for which personal loyalty and confidence are necessary, [it] impedes the performance of [plaintiff's] duties[, and it] interferes with the regular operation of the enterprise." Id.
On balance, CSS's interest to maintain smooth office operations outweighs the concern of the employee, as a citizen, to comment on matters of insignificant public concern. As the Court stated in Connick, there is a "common-sense realization that government offices could not function if every employment decision became a constitutional matter." Connick, 461 U.S. at 143 (footnote omitted).
A temporary public employee who disobeys his superior's lawful command to "sign off" on a child support order which was agreed upon by the child's parents, and whose employment term is not extended after its expiration, does not state a claim based on the infringement of First Amendment rights. As a matter of law, plaintiff did not speak on a matter of "public concern." Nor does plaintiff's refusal to "sign off" on the child support order outweigh the government's interest, as an employer, to promote the efficiency of the public services it performs through its employees. Plaintiff's failure to satisfy the first two requirements of the Hall analysis, makes it unnecessary for this Court to address the remaining two queries. Summary judgment is granted to defendants on the 42 U.S.C. § 1983 cause of action based on the alleged violation of free speech rights guaranteed by the First Amendment.
IV. DUE PROCESS
Plaintiff claims that the OCC's decision not to renew his contract deprived him of a "property" interest in continued employment in violation of his due process rights within the meaning of the Fourteenth Amendment. To prevail on this claim, plaintiff must establish that he held a "legitimate expectation" of continued employment in the OCC by means of "existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972) [hereinafter " Roth "]; Hall v. Ford, 856 F.2d at 265.
Plaintiff's thirteen month term lapsed and defendants chose not to extend his employment. His allegations parallel those advanced by the university professor in Roth. In Roth, the Court held that a teacher employed by the State lacked a "property" interest in continued employment when his term expired on a certain date and no provision was made to renew his contract. Roth, 408 U.S. at 577-578. Professor Roth could not point to any rules or understandings to support his contention that a "property" right had inured to him. Likewise, plaintiff Mulhall can not cite any rule or understanding to establish a legitimate expectation in continued employment.
Plaintiff's status as an "excepted service" employee pursuant to D.C. Code Ann. § 1-610.2 (1981), does not create a constitutionally secured "property" right. Under D.C. law, "excepted service" employees are not afforded any job tenure or protection. Hall, 856 F.2d at 265; D.C. Code Ann. § 1-610.5 (1981). Plaintiff attempts to buttress his claim by citing a statute which gives D.C. employees a "right to freely express their opinions on all public issues." D.C. Code Ann. § 1-616.2(1) (1981). Notwithstanding the dubious nature of the "public issue" upon which plaintiff spoke, the D.C. Circuit has rejected the argument that this "modest restriction" may give an employee a legitimate claim of entitlement to continued employment. Hall, 856 F.2d at 266.
Plaintiff claims that since he had a "special appointment" pursuant to D.C. Code § 1-610.4(4) (1981), defendants could only discharge him for "cause." However, his personnel forms clearly demonstrate that he was appointed pursuant to D.C. Code § 1-610.9 (1981), which is entitled "Appointment of Attorneys." See Def. Ex. 1. Even if plaintiff held a "special category position" pursuant to District of Columbia Register § 904.4(b) [hereinafter "DCR"] April 26, 1985,
he is not entitled to any greater due process than what he received. The D.C. regulations which establish the rights of employees in "special category" positions do not mention, as plaintiff alleges, that such employees may only be discharged for "cause." See DCR § 908.4, Def. Ex. 14.
A "special category" employee who "completed at least one year of service . . . with average performance, . . . shall be entitled to advance written notice of at least fifteen days when termination is contemplated, explaining the reason for the termination." DCR § 908.4. Defendants gave plaintiff timely notice that his "TERM appointment" would not be extended. See Def. Ex. 2. Furthermore, pursuant to DCR § 908.5, since plaintiff's personnel action form contained a not-to-exceed date of July 21, 1988, he was not entitled to fifteen days notice.
See Def. Ex. 1, boxes 10, 36 and 37.
