Berenguer v. Dunlavey

352 F. Supp. 444, 82 L.R.R.M. (BNA) 2368

• Court: District Court, D. Delaware
• Decided: December 27, 1972
• Docket: Civ. A. 4460
• Status: Published

Opinions

OPINION

LATCHUM, District Judge.

In this civil rights action, the plaintiffs seek declaratory and injunctive relief. The plaintiffs are, or were at the time suit was brought, employees of the Delaware Department of Health and Social Services, Division of Adult Corrections, Section of Probation and Parole. The defendants¹ are all duly elected or appointed officials of the State of Delaware. The plaintiffs, on behalf of themselves and all other employees² of the Probation and Parole Section, seek a declaration of unconstitutionality of, and an injunction against the enforcement of Section 33 of House Bill No. 676 (“Section 33”). Among other reasons, the plaintiffs contend that Section 33 deprives them of the equal protection of the laws guaranteed by the Fourteenth Amendment. Plaintiffs maintain that the defendants by enforcing Section 33 are acting under color of state law in violation of 42 U.S.C. § 1983 to deprive them of their constitutional rights.

Jurisdiction is conferred upon this Court³ by 28 U.S.C. § 1343(3) and (4).

On August 18, 1972 the named plaintiffs⁴ were either summarily discharged from state employment or placed on probation effective September 8, 1972. The notices of dismissal or probation did not assign reasons for the action taken nor did they provide for a hearing. The plaintiffs filed the present action on September 1, 1972. On September 5, 1972 the Court entered an order temporarily restraining the defendants from taking any action under Section 33 until the Three Judge District Court could consider the question.

In the matter presently under consideration, the defendants have moved for summary judgment on the ground they are entitled to judgment in their favor as a matter of law.

The undisputed record now before the Court reveals: On June 15, 1965, the State of Delaware adopted an Act granting the right to all public employees freely to organize and designate representatives of their own choosing for the purpose of collective bargaining with public employers. 19 Del.C. §§ 1301-1312. Effective July 1, 1966, Delaware by law established a system of personnel administration based on merit principles and scientific methods governing employees of the State in the classified service. 29 Del.C., Chapter 59. Employees of the Probation and Parole Section were covered by both acts. They, like the great majority of other Delaware State administrative employees, enjoyed the right to organize, the security of tenure, the right to receive reasons for dismissal or probation, the right to receive uniform pay within job classifications, the right to transfer positions within the system, and the panoply of other rights relating to working conditions.

On July 1, 1972, the Delaware General Assembly passed House Bill No. 676,⁵ “An Act Making Appropriations For The Expense Of The State Government For The Fiscal Year Ending June 30, 1973.” Section 1 of House Bill No. 676 appropriated operating funds to the various state departments and agencies for that fiscal year. An appropriation of $706,215 was made for the operation of the Probation and Parole Section. However, Section 33 of the Act conditioned this appropriation by providing:

“The appropriations provided in Section 1 of this Act for the Probation and Parole Section of the Division of Adult Corrections under the Department of Health and Social Services are conditional upon the complete reorganization of the staff, including dismissals, replacements, transfers, hirings, and new management to become effective no later than July 1, 1972. For the purpose of providing complete flexibility in implementing such reorganization the provisions of Title 19, Chapter 13, Section 1301 through 1311 and Title 29, Chapter 59 are hereby suspended and made inapplicable immediately through and until July 1, 1973 as they may apply to any and all employees of said Probation and Parole Section, with all final decisions resting with the Secretary of Health and Social Services, and without further recourse for any reason at law or otherwise by or on behalf of any and all employees within the Probation and Parole Section. Effective immediately, no employee of said Probation and Parole Section shall be or become engaged in any outside employment with a commercial or industrial business or service, if such employment interferes with the proper performance of his regular duties as determined by the Secretary of Health and Social Services.”

The language used in Section 33 prima facie deprived all of the employees of the Probation and Parole Section including the named plaintiffs of valuable rights conferred upon state employees by the merit system act and the act granting the right to organize and bargain collectively. Moreover, Section 33 also foreclosed further recourse for any reason at law or otherwise by such employees.⁶ Section 33 applies only to the employees of the Probation and Parole Section. It has no effect whatsoever upon the many other state employees in the classified service. The purported legislative purpose behind the statute is found in the language of the statute itself, namely that in order to formulate a reorganization of the Probation and Parole Section, the rights theretofore given to employees of that Section under the merit system act and the right to organize act were to be suspended.

Some of the more important rights accorded to state employees under the merit system act, 29 Del.C., Chapter 59, are uniformity of classification, uniform pay plan, competitive examinations for positions, criteria for determining promotions, eligibility lists for advancement, right to interdepartmental transfers, maintenance of performance records, right to appeal a discharge, procedure for filing grievances, and right to time off with pay.

