The opinion of the court was delivered by: ROBERTSON
Plaintiff, a former employee of the Resolution Trust Corporation, challenges personnel actions taken against him by RTC, claiming that they were taken in retaliation for his whistle blowing activities. Plaintiff's complaint alleges violations of the RTC Whistleblower Act, 12 U.S.C. § 1441a(q), and the First and Fifth Amendments. Only the First Amendment claim of retaliatory discharge and subsequent blacklisting went to trial, the rest having been dismissed by order dated June 11, 1996. The case was tried by the Court sitting without a jury on April 28, 29, and 30, 1997.
After reviewing the trial record, and taking into account the Court's assessment of the credibility of the witnesses, the Court makes the following findings of fact:
1. Richard Dunn began work at the Resolution Trust Corporation as a Total Assets Performance Analysis (TAPA) Review Specialist on August 12, 1991. He was actually a contract employee of the Federal Deposit Insurance Corporation, known as an LG employee, the letters "LG" standing, ominously, for "liquidation grade." His contract was for one year and was renewable. Most LG employees working at RTC were given routine renewals of their appointments, although it was understood that the RTC would "sunset" on December 31, 1995.
2. Dunn was hired by Leonard Boyer and served under Boyer's supervision until May 1992. The task of the RTC at that time was to intervene in failing thrift organizations, close them, and dispose of their property by sale or otherwise.
3. On April 23, 1992, Dunn created and sent an e-mail to several people within the RTC (PX26, DX10) noting that an RTC contractor, Control Associates, had billed and had been paid far more money than its contract or RTC's budget allowed. In his e-mail, Dunn asked the addressees whether anyone had approved these overpayments. Boyer, who was then his supervisor, responded by e-mail the same day, noting that Dunn had raised interesting questions but exhorting him to work with and insure the cooperation of the Contracts Administration department.
4. On April 24, 1992, Dunn made an anonymous telephone call to the FDIC/RTC telephone "hotline," an organ of the office of Inspector General established to receive ethical inquiries or complaints. In that first call, and in a number of later anonymous telephone calls, Dunn expressed concerns about the planned and imminent downsizing of RTC's office in Valley Forge, Pennsylvania, where Dunn was then assigned, and about personnel issues at that office.
5. Dunn did not mention his Control Associates over-billing allegation in his hotline calls, nor did he raise the subject of Control Associates with anyone in the Office of Inspector General until November 5, 1992. (Dunn did raise his concerns about Control Associates with an ethics officer during the summer of 1992, and he followed up at a meeting with a Mr. Mooney at the end of August 1992. Dunn's testimony (the only evidence on these contacts) was that he found the ethics officer "somewhat supportive," but that he was not successful in achieving what he wanted, which was a general audit of Control Associates' performance.)
6. In July, 1992, Dunn sent an e-mail (DX45) to an RTC manager, Allan Morehead, complaining about a reorganization that would change his responsibilities. This e-mail evidently offended Dunn's immediate supervisor John Walsh (PX42).
7. At the end of August 1992, Leonard Boyer prepared an annual performance appraisal for Dunn. Boyer had not been Dunn's supervisor for several months, but Walsh asked him to do the appraisal. The appraisal was distinctly unfavorable and contained, among other things, the observation that Dunn involved himself in matters "best left to others." This appraisal was delivered to Dunn sometime in September 1992. Dunn complained to Boyer about the appraisal and asked that it be changed or improved. On October 5, 1992, Boyer refused (DX17). On the same day, Dunn was given notice that his temporary appointment would expire in 90 days (DX36).
9. On November 5, 1992, Dunn made another complaint to the OIG hotline. This time, he asked for and was given a meeting, and he abandoned his anonymity. At this meeting Dunn raised and complained about the contracting irregularities he had previously brought to the attention of his superiors, and he asserted that his unfavorable performance appraisal had been given in retaliation for his earlier hotline calls about downsizing and personnel issues. According to Dunn, the OIG's reaction was that it would deal with his allegations against Control Associates but that, "if you want to argue out with management what is happening to you, go a different route," namely, the route of the grievance process.
10. On November 12, 1992, Dunn filed a formal grievance (PX11, DX7), complaining that his performance appraisal was nonspecific and retaliatory. The grievance was brought to the attention of Stephen Haley, a high level manager at RTC. Haley's first response was to direct Dunn's supervisors to provide specifics, which they immediately did. Haley then convened a meeting in the Newark Airport with Dunn's supervisor, John Walsh, and with Robert Smedley. At that meeting, according to Haley, the decision was made to move Dunn from working on closings to working on conservatorships in order to give him ...