Francis M. Fiorillo v. U.S. Department of Justice, Bureau of Prisons

795 F.2d 1544, 1986 U.S. App. LEXIS 20291

• Court: Court of Appeals for the Federal Circuit
• Decided: July 2, 1986
• Docket: Appeal 85-1955
• Status: Published

Opinions

JACK R. MILLER, Senior Circuit Judge.

Francis M. Fiorillo petitions for review of an arbitration decision, FMCS No. 83K/26986, November 14, 1984 (Chance, Arbitrator), in which the arbitrator sustained the action of the Bureau of Prisons (“agency”) suspending and demoting petitioner. We affirm.

BACKGROUND

None of the facts is in dispute. Petitioner, the grievant below, is a Correctional Officer with the agency at the Federal Correctional Institute at Terminal Island, California. Before July 24, 1983, he was a Senior Officer Specialist, GS 007-8. A Senior Officer Specialist has contact with many inmates and works independently with only a minimum of supervision and at times trains and supervises lower level correctional officers. A Senior Officer, the position to which petitioner was demoted, has fewer responsibilities and a commensurate lower salary, GS009-7.

For several years prior to the conduct which is the basis of the agency’s adverse action, petitioner had made some allegations of impropriety on the part of the supervisory staff of the prison, both privately (to prison and other federal officials) and to the press. Some of the statements were determined to be well-founded and some were found not to be; petitioner was disciplined at least once for an ill-founded allegation. It is not contested that during those years there were allegations (by persons other than petitioner) of wrongdoing at the prison which were made public and that such public allegations were not uncommon.

Beginning in the fall of 1982, petitioner made requests for a regular assignment to an “outside” post to alleviate a high blood pressure condition chronicled by both the prison medical staff and petitioner’s private physician. (Such a post apparently involves the patrol of the perimeter of the prison to watch for attempted escapes and requires little contact with inmates and other staff and no supervisory responsibilities.) On November 4, 1982, petitioner asked the warden, Jerry T. Williford, for assignment to an outside post because he believed that there was a conspiracy among the staff to “frame or discredit” him and because the prison’s medical staff had recommended that he seek medical attention for his high blood pressure. Williford placed petitioner on leave with pay stating that he was concerned about the effectiveness of petitioner’s performance of his duties.

On November 11, 1982, petitioner sub¹ mitted a letter from his private physician stating that petitioner suffered from high blood pressure and that, if petitioner were to retain his then-present assignments, his health would be put at risk. The next day, Williford ordered petitioner to submit to medical and psychiatric fitness-for-duty examinations. All of these were negative, although the agency-designated psychiatrist suggested that petitioner be maintained at the outside post to be removed from staff involved with petitioner in a pending lawsuit.

On December 23, 1982, the acting warden ordered petitioner back to duty with no restrictions. On March 23, 1983, petitioner again requested, and was denied, duty at an outside post. On April 1, 1983, petitioner’s physician gave petitioner a letter stating that he had examined petitioner and “placed him on total disability until May 2, 1983. My diagnosis ... is Hypertension, which is definitely job-related.” Although the physician would not give Williford information concerning petitioner over the phone, he agreed to answer the warden’s questions posed in writing. However, he never responded when these were sent to him on May 27, 1983.

On April 26, 1983, petitioner initiated litigation in the United States District Court for the Central District of California¹ against the Bureau of Prisons and individual prison employees, alleging improper, retaliatory discipline by the agency (placing him in “locations at [Terminal Island] which would be more stressful than the already stressful location” in which he was working). He alleged that this action resulted in “career impairment” arising in part from the agency’s failure to respond to alleged examples of “corruption” he had discovered in the prison and had disclosed. While off-duty, he informed the press of his action, and, on April 27, five or six local papers published articles about his case including some disparaging comments by him about the prison, the staff in general, and his chances for career advancement.

On May 4, 1983, while petitioner was on approved sick leave, he hand-delivered two memoranda to the warden concerning alleged incidents that occurred at the facility in 1980 and 1982. Afterwards, he visited and spoke with several of the staff while they were on duty.

