Tygrett v. Washington, Civ. A. No. 1392-72.

• Decision Date: 03 August 1972
• Docket Number: Civ. A. No. 1392-72.
• Citation: 346 F. Supp. 1247
• Parties: James R. TYGRETT, Plaintiff, v. Walter E. WASHINGTON, Commissioner, District of Columbia and Jerry V. Wilson, Chief Metropolitan Police Dept., D. C., Defendants.
• Court: U.S. District Court — District of Columbia

346 F. Supp. 1247

James R. TYGRETT, Plaintiff, v. Walter E. WASHINGTON, Commissioner, District of Columbia and Jerry V. Wilson, Chief Metropolitan Police Dept., D. C., Defendants.

Civ. A. No. 1392-72.

United States District Court, District of Columbia.

August 3, 1972.

Glenn R. Graves, John W. Karr, Washington, D. C., for plaintiff.

Thomas R. Nedrich, Asst. Corp. Counsel, District of Columbia, Washington, D. C., for defendants.

OPINION

WILLIAM B. JONES, District Judge.

Plaintiff James R. Tygrett was hired as a probationary officer by the Metropolitan Police Department of the District of Columbia on July 19, 1971. He was notified by the Director of the Department's Office of Personnel in a letter dated July 7, 1972 that he would be separated from his position as a police officer effective July 15, 1972.

On July 12, 1972, plaintiff filed this civil action asking this Court:

(1) to declare unlawful the defendants' order dismissing plaintiff from his employment on July 15, 1972 and to enjoin said dismissal;

(2) to declare and adjudge D.C.Code § 4-125 (1967) and General Order No. 1, Series 1201, subsection B.5. of the Metropolitan Police Department, which substantially paraphrases the language of D.C.Code § 4-125, to be unconstitutional and to enjoin defendants from enforcing, executing or threatening enforcement of the said statute and of subsection B.5. of General Order No. 1 as applied to the facts in this case.¹

In light of the findings of fact and conclusions of law set out below, this Court need not reach the issue of the constitutionality of D.C.Code § 4-125 nor of subsection B.5. of General Order No. 1 of the police department. Having examined the record in this case and the statements of material facts submitted in accord with Local Rule 9(h), this Court finds that there are no material facts genuinely in dispute. Summary judgment, therefore, is appropriate at this juncture.

During the month of June, 1972, plaintiff actively participated in meetings of the Police Association of the District of Columbia and in lobbying activities at the House of Representatives with reference to the Police and Fire Department pay bill then pending before Congress. Certain statements allegedly made by plaintiff at those events were published in Washington newspapers on June 16, 21, 26, and 27, 1972.

On June 28, 1972, in a tape-recorded interview with Inspector Robert W. Klotz and Captain Robert E. Ellis of the Internal Affairs Division of the Metropolitan Police Department, plaintiff was questioned about the statements attributed to him. In that interview, which has been transcribed and made a part of the record herein, plaintiff took the position that, if Congress failed to act on the Police pay bill, and if the general consensus of the police favored a "sickout," he would falsely report himself sick and that he would be willing himself to organize and lead such a general protest.

After that interview, Inspector Klotz addressed a memorandum to Jerry V. Wilson, the Chief of Police, recommending Officer Tygrett's dismissal from the police force. Inspector Klotz cited attitudes inimical to the police force as the reason for recommending separation from the force. He stated that Officer Tygrett "has indicated that his loyalty and devotion to duty will be subordinated to his personal desires if he feels it necessary, and will even knowingly and purposely depart from the truth to achieve his goal."

On July 7, 1972, in the letter referred to above, Waddell Longus, Director of Personnel, Metropolitan Police Department, gave Officer Tygrett written notice of the reasons for his separation from service. The letter cited certain statements allegedly made by plaintiff about a "blue flu" and a "sick-out" which were subsequently quoted by the newspapers, and Mr. Longus observed that such conduct indicated an intent to violate D.C.Code § 4-125. The letter also noted that plaintiff had affirmed his position with regard to calling in sick and organizing and leading a "sickout" in his interview with Inspector Klotz and Captain Ellis. The final paragraph of the letter referred to the attitude implicit in plaintiff's conduct, an attitude which would not "enhance the image of the Police Department or aid in carrying out its obligation to the community which it serves."

