Swaaley v. United States

• Decision Date: 12 May 1967
• Docket Number: No. 405-65.,405-65.
• Citation: 376 F.2d 857
• Parties: Joseph SWAALEY v. The UNITED STATES.
• Court: U.S. Claims Court

376 F.2d 857 (1967)

Joseph SWAALEY v. The UNITED STATES.

No. 405-65.

United States Court of Claims.

May 12, 1967.

Carl L. Shipley, Washington, D. C., for plaintiff. Shipley, Akerman & Pickett, Washington, D. C., and Samuel Resnicoff, New York City, of counsel.

Manfred J. Schmidt, Washington, D. C., with whom was Asst. Atty. Gen. Barefoot Sanders, for defendant.

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

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

NICHOLS, Judge.

This is an action by an honorably discharged veteran to recover the salary which he claims has accrued since his involuntary separation from his position of Heavy Duty Equipment Mechanic, WB-11, at the former New York Naval Shipyard, Brooklyn, New York. The case is before us on cross-motions for summary judgment. There is no material issue of fact. Plaintiff asserts various reasons why his discharge from the shipyard work force was unlawful, but the one we consider dispositive is that he was deprived of his right to "petition the Government for a redress of grievances" under the First Amendment.

The "petition" in question was a letter which plaintiff mailed to the Honorable Fred Korth, Secretary of the Navy, dated February 11, 1963. Plaintiff did not, so far as the record shows, mail or otherwise publish it to anyone else. The letter begins:

Dear Sir:

Promotions in the Transportation Department (02 Shop) of the Public Works Dept., New York Naval Shipyard, Brooklyn New York are usually made in an unfair and prejudicial manner. The important qualifications are (a) How much will you pay? (b) Who do you know? (c) What favors do you do? (d) What\'s in it for me? The three shop personnel mostly responsible for these unethical promotional policies in 02 Shop are * * * three named persons.

The letter goes on to give various specific instances of alleged favoritism and wrongdoing in the Naval Shipyard. Many of these were already known to the local authorities (whether or not to Mr. Korth) but corrective action was only in process, not completed. According to the Shipyard Commander's letter of March 11, 1963, "action has been or will be taken" against any individual who had committed criminal or improper actions. Plaintiff also complained that he had passed examinations for promotion and was first on eligible lists, but that others had been promoted over his head. (Emphasis supplied.)

The following statement was of peculiar importance, as will appear:

During the two lengthy conversations I have had with X, a high management official * * *. I tried to impress upon him the unfairness and prejudice of 02 Shop promotions. I indicated to X * * * that I am better qualified and better educated than the people who bypassed me * * X finally told me very clearly "you do not get a promotion because you deserve it, you must pay for it. When you are ready, I will let you discuss the terms with * * * Y."

Plaintiff concluded the letter with the information that he was a veteran of three campaigns in the Pacific Theater, and that he had received a

Service Connected Disability Award until November 1961, for a Liver Condition I contracted in the Pacific. I have more than twenty years of Government service. I am honest which unfortunately is a big disadvantage in this Shipyard.

The Bureau Chief forwarded the letter to the Shipyard with an endorsement calling for "appropriate action." Then, needless to say, the roof fell in on plaintiff. The record does not reflect whether the Secretary ever saw the letter.

The Shipyard Commander's letter of March 11, to plaintiff, quoted supra, traverses plaintiff in detail as to discrimination in promotion, and says that the vast majority of persons plaintiff named were decent, honest and dedicated. It accuses plaintiff of seeking to make a deal with the Director of Industrial Relations to desist from informant activities in return for a promotion, a charge not pressed thereafter. It also states that Shipyard officials, particularly management employees, need to be protected against "continuing allegations and insinuations by employees." The letter ends by advising plaintiff:

* * * you have ten days from the date of this letter to present corroborative evidence in support of your defaming statements, insinuations and quotes from private conversations.

Also, he was informed he might retract his statements, but with no assurance that the retractions would cancel out "any contemplated disciplinary action."

