Monsanto v. Quinn, 81-1434

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Citation674 F.2d 990
Docket NumberNo. 81-1434,81-1434
PartiesListon MONSANTO, Appellant, v. Leroy A. QUINN, Commissioner, Department of Finance.
Decision Date11 March 1982

Brenda J. Hollar (argued), St. Thomas, V. I., for appellant.

Robert L. King (argued), Jessie Bethel, Asst. Atty. Gen., Dept. of Law, St. Thomas, V. I., for appellee.

Before HUNTER, VAN DUSEN and SLOVITER, Circuit Judges.


SLOVITER, Circuit Judge.


Before us is an appeal by Liston Monsanto, an employee of the Tax Division of the Virgin Islands Department of Finance, from an order of the district court of the Virgin Islands affirming the decision of the Virgin Islands Government Employees Service Commission 1 (GESC) that Monsanto be suspended from his job for ninety days without pay. Monsanto seeks a reversal of the ninety day suspension order, and an award of back wages for ninety days, together with costs for this action, including attorney's fees.

At the time of his suspension, Monsanto, who had been employed in the Department of Finance for approximately twenty-one years, held the position of Internal Revenue Officer IV within the delinquent accounts and returns branch of the Tax Division. 2 His primary duties included the investigation of delinquent taxpayers and the collection of taxes. During the period between October 1975 and the time of his suspension in August 1979 Monsanto, dissatisfied with the operation of the Tax Division, wrote a series of letters to Commissioner of Finance Leroy Quinn and Tax Division Director Anthony Olive in which he complained that the Division was poorly managed and that the morale of its employees was low; criticized the structure of the Division; and sought the elimination of certain employment positions. In at least one letter, Monsanto alleged that several of the employees of the Tax Division had attempted to defraud the government by filing fraudulent tax returns. Monsanto claimed that the problems in the Division were impairing the effectiveness of the Division's tax-collecting operations. Copies of most of the letters were also sent to the Governor and the Lieutenant Governor of the Virgin Islands.

On August 15, 1979 Fred Clarke, a broadcaster on a local radio show, summarized and discussed the contents of letters, allegedly those written to his supervisors by Monsanto, criticizing the Tax Division. In response to this broadcast, Commissioner Quinn on August 17, 1979 released a statement to the press in which he attacked the broadcast as "irresponsible reporting" and defended his integrity and that of the employees of the division. Clarke responded in a broadcast on August 20, 1979.

On August 24, 1979, Commissioner Quinn initiated dismissal proceedings against Monsanto by serving upon him a letter containing the following charges:

(1) Beginning in October 1975, you have been attempting to tarnish the image of the Tax Division, Department of Finance and the integrity of its employees through a stream of malicious letters. During the week of August 13th, and August 20th, 1979, you released letters to the media which contain such serious allegations as fraud and the preparation of fraudulent tax returns in an attempt to disrupt the operation of the Department of Finance, its Tax Division, Revenue Officers and employees.

(2) Beginning with your letter of June 9, 1976, and continuing (with thirteen letters through August 22, 1979) you have been engaged in character assassinations of your co-workers and supervisor who have refused to join you in your disruptive actions.

(3) On Monday, March 19, 1979, in the presence of your immediate supervisor, Mr. Robert Woods and the Director, Tax Division, Mr. Anthony Olive, you were ordered to discontinue using Government equipment, supplies and the letterhead of the Tax Division in writing these malicious letters. You were also ordered to discontinue hand-delivery of these letters during regular working hours at this same meeting, but this practice continues.

(4) You have failed to devote 8 hours each day to your job for which you are being paid.

(5) On December 20, 1978 you violated the disclosure rules of the Internal Revenue Code, Section 6013 (sic), of which you had full knowledge.

Quinn's letter notified Monsanto that his continued presence at his duty station "would be detrimental to the Department and the public interest" and he was therefore temporarily relieved with pay until action by the GESC. A copy was sent to the Governor with Quinn's recommendation that Monsanto be dismissed.