On June 13, 1983, the warden gave notice to petitioner of his proposed suspension and demotion to Senior Officer, based on three charges: (1) misuse of sick leave, (2) unwillingness to perform his job, and (3) conduct which undermines the efficient operation of the institution. With respect to the latter, three specifications were stated in support of the proposed adverse action: first, that petitioner’s visit with other staff members (while he was on approved sick leave) was distractive and caused them to be inattentive to their duties; second, that petitioner had asserted that some of the other staff members were conspiring to discredit him; and third (the decisive issue here), in the warden’s words,

[o]n April 27, 1983, two local newspapers published articles in which you were quoted expressing your personal opinions about the integrity of staff of this institution and about your own chances for promotion. Your statements reflect negatively on this institution and damage the public’s confidence in our ability to carry out our mission. Further, Program Statement 1480.2[²] and Institution Supplement 1480.2, both prohibit staff members from releasing information to the news media. I am aware that you have initiated contact with representatives of the press on several occasions and offered your personal opinions about operations and management of this institution. Your actions are a violation of Federal Prison System policies on contacts with the news media and they are also in direct violation of my specific instructions to all staff at a general recall that staff members are not to contact the news media unless specifically designated by me to make such contact. By expressing your personal opinions for publication, you have also refused to conform with Federal Prison System standards of employee conduct which require you to avoid any action which might reflect adversely on the Government.[³]

Later in the same notice, Williford stated that:

The allegations you have made have all been thoroughly investigated by this and other agencies. Your refusal to accept the results of the investigations and your continuing to raise these issues forms the basis for this charge.

Also in the same notice was the warden’s statement that:

Your actions which have undermined the efficient operation of the institution demonstrate that you have not been supportive of this or previous administrations. Federal employees have numerous appeal procedures which can be used to resolve complaints, yet you have chosen to air your grievances in a public forum which has reflected negatively on this facility and the integrity of its staff____ [B]y your actions specified in these charges, you have not demonstrated ... required personal qualities.

On July 19, 1983, the Regional Director of the agency sustained the charges alleged by Williford, stating:

After careful consideration, I find the charges sustained and fully supported by the evidence in the adverse action file____ Your actions in this matter have damaged your credibility and effectiveness as a correctional worker and I believe these actions will have the desired corrective effect.

Petitioner’s suspension and demotion were effective July 24, 1983. He then grieved his case, pursuant to the negotiated grievance procedures provided in his union’s collective bargaining agreement with the agency, and the matter was assigned for arbitration.

The arbitrator denied petitioner’s grievance. However, he explicitly refused to sustain the first and second agency charges above relating to petitioner’s sick leave misuse and his alleged unwillingness to perform his job. With respect to the first charge, the arbitrator concluded that it “was not only based upon a de minimis act, but is contrary to the Agency’s own operating instructions and is not a valid reason for suspension or demotion.” Regarding the second charge, the arbitrator concluded that although petitioner “demonstrated a continuing reluctance to continue his inside assignments ... he was within his contractual rights to do so, and could reasonably expect ... consideration for what his physician concluded was a job-related illness.” The agency has not cross-appealed from the decisions on those charges.

With respect to the third charge, the arbitrator discussed petitioner’s contention that the First Amendment protected his statements to the press and that the adverse action was a reprisal for petitioner’s “whistleblowing,” concluding that—

[t]he Agency did clearly established [sic], with a preponderance of evidence, that its action in suspending and demoting the grievant was for such cause as would promote the efficiency of the service, because, (1) he failed to comply with the Standards of Conduct, and (2)-he was relieved of some of the specific duties which separates [sic] a Senior Officer from a Senior Officer Specialist.