The Court is unable to see how “reorganization” of the Probation and Parole Section, which ordinarily implies that employees will be transferred, a different chain of command established, duty assignments changed, etc., will be facilitated by the suspension of merit system rights. Of all the merit system rights, it would appear that the only ones whose suspension might aid implementation of a reorganization would be the provisions for a uniformity of classification and a uniform pay plan, since these provisions relate to the responsibilities and duties assigned to an occupational position and those particular characteristics will be in a state of flux during the reorganization. Suspension of the remaining merit system rights would not appear to aid implementation of a reorganization.⁷

This lack of rational connection between the suspension of all merit system rights and the implementation of a “reorganization” convinces the Court that the State Legislature was really providing the administrative authorities with the power to dismiss employees of the Probation and Parole Section for little or no reason and without any appeal procedure. This sort of conduct is impermissible. There is an available procedure for dismissing state employees for cause without denying them the protection of the merit system. That it may be more time-consuming than a summary dismissal is not a sufficient basis for denying some state administrative employees the procedural safeguards of the merit system while affording them to others. While a state has discretion in the selection of the privileges and rights it will confer on different classes of employees, the classification chosen must be reasonable. The approach taken by Section 33 invidiously discriminates against one group of state employees and thus runs afoul of the Equal Protection Clause, which requires that any exclusion of public employees from benefits prescribed by statute shall not be “patently arbitrary or discriminatory.” Wieman v. Updegraff, 344 U.S. 183, 192, 73 S.Ct. 215, 219, 97 L.Ed. 216 (1952); see Orr v. Thorp, 308 F.Supp. 1369, 1372 (S.D.Fla.1969); cf. Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968).

The defendants suggested that the Legislature might have decided that the work done by the Probation and Parole employees was of a professional nature and since other professional type employees are in an unprotected class, placing the plaintiffs in the unprotected class was justified.⁸ The Court rejects this suggestion as without merit since Section 33 does not remove the employees permanently from the merit system as an excluded class, but merely for a period of a year. Clearly Section 33 was adopted to permit their removal without the procedural safeguards enjoyed by the vast majority of state employees.⁹

The provision of Section 33 which suspends the right of the Probation and Parole employees to organize also amounts to an arbitrary classification violative of the Equal Protection Clause for the same reasons as expressed above with regard to the merit system rights suspension. The defendants have made no showing, nor has the Court been able to discover on its own, a rational connection between suspension of the rights to organize, select representatives, and bargain collectively and the planned “reorganization.” Here again it appears to the Court that the suspension of these rights enjoyed by all other state employees, was, in reality, a measure intended to insure that summary dismissal of employees from the Probation and Parole Section could occur without objections from any such organization.

Accordingly, the Court concludes, based on the present record that Section 33 is unconstitutional in so far as it suspends the operation of the provisions of 19 Del.C., Chapter 13, §§ 1301 through 1311 and 29 Del.C., Chapter 59 with respect to the employees of the Probation and Parole Section and the defendants’ motion for summary judgment therefore must be denied.

1 . The named defendants are the Governor, the Secretary of the Department of Health and Social Services, the Director and Deputy Director of the Department of Adult Corrections and the members of the State Personnel Commission.

2 . There are approximately 56 employees of the Probation and Parole Section.

3 . Since the complaint alleged the unconstitutionality of a Delaware statute and requested declaratory and injunctive relief, this Three Judge District Court was designated by Chief Judge Seitz pursuant to 28 U.S.C. § 2281.

4 . Plaintiffs Berenguer, Tarkenton, Trujillo and Robb were discharged and plaintiff Sharp was placed on probation.

5 . The full number of the bill was House Substitute No. 1 for House Bill No. 676 as amended by House Amendment No. 6 and Senate Amendments Nos. 3, 4, 5, 6, 8, 10, 11, 13, 15, 16, 22, 23, 24, 27 and 33. (“House Bill No. 676”).

6 . The use of the language “without further recourse for any reason at law or otherwise” is so broad that it could be construed to arbitrarily deprive the plaintiffs of not only their administrative rights conferred by the merit system but also their right to raise even constitutional issues by judicial appeal.

7 . In fact several of the merit system requirements, such as right to interdepartmental transfers, competitive examinations for position, criteria for determining promotion, eligibility lists for advancement and maintenance of performance records would actually be very relevant and helpful in an attempted stratification of tlie Probation and Parole Section. The transferal right would enable the employees whose qualifications no longer fit their revised job classifications to seek employment in another department of the state. The. latter merit rights actually provide performance data which would aid in determining who was qualified for the reorganized positions.

8 . Under 29 Del.C. 5903, 19 classes of employees are exempted from merit system coverage, such as policy-making heads of departments, state attorneys, and employees of the judiciary.

9 . Our finding that the record, as submitted requires a determination that § 33 violates the plaintiffs’ right to equal protection makes unnecessary any discussion of the parties’ other contentions. See paragraphs 10 and 11 of the plaintiffs’ complaint, which provide, inter alia :

“10. . . . the plaintiffs . were deprived of their constitutional rights of the [sic] process of law .

“11. . . .

“(a) Section. 33 ... is too vague and ambiguous .

“(b) Section 33 [denies] the plaintiffs the right to due process of law .

“(e) Section 33 . is an ex post facto law .

“(h) Section 33 impairs the obligations of plaintiffs’ contracts with the State of Delaware for employment . . .”