Dunn had entered a building at the Valley Forge Consolidated Office and attempted to use a computer in that building, although he was no longer assigned to work there. This alleged "serious breach of building security and . . . attempted breach of computer security" was discussed with Dunn in a formal meeting on April 1, 1993, the same date on which the performance memorandum was prepared. And, on April 12, 1993, apparently following the advice he had received in the January 27 e-mail, Smedley issued a formal letter of warning to Dunn (DX43)("neither grievable or [sic] appealable") indicating that any reoccurrence might subject him to "disciplinary action up to and including dismissal." Ten days after that letter, on April 22, 1993, Dunn was given final notice that his NTE date would not be extended and that his last day at RTC would be May 7, 1993 (DX38).
14. The denouement of Dunn's employment at RTC was not pleasant. Dunn made haste to contact members of Congress after being told that this appointment would not be renewed. (PX14, PX12). Those contacts led to Congressional inquiries, which led to nervous e-mails within RTC, which led to an hysterical over-reaction on the part of RTC and to the suggestion on somebody's part that Dunn might attempt to disrupt an RTC meeting in Parsippinay, New Jersey, in early May. An organization with the eponymous or perhaps Swiftian name of "Aggressive Detective Agency" had Dunn followed to his house and so alarmed him that he made a u-turn, proceeded to the nearest police station, and reported the incident. The ensuing investigation of that incident led to a number of high-level denials.
15. As if that were not enough, almost a year later, three RTC employees, Gary Prevatt, Dennis Lauria and James Hambric, learned that Dunn had finally managed to get a job with an RTC contractor, Coopers & Lybrand, and took it upon themselves to provide derogatory information to Dunn's new employer that frightened Coopers & Lybrand into terminating Dunn's employment when it had scarcely begun.
To prevail on a claim for violation of the First Amendment, a government employee must prove that his conduct was constitutionally protected and that the protected conduct was a substantial or motivating factor in the adverse personnel action complained of. Board of County Commissioners v. Umbehr, 135 L. Ed. 2d 843, 116 S. Ct. 2342, 2347-48 (1996). If the employee discharges that burden, the government can escape liability by showing that it would have taken the same personnel action in the absence of the protected conduct. Id.; Orange v. District of Columbia, 313 U.S. App. D.C. 279, 59 F.3d 1267, 1272 (D.C. Cir. 1995). Adverse personnel actions taken because of protected speech may also be justified when legitimate countervailing government interests are sufficiently strong. See Board of County Comm'rs, 135 L. Ed. 2d 843, 116 S. Ct. 2342 at 2347; Pickering v. Board of Ed. of Township High School Dist. 205, 391 U.S. 563, 568, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968).
Speech is protected activity if it involves a matter of public concern, defined as "a matter of political, social or other concern to the community." Connick v. Myers, 461 U.S. 138, 146, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983). In order to have constitutional protection, a public employee must be speaking "as a citizen upon matters of public concern," as opposed to "as an employee upon matters of only personal interest." Id. at 147.
Dunn's complaints about downsizing, internal reorganizations that would affect his responsibilities, negative performance evaluations, and other personnel issues did not touch upon matters of public concern. See id. at 147-49; Murray v. Gardner, 239 U.S. App. D.C. 212, 741 F.2d 434, 438 (D.C. Cir. 1984), cert. denied, 470 U.S. 1050, 84 L. Ed. 2d 813, 105 S. Ct. 1748 (1985)(complaints regarding furlough plan merely employee/management issue and not matter of public concern). Rather, Dunn's complaints addressed his own personal dissatisfaction with personnel actions and were not designed to "inform the public" about the operation of a government agency. Connick, 461 U.S. at 148.
Dunn's disclosures of Control Associates' overbilling practices, on the other hand, touched upon matters of public concern. The questions he raised about Control Associates' excessive bills and RTC's payment of those bills had to do with evaluating the performance and operation of RTC as a government agency and were questions of public import. See Orange, supra, 59 F.3d at 1272-73 (questionable billing practices of University contractor matter of public concern).
The fact that Dunn had disagreements with his superiors on internal matters does not diminish the public importance of the Control Associates issue. See Hall v. Ford, 272 U.S. App. D.C. 301, 856 F.2d 255, 260 (D.C. Cir. 1988).
The court must accordingly determine whether Dunn's protected activities relating to Control Associates played a substantial part, or were a motivating factor, in the adverse actions of which Dunn complains -- that is, the negative performance appraisal and the decision not to renew his employment. See Mt. Healthy City School District Board of Educ. v. Doyle, 429 U.S. 274, 285-86, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977). As for the performance appraisal, the only protected activity Dunn had engaged in when it was prepared in August 1992 that was known to those who prepared the appraisal was the April 24 e-mail about Control Associates. Dunn failed to sustain his burden of proving that the e-mail played a substantial part, or was a motivating factor, in that unfavorable appraisal.
The question of whether Dunn's protected activities were a substantial or motivating factor in RTC's decision not to renew his contract is more difficult. Dunn's employment was not simply "not extended." Continuing appointments and even grade increases for almost all other LG employees were perfunctory. Rather, Dunn's termination was the result of a concerted effort, on the part of at least Stephen Haley and Robert Smedley, to get rid of him. Neither Haley's testimony nor, especially, Smedley's was credible on the benign nature of the hastily convened meeting in the Newark airport, and the chronology makes it quite clear that, from Newark on, the RTC bureaucracy organized itself to build whatever record was necessary to ensure Dunn's dismissal as soon as possible.
The sustained effort to "get" Dunn was at least in part retaliatory, but not for Dunn's (faint) whistleblowing regarding Control Associates or for his contacts with members of Congress. Instead, the sins for which Dunn was dismissed from RTC were internal and bureaucratic: he affronted superiors with his e-mails on personnel issues, he complained (accurately) about non-specific performance appraisals, and he had the effrontery actually to utilize formal RTC grievance procedures.
The behavior of RTC officials after Dunn was given his final notice that his employment would not be extended past May 7, 1993, was clumsy, unprofessional and, in the vernacular sense of the word, paranoid. Smedley's testimony distancing himself from the Aggressive Detective Agency's overheated "security activities" was not credible. Nor was the testimony of any of the participants in the shabby termination-by-rumor of Dunn's employment at Coopers & Lybrand. None of that activity, however -- the "security" activity or the volunteering of rumors to Coopers & Lybrand -- was in retaliation for whistleblowing activity or for statements made to Congress.
Plaintiff failed to establish a prima facie case of a First Amendment violation. The government, accordingly, was not required to prove that it would have taken the same personnel actions in the absence of Dunn's protected conduct.
Judgment will be entered in favor of the defendant on plaintiff's First Amendment claim.
United States District Judge
Dated: June 13, 1997
After trial by the Court sitting without a jury, for the reasons stated in the accompanying memorandum, it is this 13th day of June, 1997,
ORDERED that judgment be entered for defendant RTC and against plaintiff.
United States District Judge