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August 3, 1972

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

William B. Jones, District Judge.

The opinion of the court was delivered by: JONES

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. *fn1"

 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 "sick-out" 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). *fn2" 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.

 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 ...

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