Steppe v. GOVERNOR, US SOLDIERS'& AIRMEN'S HOME, Civ. A. No. 86-1607
| Decision Date | 10 April 1989 |
| Docket Number | Civ. A. No. 86-1607,87-1948 and 87-2142.,87-1230,86-3018 |
| Parties | Joseph STEPPE, et al., Plaintiffs, v. GOVERNOR, UNITED STATES SOLDIERS' AND AIRMEN'S HOME, Defendant. |
| Court | U.S. District Court — District of Columbia |
Warren C. White, Adelphi, for plaintiffs.
Jeffrey Hunter Moon, Asst. U.S. Atty., Washington, D.C., for defendant.
Plaintiffs brought this action under 28 U.S.C. § 1331 and § 1346(a) and (b), alleging that defendant Governor of the Soldiers' and Airmen's Home ("Home") wrongfully discharged the plaintiffs from their position as employees of the Home. At oral argument plaintiffs indicated they were relying on the Administrative Procedure Act ("APA") as an additional basis for conferring jurisdiction on this court. The APA provides judicial review to "any person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. § 702.1
It is well established that where Congress intends to preclude judicial review of constitutional claims, including those involving the employment rights of government employees, its intent to do so must be clear. Webster v. Doe, ___ U.S. ___, ___, 108 S.Ct. 2047, 2050, 100 L.Ed.2d 632 (1988) (citing Johnson v. Robinson, 415 U.S. 361, 367, 94 S.Ct. 1160, 1165, 39 L.Ed.2d 389 (1974)). In Webster, the Supreme Court held that the National Security Act, which gives the Director of the CIA wide discretion in deciding whether to terminate a CIA employee, does not preclude the review of related constitutional claims under the APA. Id.
The plaintiffs are former employees of the United States Soldiers' and Airmen's Home ("Home") who were discharged in early 1986 for alleged illegal drug activity. Plaintiffs contend that their dismissal was in violation of their constitutional rights under the Fifth Amendment and the collective bargaining agreement between the Home and the Federal Employees and Transportation Workers, Local Union 960 ("Union").
Plaintiffs' complaint is multifaceted. In essence, their allegations are geared to two principal causes of action. First, plaintiffs claim they were deprived of property interests without due process of law when they were discharged from long standing positions at the Home without having the right to a hearing where they would be able to exercise their constitutionally mandated right to confront the witnesses against them. Second, in an amended complaint, plaintiffs allege that defendant failed to honor and implement plaintiffs' hearing rights under a negotiated agreement with plaintiffs collective bargaining agent and the Home.
Defendant contends that as excepted service non-preference employees, plaintiffs were not entitled to a hearing by the Home, but to only rights given to them under the collective bargaining agreement. The defendant further contends that the right to arbitration provided for under the agreement lapsed when the Union did not request arbitration in a timely manner.
While plaintiffs seek various kinds of relief including reinstatement and money damages, I believe that this court has the authority only to order a substantive hearing on the serious but unproven charges defendant made against the plaintiffs. Such a hearing under the facts of this case is mandated by the Constitution, the Administrative Procedure Act, and the collective bargaining agreement between the Home and the Union.
As is all too often the case in these situations, the government claims that this court is without jurisdiction to consider any of plaintiffs' claims. Since plaintiffs are considered excepted service non-preference employees, the government contends that plaintiffs have no federally protected employment rights. This court does not agree with defendant's contention that these plaintiffs, as excepted service non-preference employees, are in effect "at will" employees of the government. While plaintiffs were all employed in low paying, low level support positions, they held those positions for many years. Indeed, all but one of the plaintiffs held their positions for at least ten years and had started work at the Home prior to the passage of the Civil Service Reform Act.
It is my view that as federal employees each day of service entitled them to certain cumulative benefits. As time passed, their property interest in their jobs became more established and less vulnerable to an arbitrary and capricious action by the government. Thus it would seem that prior to an involuntary dismissal from their positions these long standing government employees should be allowed some form of confrontational hearing, at the minimum a post-termination hearing. Such a hearing requirement would be satisfied by an arbitration proceeding provided under the collective bargaining agreement pertaining to the plaintiffs in this case.
This court conducted a number of evidentiary hearings to determine the facts. From the record, it is clear all of the plaintiffs were considered good employees and had no prior disciplinary complaints or actions taken against them while working at the Home. All were long time employees preforming unskilled but vital tasks for the Home.