On March 29, 1963, a letter advised plaintiff that it was contemplated to remove him from employment in the Shipyard for making "unfounded statements" in the letter. No other misconduct was relied upon. Six statements were quoted, the one relating to X and Y being designated Specification 1(f). The letter stated that the statements maligned the Shipyard and its officials, and undermined the character, reputation, and efficiency of high level military and civilian officials, and had an adverse effect on the trust and confidence placed in the Shipyard. And, that writing directly to the Secretary "added to the degree of harm sustained by the Shipyard." Plaintiff, the letter continued, though afforded an opportunity, had neither presented corroborative evidence to support his allegations, nor had he retracted them. Plaintiff could have had a hearing at which he might "produce witnesses who have a direct knowledge of the circumstances and factors bearing on these charges."

The March 11, letter referred plaintiff to "NCPI 750.2-5" (Navy Civilian Personnel Instructions) which established the ground rules applicable to his dismissal. It is entitled:

Irresponsible Statements Made by Employees

It says in effect that if an employee in the course of a hearing reflects on the honesty, integrity, motives or efficiency of others, the hearing officer must consider if the statements are sufficiently disparaging and not in thoughtless self-defense or as a mere expression of anger and hostility. If they are, the employee must be advised he will be held responsible. "* * * he should be prepared to substantiate his statements and failure to do so may be a cause of disciplinary action * * *." And he "* * * should be allowed to make a timely retraction of his statements * * *." A second section continues that if the disparaging statements are "in writing, the appropriate officer should discuss the matter with the employee, following the principles stated in (1) above, as applicable." That is, either the employee must prove his derogatory statements, retract them, or be disciplined. The management representative stated the ground rules thus at p. 3 of the hearing:

Management has not at any time said these statements are untrue, nor does Management intend to say that these statements are untrue. Management has made the statement that these statements are unfounded merely by the fact that the appellant has not, in the opinion of Management, provided sufficient information to convince us completely that all his statements are true.

The Navy had made little investigation of the charges, except as to 1(f), leaving the plaintiff to his obviously anticipated failure to prove them. This is explainable as some of them were known already and as to others, plaintiff, they thought, had destroyed his credibility with unfounded accusations on prior occasions.

Under date of May 7, 1963, a Hearing Advisory Committee reported to the Commander that the hearing had been held on April 15, 25, and 29. It stated, plaintiff "failed to demonstrate either that his statements are true or that there was a reasonable basis on which an employee might make such statements."

With respect to charge 1(f), Mr. X (called by the Chairman) denied under oath at the hearing that he said anything like what plaintiff had alleged he had said. Some corroboration of this was found in the fact that plaintiff, reporting on prior occasions on the same conversation with Mr. X, did not mention any such words. However, Swaaley took the stand and repeated this charge under oath. He was cross-examined but not asked to explain his inconsistent reports on prior occasions. It was noted that Y, referred to supra, was at the time of the hearing suspended and had been arrested for misconduct, so it would have been difficult to damage further his reputation. The Navy offered no evidence on the other charges but plaintiff did produce some testimony to show they were true or might have been believed to be true.

The plaintiff was discharged as of May 10, 1963, and appealed to the Director, New York Region, Civil Service Commission, who made a detailed analysis of the case and decided to sustain the removal, under date October 31, 1963, affirming all but one of the six specifications. Concerning burden of proof he said the following:

In a case of this type, an employee may not be penalized because of his inability to establish the literal truth of his accusations; however, he does not have an unrestricted privilege in making defamatory remarks about his superiors. The rule is that an employee who honestly believes he has information of misconduct on the part of his superiors may divulge it to higher officials without liability even if it turns out that his information is incorrect so long as he acts in good faith and has reasonable grounds for his belief.

But he found that plaintiff's proofs did not satisfy this standard, as to five of the specifications, including 1(f).

The case then went to the Commission's Board of Appeals and Review, which decided that plaintiff's appeal should be sustained and plaintiff reinstated. This Board noted that many of plaintiff's allegations were essentially true and that the Shipyard had made no investigation except as to Specification 1(f). It noted that a charge of making "unfounded" statements, as here, is sustained when the employee fails on confrontation to "offer substantiation or withdraw...