OPINION

Petitioner’s suspension and demotion by the agency were taken under Chapter 75 of Title 5 of the United States Code. Section 7513(a) provides in pertinent part that an agency may take a disciplinary action covered by the subchapter against an employee “only for such cause as will promote the efficiency of the service.” Chapter 77 of the same title, covering appeals from an employee’s adverse action under Chapter 75, applies to an appeal before either the Merit Systems Protection Board (“board”) or, as in this case, an arbitrator. Section 7701(c) provides that the agency bears the burden of proof in a Chapter 75 adverse action by a preponderance of the evidence. However, section 7701(c) further provides that:

(2) [T]he agency’s decision may not be sustained ... if the employee ...

(B) shows that the decision was based on any prohibited personnel practice described in section 2302(b) of this title; or

(C) shows that the decision was not in accordance with law.

Chapter 23 of Title 5, section 2302(b) sets forth prohibited personnel practices. The one relied upon by petitioner (subsection (8)) prohibits an agency from taking a personnel action in reprisal for:

(A) a disclosure of information by an employee ... which the employee ... reasonably believes evidences—

(i) a violation of any law, rule, or regulation, or

(ii) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,

if such disclosure is not specifically prohibited by law____

This court’s review of decisions by an arbitrator, as with those by the board, is limited.⁴ We may not arbitrarily substitute our views for those of the arbitrator, but must affirm unless we determine that the agency’s decision is unsupported by substantial evidence or is not in accordance with law. 5 U.S.C. § 7703(c) (1982); Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984).

As related above, only one charge of the three asserted was sustained by the arbitrator. Moreover, it can be inferred that, by ignoring two of the three specifications alleged to support that charge, the arbitrator did not find them supported by substantial evidence.⁵ In addition, the arbitrator’s action in sustaining the charge was erroneously based, in part, on an allegation neither proposed nor supported by the agency, viz., that the action was supported because petitioner “was relieved of some of the specific duties which separates [sic] a Senior Officer from a Senior Officer Specialist.” ⁶ Therefore, the issues proposed by the parties are limited to (1) whether the arbitrator’s decision sustaining the suspension and demotion of petitioner (based solely on petitioner’s failure to comply with the agency’s standards of conduct by his statements to the press) is unsupported by substantial evidence or is not in accordance with law, 5 U.S.C. § 7703(c), and (2) whether the arbitrator incorrectly found petitioner’s disclosures to the press to be unprotected speech under the First Amendment and, therefore, not afforded protection against reprisal by the agency under 5 U.S.C. § 2302(b)(8)(A).

The standards referred to in the notice of proposed removal and in the arbitrator’s decision (which standards apply to employees in petitioner’s position and were in effect well before June 13, 1983) are as follows:

Department of Justice Federal Prison System Institution Supplement No. TRM U80.2B

1. PURPOSE. To establish institution procedures to implement national policy regarding contacts with the news media.

3. RELEASE OF INFORMATION.

a. The Warden at Terminal Island, or the Executive Assistant to the Warden as Public Information Officer, is solely responsible for contact with the press. Other staff members shall refer all press inquiries to the office of the Warden or Executive Assistant. No other staff member is permitted to release information to members of the media on behalf of the institution,

and

Department of Justice Federal Prison System Program Statement No. 3320.5

6. POLICY: ... In general, the FPS expects its employees to conduct themselves in such a manner that their activities both on and off duty will not discredit either themselves or the agency.

[E]mployees shall:

a) Conduct themselves in a manner that creates and maintains respect for the Department of Justice and the U.S. Government. In all their activities, personal and official, they should always be mindful of the high standards of behavior expected of them.

b) Avoid any action which might result in, or create the appearance of, affecting adversely the confidence of the public in the integrity of the Government.

c) Discuss with their immediate superiors any problems arising in connection with matters within the scope of this policy.

We need not consider the statement in Warden Williford’s notice of proposed removal regarding petitioner’s alleged violation of the warden’s “specific instructions to all staff at a general recall,” because (a) the arbitrator did not address the statement; (b) the contention is not supported by any evidence of record that we can find; and (c) the parties do not address the statement in their briefs.