Plaintiff Joseph Steppe was a night administrator when he was removed from the Home. He started work at the Home in January of 1977, as a temporary grounds keeper. Through his nine years of employment at the Home, up until the immediate incident, Steppe had no disciplinary problems, and had consistently received favorable reviews of his work.
Michael Little started work at the Home in 1973, in the housekeeping department. While employed at the Home, Little advanced to the position of ambulance driver, which he held at the time of his termination.
Charlie Ward started at the Home in 1970 in the housekeeping department. Ward received a number of promotions and eventually became a tractor operator, the position he held at the time of his termination. Throughout his eighteen years at the Home Ward received good job performance ratings and did not have any discipline problems.
Jan Steadman worked at the Home for ten years as a light equipment repairman. During that time Steadman received outstanding job performance ratings and a letter of commendation. He testified that until his removal he had no disciplinary problems.
Owen Horton worked at the Home as a mason for six and one-half years without any disciplinary problems until this incident.
In late 1985, Brenda Fuentes, an employee at the Home, was arrested by the D.C. Metropolitan Police on charges of possession and distribution of controlled substances. Shortly afterwards, Ms. Fuentes was questioned by Home investigators about her involvement with drugs.
Miss Fuentes told Home investigators that at least eighteen other Home employees had used drugs, either outside work or at work. The five plaintiffs in this case were among those implicated by Miss Fuentes.
Upon receiving evidence of plaintiffs' alleged misconduct, the Home conducted a preliminary investigation of the charges. Home investigators interviewed each of the plaintiffs. At the conclusion of the investigation, the Home issued a notice of proposed removal to each plaintiff. No pretermination hearing was held. After receiving their final notice of removal, all five plaintiffs chose to challenge their removal.
All of the plaintiffs in one way or another made good faith efforts to exhaust the post-removal grievance procedures available to them under the Home's rules and later under the union contract.
Two of the plaintiffs, Charlie Ward and Owen Horton, attempted unsuccessfully to appeal their removal to the Governor. The Union, which had agreed to act on behalf of Ward, failed to file the appeal with the Governor within the stated time period despite Ward's timely request of the Union representative to do so. The failure to file the appeal was solely the fault of the Union representative, James Sampson, and was a breach of the Union's duty to fairly represent Ward.
Owen Horton retained Kenneth Mundy, a highly respected local attorney, to represent him in his post termination process. Mr. Mundy testified that he did not receive the Home's notice of Horton's removal until after the time to appeal that removal had expired. Mr. Mundy proceeded to file an appeal to the Governor in what would have been the allotted time period if the Home's action had been taken on the day Mundy received the notice. The court credits Mr. Mundy's testimony and finds that Horton's appeal to the Governor was in fact timely.
The remaining plaintiffs made timely appeals to the Governor, all of which were reviewed and rejected. Plaintiff Steadman requested the Union's assistance in invoking arbitration. Although the Union agreed to request arbitration on Steadman's behalf, the Governor denied the Union's request, maintaining that it had received the request two days late. Since the Union served as Steadman's exclusive representative in invoking arbitration, its failure to proceed in a timely manner was a breach of the Union's duty of fair representation.
When plaintiffs Joseph Steppe and Michael Little sought the Union's assistance in proceeding with arbitration, the Union's business manager, James Sampson, advised them that they also had the option of going directly to Federal Court to contest their removal. This court credits the courtroom testimony of Sampson that he gave such advice. Steppe and Little fully corroborate Sampson's testimony. Sampson claimed that since he was new in his position as Union manager and lacked experience in Home personnel matters, he relied on advice from Brock Fowler, the Home's Supervisory Personnel Management Specialist. I am not so sure that the advice came from Fowler, since he denies giving such advice. Since it is immaterial whether or not Fowler so advised Sampson, I have elected not to...
To continue reading
Request your trial
-
Steadman v. Governor, U.S. Soldiers' and Airmen's Home
...provide appellees with such a hearing as was provided for in the collective bargaining agreement. Steppe v. Governor, United States Soldiers' and Airmen's Home, 710 F.Supp. 356 (D.D.C.1989). The district court determined that the union's failure to invoke the arbitration procedure was a bre......