Plaintiff also asserts that he was "unable to appeal his satisfactory job rating due to [a] failure to follow evaluation procedures in the D.C. Personnel Regulations." See Pl. Com. para. 56. District of Columbia Register § 1-615.4 states that an agency head "may provide" an employee with an impartial review of the performance rating only upon the written request of an employee of that agency. Plaintiff fails to allege that he made the written request which is a prerequisite to an "impartial review." Moreover, a review is left to the discretion of the agency head. It is not guaranteed to every employee who is upset with a performance rating.
No D.C. law, OCC rule or policy, confers plaintiff with a "property" interest within the Fourteenth Amendment. Additionally, plaintiff fails to show that any understanding reached between him and defendants furnished him with a legitimate expectation of continued employment. OCC's personnel action Form 1 listed plaintiff as a temporary employee whose term was not to exceed thirteen months. See Def. Ex. 1. Plaintiff never received any clear assurance from defendants which provided for an extension of the contract or one which guaranteed renewal absent discharge for "cause." The communications between the parties could not have led plaintiff to legitimately expect a "property" interest in continued employment. Plaintiff can not cite any OCC materials which would have induced him to legitimately expect to be rehired.
The complaint alleges that plaintiff's "contractual expectation of continued professional employment as an attorney" was a "specific reason" which initially motivated him to work for OCC. In his complaint, plaintiff also characterized this position as a "stepping stone" to future employment opportunities with the District of Columbia. See Pl. Com. para. 12-13. However, this vague unilateral expectancy of continued employment does not create a "property" interest protected by procedural due process. See Roth, 408 U.S. at 577.
Plaintiff contends that his legitimate expectation of continued employment stemmed from a satisfactory performance rating and oral representations made to him by defendant Robinson. This contention lacks merit. "It is well settled District of Columbia law that in the absence of clearly expressed contrary intent, 'the assumption will be that-even though [the parties] speak in terms of "permanent" employment-the parties have in mind merely the ordinary business contract for a continuing employment, terminable at the will of either party.'" Minihan v. American Pharmaceutical Ass's, 259 U.S. App. D.C. 10, 812 F.2d 726, 727 (D.C. Cir. 1987), quoting Littell v. Evening Star Newspaper Co., 73 App. D.C. 409, 120 F.2d 36, 37 (D.C. Cir. 1941).
Plaintiff's status as an "excepted service" employee presumptively makes him an at will employee, Hall, 856 F.2d at 265, whose employment with OCC was terminable at will.
Plaintiff lacked any "property" interest because an objective basis upon which to believe that he would continue to be employed indefinitely by OCC was absent.
After the completion of his first term of employment, which was set at thirteen months, plaintiff's term was simply not extended. As in Roth, where the plaintiff was a faculty member who lacked tenure and whose one-year contract was not renewed following his first year, plaintiff has no legitimate expectation of continued employment. No constitutional property interest derives from plaintiff's thirteen month stint at the OCC.
Plaintiff harbored an abstract and unilateral notion of being rehired, not a "property" interest sufficient for this Court to require OCC to renew his term of employment. Summary judgment is granted to defendants on the due process claim.
V. PENDENT CLAIMS
Under Article III of the United States Constitution, a federal district court may only hear cases which involve diversity of citizenship or federal questions. If a plaintiff's pleadings contain a substantial federal claim, a federal court is empowered to hear pendent state claims which "derive from a common nucleus of operative fact" and are such that a plaintiff "would ordinarily be expected to try them all in one judicial proceeding." United Mine Workers v. Gibbs, 383 U.S. 715, 725, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). The exercise of jurisdiction over these state law claims is known as pendent jurisdiction. See 13B Wright & Miller, Federal Practice and Procedure § 3567.1 (1984). "Pendent jurisdiction is an exercise of discretion, not of plaintiff's right." Id.
Counts III through V of plaintiff's complaint allege common law torts of breach of contract, wrongful discharge in violation of public policy, and intentional interference with contractual relations. Because summary judgment is granted to defendants on plaintiff's federal claims, this Court in the exercise of its discretion declines to exercise pendent jurisdiction over these related claims which are based on state law. See Gibbs, 383 U.S. at 726.
As the Gibbs Court reasoned:
Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.