The Institution Supplement TRM No. 1480.2B does not purport to address the activity it is alleged to ban in this case. It speaks to the dissemination of material to the press “on behalf of the institution.” However, petitioner’s statements to the press were clearly not made “on behalf of the institution,” nor has the agency so alleged. Therefore, the agency’s allegation •that petitioner violated this Institution Supplement is not supported by the evidence.

What remains to support petitioner’s suspension and demotion is the “policy” enunciated in Program Statement No. 3420.5. This broadly prohibits conduct “which might result in, or create the appearance of, affecting adversely the confidence of the public in the integrity of the Government.” To this end, employees are expected “to conduct themselves in such a manner that their activities both on and off duty will not discredit either themselves or the agency.”

In the context of an adverse action against a public employee, the rights under section 2302(b)(8)(A) (prohibition of reprisal) and the First Amendment’s right to free speech have been considered coextensive rights. See Gerlach v. Federal Trade Commission, 8 M.S.P.B. 599, 9 M.S.P.R. 268 (1981). Cf. Jurgensen v. Fairfax County, 745 F.2d 868, 877-78 (4th Cir.1984) (employee’s reprisal defense was not section 2302(b)(8) per se). Because the agency is not competent to determine the constitutionality of a rule, regulation, or statute, Malone v. Department of Justice, 13 M.S. P.B. 81, 14 M.S.P.R. 403, 406 (1983), the decision at the board (or at the arbitrator) level is necessarily based upon evaluation of the employee’s actions in light of the applicable rules and regulations, and our review of the arbitrator’s decision is limited by 5 U.S.C. § 7703(c).

In this case, the arbitrator considered a Supreme Court opinion that discusses the limitations on a public employee’s right of free speech. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). More recently, the Court elaborated upon Pickering in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), which also discusses the First Amendment rights of a government employee. To establish a cause of action under the First Amendment, a public employee must demonstrate “(1) that the speech complained of qualified as protected speech ... and (2) that such protected speech or activity was the ‘motivating’ or ‘but for’ cause for his ... demotion.” Jurgensen, 745 F.2d at 878; Gerlach, 9 M.S.P.R. at 271 (both citing Mount Healthy City School Board v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977)). See 5 U.S.C. § 7701(c)(2)(B)). If the “speech” is not protected, it is unnecessary to scrutinize the reasons for the demotion. Connick, 461 U.S. at 146, 103 S.Ct. at 1689. Neither party here contests that petitioner’s communications to the press were the “motivating” cause of his demotion.

In determining whether the “speech” is protected, the task of the reviewer is “to seek ‘a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’ ” Id. at 142, 103 S.Ct. at 1687 (citing Pickering, 391 U.S. at 568, 88 S.Ct. at 1734-35). If petitioner’s public condemnation of the administration of Terminal Island is “ ‘a matter of legitimate public concern’ upon which ‘free and open debate is vital to informed decisionmaking by the electorate,’ ” id. at 145, 103 S.Ct. at 1689 (citing Pickering, 391 U.S. at 571-72, 88 S.Ct. at 1736), censure by the agency in the form of suspension and demotion cannot be condoned; whereas, if he spoke “upon matters only of personal interest, absent the most unusual circumstances,” this court “is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency.” Id. at 147, 103 S.Ct. at 1690 (citation omitted).

“Whether an employee’s speech addresses a matter of public concern must be determined by [its] content, form, and context ... as revealed by the whole record.” Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690 (footnote omitted). In addition, to be given “whistleblower” status and thus the protections under 5 U.S*C. § 2302(b)(8), the primary motivation of the employee must be the desire to inform the public on matters of public concern, and not personal vindictiveness. See 461 U.S. at 148, 103 S.Ct. at 1690. Here, the newspapers that quoted petitioner related his allegations (a) that a female inmate and a female employee were sexually attacked five years previously, (b) that breaches of national security had existed in the prison, and (c) that “the. prison is still ‘saturated with corruption.’ ” We are satisfied that the arbitrator did not err in determining that the record as a whole indicated that “the grievant’s motive for releasing such generalized and objurga-tory statements to the press was for personal reasons and not to inform the public of matters of general concern,” so that petitioner was not entitled to protection as a “whistleblower” under section 2302(b)(8). Although portions of petitioner’s “speech” to the press were related to items about which the public was concerned in years past, the “news”' was stale, and the newspaper articles were essentially the airings of petitioner’s personal complaints. Mere publication does not clothe them with First Amendment protection.