Monsanto appealed his proposed dismissal to the GESC, pursuant to 3 V.I.C. § 530(a). 3 The GESC conducted hearings, and made the following findings of fact:

(1) commencing in October 1975 and continuing to the present, Monsanto submitted "numerous letters" to government personnel, including the Commissioner of Finance and the Governor and Lieutenant Governor, "which had a disruptive effect on the operation of the Department of Finance";

(2) on August 13, 1979 and August 20, 1979 Monsanto "released letters to the media which further disrupted the workings of the Tax Division";

(3) Monsanto "wrote numerous letters and memoranda on Government stationery and utilized secretarial services in the Department of Finance, during regular working hours" and continued to do so "after being specifically instructed to cease";

(4) Monsanto delivered the letters to the office of the Commissioner during regular working hours; and

(5) Monsanto did not violate the disclosure rules of I.R.C. § 6103.

In its accompanying memorandum, the GESC rejected Monsanto's claim that action against him would violate his First Amendment rights and held that Monsanto's activities "constitute(d) unprotected speech."

The GESC ordered that Monsanto be suspended for ninety days without pay. It rejected Quinn's request that Monsanto be dismissed, stating "in light of Mr. Monsanto's exemplary performance ratings, such an action would not serve the best interest of the Government of the Virgin Islands; a 90 day suspension without pay should suffice." 4

Monsanto subsequently petitioned the district court for a writ of review of the GESC decision pursuant to 5 V.I.C. § 1421 et seq. 5 The district court granted review and, after reviewing the record of the GESC proceedings and the parties' briefs, entered an order affirming the decision of the GESC on the ground that its decision was supported by "substantial evidence" and was "otherwise correct as a matter of law."


On appeal Monsanto raises three contentions: (1) that the GESC erred as a matter of law in concluding that his letter writing did not constitute protected speech within the meaning of Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); (2) that the factual findings of the GESC are not supported by substantial evidence; and (3) that the GESC impermissibly deviated in its factfinding from the original charges brought by Commissioner Quinn. 6

In Trotman v. Board of Trustees of Lincoln University, 635 F.2d 216, 224 (3d Cir. 1980), cert. denied, 451 U.S. 986, 101 S.Ct. 2320, 68 L.Ed.2d 844 (1981), we reviewed the three-step process required in examination of a public employee's claim of retaliation based on engagement in protected activity: (1) the plaintiff must show that s/he engaged in protected activity, see Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); (2) if successful in demonstrating that the activity was protected, the claimant must then show that the activity was a substantial or motivating factor in a decision or action taken against the claimant, Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); and (3) the defendant has the opportunity to defeat plaintiff's claim by demonstrating that the same action would have been taken even in the absence of the protected conduct, Givhan v. Western Line Consolidated School District, 439 U.S. 410, 416-17, 99 S.Ct. 693, 697, 58 L.Ed.2d 619 (1979); Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. at 287, 97 S.Ct. at 576.

In Pickering v. Board of Education, supra, the Supreme Court held that determination whether a public employee's speech was constitutionally protected requires balancing the employee's free speech interest against the state's interest in providing efficient public service: "The problem in any case is to arrive at a balance between the interests of the teacher, 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." 391 U.S. at 568, 88 S.Ct. at 1734. The speech at issue in Pickering was a letter written by a high school teacher to a local newspaper criticizing, inter alia, the School Board's allocation of school funds between educational and athletic programs, and charging that the superintendent of schools attempted to prevent teachers from opposing or criticizing a proposed bond issue. Id. at 566, 88 S.Ct. at 1733. The School Board determined, after a hearing, that many of the statements in Pickering's letter were false, and dismissed him on the ground that the publication of the letter was detrimental to the operation and administration of the school system. Id. at 564, 567, 88 S.Ct. at 1732, 1734. In holding that Pickering's speech constituted protected activity, the Court stated that "in a case such as this, absent proof of false statements knowingly or recklessly made by him, a teacher's exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment." Id. at 574, 88 S.Ct. at 1737 (footnote omitted). In applying the balancing test, the Court considered both the nature of the speech and the impact of the speech on the employment relationship...

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