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July 31, 1979

W. MICHAEL BLUMENTHAL, et al., Defendants.

The opinion of the court was delivered by: SIRICA

This case is before the Court on the defendants' motion to dismiss or, in the alternative, for summary judgment. Because affidavits and exhibits extraneous to the pleadings have been submitted, the Court will treat the motion as one for summary judgment, as provided in Rule 12(b)(6) of the Federal Rules of Civil Procedure.

Plaintiff, a probationary employee, complains that he was wrongfully dismissed from his position as a bulk money handler in the Coin Branch of the Department of the Treasury. He seeks reinstatement, back pay, damages, a declaratory judgment, and other equitable relief.

 Because the Civil Service laws provide probationary employees in plaintiff's circumstances with no effective avenues of relief, he finds his cause of action in the first and fifth amendments to the United States Constitution. He alleges that he was dismissed for criticizing his supervisor's conduct of Coin Branch affairs, in violation of his first amendment right to freedom of speech. In addition, he charges that defendants violated his fifth amendment due process rights by failing to provide him a hearing to contest the stated reasons for his dismissal.

 Defendants maintain that the undisputed facts establish that plaintiff was dismissed for his unsatisfactory work and disruptive conduct, not for his exercise of his first amendment rights. While conceding that he was denied a hearing to contest the misconduct charges, they argue as a matter of law that the fifth amendment required no such hearing in this case.

 The Court has concluded that, viewing all inferences to be drawn from the facts as alleged in the light most favorable to plaintiff, United States v. Diebold, 369 U.S. 654, 655 (1962), defendants' motion must be denied.

 Facts *fn1"

 Plaintiff began work on June 22, 1975, in the Coin Branch, Bureau of Government Financial Operations, Department of the Treasury, as a GS-3 bulk money handler. The duties of a bulk money handler included: safeguarding coin in transit; weighing and tagging coin bags, stacking coin bags in Treasury vaults; distributing coin bags to coin-counting-machine operators; occasionally assisting such operators; and filling orders for coins.

 Plaintiff's immediate supervisor was defendant Melvin A. Bruce, manager of the Coin Branch, who oversaw the activities of the money handlers and coin-counting-machine operators. In September 1975 Bruce was notified by a Mr. Gabourel, Director of the Currency Claims Division, that $100 had been found missing from a bag of coins. The money handlers were singled out as possible suspects based on the ostensible flow of work through the shop. Consequently, plaintiff and three other money handlers were called to a meeting with Gabourel to discuss the shortage.

 During that meeting plaintiff suggested that the coin-sorting-machine operators should be questioned as well as the money handlers, since they regularly violated established money flow procedures, with defendant Bruce's knowledge and approval. Plaintiff explained that in order to raise production figures for the department and qualify themselves (and their superiors) for year-end bonuses, the machine operators would bypass the sorting equipment, sending bags of unsorted coins through as if sorted. Thus, he concluded, any deductions based on the established work flow procedures would be faulty unless these irregularities were included in the equation.

 Gabourel subsequently called Bruce into his office and confronted him with plaintiff's allegations. Thereafter plaintiff's relations with Bruce deteriorated.

 Prior to that date, plaintiff alleges, Villarreal offered him the opportunity to resign, representing that if he did his personnel record would not show that the department intended to dismiss him or contain the allegations of misconduct. Plaintiff resigned on December 10. Nevertheless, the December 1 termination letter containing the allegations of misconduct and Bruce's November memorandum were retained in plaintiff's personnel file.

 The Standard Form 50, documenting plaintiff's resignation, included the following comments under the heading "Remarks":

 Resigned after receiving written notice proposing to separate for failure to carry out assigned duties, disrespectful language, and threats of physical harm.


 Employee reason: I was given the option to resign or I would be terminated.

 Plaintiff requested both the Department of the Treasury and the Civil Service Commission *fn2" / to grant him a hearing to contest the reasons stated for his dismissal, but his request was not granted.

 From the time of his dismissal until this action was filed on December 21, 1976, plaintiff was unable to find a job. He alleges that numerous applications to federal offices were unsuccessful because of the allegations contained in his personnel file.

 On January 19, 1977, the U.S. Civil Service Commission, Bureau of Personnel Investigations, found that plaintiff did not meet the suitability requirements for employment in the competitive service under 5 C.F.R. § 731.201. This decision was founded on plaintiff's alleged misconduct while employed at the Treasury.

 Plaintiff successfully appealed to the Federal Employee Appeals Authority, which reversed the unsuitability determination on December 3, 1977. The Appeals Authority found conflicting evidence on the record and found the sum of the evidence "insufficient to support a conclusion of delinquency or misconduct by the appellant such as would disqualify him for consideration for future federal employment under the Commission's suitability standards." Decision on Appeal of James L. Harper, Plaintiff's Opposition to Motion for Summary Judgment, App. B, at 3.

 On March 1, 1978, the Department of the Treasury issued corrected forms 50 (notification of personnel action) and 52 (request for personnel action) which reflected only that plaintiff resigned during his probationary period in lieu of being separated. The original forms were removed from plaintiff's official personnel folder, and the reasons for separation stated therein are no longer available to employers (and were never available to the public, other than employers). 5 C.F.R. § 294.702 (1978).

 The First Amendment Claim

 In plaintiff's view, his dismissal was a direct result of his criticism of defendant Bruce to Gabourel. His exposure of Bruce's misconduct of Coin Branch affairs compromised Bruce and incurred his wrath. As a consequence, Bruce built a case against him and eventually prevailed upon his superiors to dismiss plaintiff. This, plaintiff claims, violated his first amendment right to free speech. *fn3"

 The Court's analysis commences with the observation that plaintiff's probationary status is irrelevant to his first amendment claims. Although the government may deny plaintiff the benefit of further government employment at any time during his probationary period for any number of reasons, "[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, 597 (1972); accord Pickering v. Board of Education, 391 U.S. 563, 568 (1968).

 The primary question to be resolved, then, is whether or not the speech that allegedly led to plaintiff's dismissal was speech protected by the first amendment. If it was not, then plaintiff has no constitutional claim. If it was, the Court must then determine whether the plaintiff's exercise of his constitutionally protected right was a "substantial" or "motivating" factor in his dismissal under the standard established by Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 283-84 (1977). If the criticism was a motivating factor then the government must show by a preponderance of the evidence that it would have reached the same decision even absent plaintiff's protected conduct. Id. Since the latter showing would involve resolution of several disputed issues of fact, a determination by the Court that plaintiff's speech was constitutionally protected and was a motivating factor in his dismissal would preclude an award of summary judgment for defendants.

 In determining whether plaintiff's speech was protected, a significant, and undisputed, fact is that the speech in question was uttered completely within the context of plaintiff's employment relationship. This places the issue in a far different analytical framework than if a non-government employee were leveling the same criticism at the same government supervisor. The competing interests at stake here create a tension between the fundamental presumption that American citizens should be able to communicate ideas one to another free from government restriction, on one hand, and, on the other, the necessity for the government, as employer, to be able to preserve discipline, morale, and efficiency among its employees if it is to continue to serve the public. As the Supreme Court observed in Pickering, supra, 391 U.S. at 568:

 [It] cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the [government employee], as a citizen, in commenting upon matters of public concern and the interest of ...

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