Petitioner’s attempt to parse the transmitted information to demonstrate that the “personal” attributes attached only to one or two sentences of the information miss the mark. It is the nature of the whole communication that must be reviewed to determine whether it is of “public concern” — not sentences taken in isolation. In this case, petitioner’s press conferences as a whole “reflect one employee’s dissatisfaction with [his supervisor] and an attempt to turn that displeasure into a cause celebre.” Connick, 461 U.S. at 148, 103 S.Ct. at 1691 (footnote omitted). A complaint “not otherwise of public concern does not attain that status because its subject matter could, in different circumstances, have been the topic of a communication to the public that might be of general interest.” Id. at n. 8.

In applying the balancing test, the Con-nick Court stated that it is not necessary for the agency to prove that the efficiency of the service would be promoted by the employee’s adverse action, but only that, under the circumstances, the potential harm is reasonably apprehensible. 461 U.S. at 151-52, 103 S.Ct. at 1692. In this case, the agency has demonstrated that petitioner possesses a propensity for making at least some baseless public allegations against the agency. The agency was not unreasonably concerned that petitioner’s statements would have adversely affected the discipline and morale at Terminal Island. Under the circumstances, deference to the agency’s judgment is appropriate. 461 U.S. at 151-52, 103 S.Ct. at 1692. Accordingly, we cannot fault the arbitrator’s determination that petitioner’s suspension and demotion would promote the efficiency of the service.

In view of the foregoing, the agency’s action in suspending and demoting petitioner is affirmed.⁷

AFFIRMED.

1 . CV 83-2612 R, subsequently dismissed September 17, 1984.

2 . Program Statement 1480.2 refers to inmate conduct and is clearly inapt. We do not discuss it further.

3 . The implicit citation here is to Program Statement 3420.5, discussed infra.

4 . An arbitrator applies the same substantive rules as the board. Accordingly, we apply the same standards of'review of an arbitrator’s decision as those applicable to an appeal from the board. DePauw v. United States Int’l Trade Comm'n, 782 F.2d 1564, 1565 n. 2 (Fed.Cir. Jan. 30, 1986).

5 . The agency does not contend that subsequent to the publication of the arbitrator’s opinion it made any attempt to have the arbitrator amend the opinion and decision with respect to these two specifications. Despite this failure, in its main brief before this court the Department of Justice asserts that each of the three specifications alleged to support the third charge was "properly supported by substantial evidence.’’ Were this so, it is unlikely that the arbitrator would have ignored or forgotten to mention them. Furthermore, it appears that the agency implies that, by failing to address those specifications in this court, petitioner has waived his right to overcome a determination based upon them. Petitioner has no burden here to contest determinations not made by the arbitrator.

6 . We do not find this assertion anywhere in the arbitrator’s summary of the agency’s position. Also, there is evidence of record which indicates that all or most correctional officers were rotated every several months between “inside duties" and “outside duties,” such that Senior Officer Specialists would routinely perform, on a temporary basis, duties normally assigned to Senior Officers. Letter dated Dec. 14, 1982 of D.H. Wilson, M.D., to P. Caplinger, Personnel Officer U.S. Department of Justice Federal Prison System, Federal Correctional Institution, Terminal Island, at p. 3. It appears that the arbitrator confused the evidence proposed for each charge.

7 . The dissenting opinion's statement that the majority decision "will have a chilling effect” on any employee who speaks out on issues of public concern simply ignores the factual premise of the majority decision. Its further statement that the majority decision does not protect free speech if the employee can be shown to have any personal motivation for speaking is a clear distortion of the majority opinion and the opinion in Connick v. Myers, supra.