then appealed, but did not request a hearing; he elected to have his appeal adjudicated on the basis of the established file. The appeals examiner dismissed all of the charges but the one that accused him of behavior discrediting himself and the Internal Revenue Service. He found that Mr. Major had not intentionally made false and misleading entries in matters of public interest, nor had he used government time for personal purposes. There was no finding of immoral conduct; nor was there any finding that Major's conduct was notorious or public.

The appeals examiner's conclusions were based on the thesis that, in the mind of the landlord, the apartment had acquired "an aura of illicit relationships" in which Mr. Major was bathed. See Decision of the United States Civil Service Commission Board of Appeals and Review, page 4. Thus, the examiner reasoned, Mr. Major had left himself open to attempts by the landlord to exert improper influence on him. In fact the landlord had a tax matter pending before the New Orleans branch of the IRS, but Mr. Major was not assigned to this, and there was no evidence that the matter had even been a subject of discussion between him and the landlord. The appeals examiner was also influenced by the fact that two other IRS employees and one person who was not an IRS employee knew of Major's conduct.

The appeals review board sustained the appeals examiner's determination. It said that Mr. Major "by his actions, jeopardized his ability to remain objective and could have subjected himself to outside pressures in dealing with taxpayers."

The Appeals Review Board also appears to have reasoned that clandestine immorality, known to a small number of people, "reflected unfavorably to a great degree" upon the IRS. The Rules do permit discharge for behavior that tends to discredit the employee or the Service. Here the inquiry is not whether Mr. Major was a person of integrity or whether his sexual behavior was moral but whether what he did tended to discredit him or the IRS.

II.

Congress has provided that protected civil servants shall not be dismissed except for such cause as will promote the efficiency of the Service. 5 U.S.C. § 7512(a). The rules explain in detail the conduct that justifies discharge under that statutory standard. Whether the conduct in a given case is of a kind that can rationally be said to be proscribed by the statute, as interpreted by the rules, is the first inquiry. See Norton v. Macy, 1969, 135 U.S.App.D.C. 214, 417 F.2d 1161. But the statute may go no further than the Constitution permits: the spreading shelter of due process and privacy may extend greater protection to government employees than is exacted by the statutory standard.

It is true that, in many cases, federal courts reviewing the dismissal of federal employees have said that they were limited to determining whether the employee had received procedural due process. See, for example, Hargett v. Summerfield, D.C.1957, 243 F.2d 29 and Chiriaco v. U. S., 5 Cir. 1964, 339 F.2d 588, 590; Compare Dozier v. U. S., 5 Cir. 1973, 473 F.2d 866.

Other cases have made restrained inquiry into the grounds for discharge; the courts, they have held, cannot re-evaluate the evidence in support of removal. But they may determine whether the dismissal was arbitrary or capricious, or an abuse of discretion. Dozier v. U. S., 5 Cir. 1973, 473 F.2d 866. Polcover v. Secretary of Treasury, 1973, 155 U.S.App.D.C. 338, 477 F.2d 1223; McGhee v. Johnson, 10 Cir. 1969, 420 F.2d 445; Bishop v. McKee, 10 Cir. 1968, 400 F.2d 87, 88. This has been expressed almost universally in terms of limitation; the inquiry may not go beyond examination for administrative caprice. This was the view adopted by the Fifth Circuit in Anonymous v. Macy, 5 Cir. 1968, 398 F.2d 317. See also, Nelson v. Kleppe, 5 Cir. 1974, 494 F.2d 514, 515 n. 3. Macy dealt with discharge of an employee for homosexual acts. With respect to the argument that such acts constituted private acts and did not affect the efficiency of the service, the court simply cited Hargett v. Summerfield, supra, and Chiriaco v. United States, supra. This, again, was the position taken in a per curiam opinion in Taffel v. Hampton, 5 Cir. 1972, 463 F.2d 251.

In none of these cases has the Fifth Circuit confronted, nor has it decided, whether the Constitution commands further inquiry. But the Fifth Circuit opinions recognize that the government's obligation to accord due process sets at least minimal substantive limits on the dismissal of its employees. The basis of the proscription against dismissals that are "arbitrary and capricious" must be the Constitution.

The constitutional guarantee of due process of law embraces both procedural and substantive aspects. The substantive aspect of the restraint on government conduct is to prohibit actions that do not bear at least a rational...