Plaintiff's dismissal from the police department was effected under the authority of D.C.Code § 4-105 (Supp. V. 1972).² That statute provides that no one shall receive a permanent appointment to the police force until he has served the required probationary period, and that if at any time conduct or capacity is determined unsatisfactory, the probationer shall be separated from the service after advance written notification of the reasons for separation. The effect of the statute is to permit the dismissal of a probationary officer without the procedures required in the case of dismissal of a permanent member of the force. The statute does not provide that a probationary officer can be dismissed only after violation of some other statute or police regulation, and the statute does not make specific provisions as to content or form of the required written notification of reasons for separation from service.

The only question of law before the Court in this case is whether the letter from the Director of Personnel of the Metropolitan Police Department to plaintiff satisfied the notice requirements of D.C.Code § 4-105, supra.³ This Court finds that it did. At oral argument, plaintiff contended that if references to plaintiff's quoted statements and to D.C.Code § 4-125 were excised from that letter, there would be nothing left to cite as a reason for separation from service. That clearly is not so. Plaintiff's statements alerted his supervisors to an attitude incompatible with the obligations of the department to the community. His supervisors would have been remiss in their duty not to have examined further into such an attitude on the part of a probationary officer. They did so and found that he was unfit for permanent appointment to the force, despite the loss to the department of its considerable investment in an otherwise promising candidate.

Plaintiff contends nevertheless that the letter from the Director of Personnel raises an issue of abridgement of plaintiff's First Amendment rights of free speech and urges a consideration of recent decisions which have affirmed the First Amendment rights of public employees. Although a consideration of the principles set forth in those cases is unnecessary in reaching the decision here on other grounds, the Court will nevertheless for the record apply those principles to the facts in the instant case.

There is no question that a public employee cannot be discharged solely in reprisal for the exercise of his First Amendment rights. Indeed, the United States Supreme Court recently commented:

For at least a quarter century, this Court has made clear that even though a person has no `right' to a valuable governmental benefit in this case, employment and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not act. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech. Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (decided June 29, 1972).

In Perry, the Court held that an employee's lack of a contractual or tenure right to renewal of employment at the end of a specified period is immaterial to a claim of violation of First Amendment rights. Thus, in the case before the Court here, plaintiff, although only a probationary officer, could not be dismissed solely in retaliation for the exercise of his First Amendment rights.

But the First Amendment right of free speech, whether in the context of employment or any other legitimate activity, is not absolute. Frequently the right to speak freely must be balanced against legitimate conflicting interests. This was the approach taken by the Court in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L. Ed.2d 811 (1968), a case cited by both parties here.

In Pickering, the Board of Education dismissed a teacher for writing and publishing in a newspaper a letter criticizing the Board's allocation of school funds between educational and athletic programs and the Board's methods of informing or preventing the informing of the taxpayers of the real reasons why additional tax revenues were being sought for the schools.

The Court in Pickering refused to apply the "actual malice" standard of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (applicable to libel suits by public officials) to criticism by teachers and other public employees of their superiors. In fact, because of the enormous variety of fact situations in which critical statements by public employees might be thought to be grounds for dismissal by their superiors, the Court refused to lay down any general standard against which such criticism might be judged. 391 U.S. at 569.

The Court rather attempted to balance the teacher's interest as a citizen in speaking about matters of public concern against the State's interest in promoting the efficiency of its public services. Without intimating how it would rule if certain elements had been present in Pickering's relationship with the Board of Education, the Court, in balancing the conflicting interests, pointed out that such elements were not present in that case:

1. Pickering's statements were not directed towards a person with whom he would normally be in contact in the course of his daily work as a teacher. 391 U.S. at 569-570, 88 S.Ct. at 1735;

2. Thus there was not present any question of maintaining discipline by immediate superiors and harmony among co-workers. Id. at 570, 88 S.Ct. at 1735;

3. Pickering's relationship with the Board...