Simmonds v. Government Employees' Service Commission

375 F. Supp. 934, 10 V.I. 439, 1974 U.S. Dist. LEXIS 8533
CourtDistrict Court, Virgin Islands
DecidedMay 15, 1974
DocketCiv. No. 269/1973
StatusPublished
Cited by8 cases

This text of 375 F. Supp. 934 (Simmonds v. Government Employees' Service Commission) is published on Counsel Stack Legal Research, covering District Court, Virgin Islands primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Simmonds v. Government Employees' Service Commission, 375 F. Supp. 934, 10 V.I. 439, 1974 U.S. Dist. LEXIS 8533 (vid 1974).

Opinion

YOUNG, District Judge

MEMORANDUM OPINION AND ORDER

This case presents interesting questions of constitutional law under the doctrine of the companion Supreme Court cases, Board of Regents v. Roth, 408 U.S. 564 (1972) and Perry v. Sindermann, 408 U.S. 593 (1972). The dispute arises from the dismissal of the plaintiff Alphonso Simmon ds from his government construction job, for cause, on February 20, 1973. Thereafter plaintiff sought injunctive relief and a declaratory judgment that (1) he was entitled to a full hearing as a matter of due process; and (2) that 3 V.I.C. § 530 was unconstitutional because its provision of a dismissal hearing for “regular” but not “temporary” employees violated equal protection. Upon the Government’s motion to dismiss, I upheld the reasonableness of this distinction made by § 530 but permitted plaintiff to go forward in an effort to prove an interest in his employment sufficient to invoke due process. 2 St.X. Supp. 520 (1973).

On April 4, 1974, defendant moved for summary judgment on the grounds that plaintiff had been given an administrative hearing before his dismissal that satisfied rudimentary due process. This motion was supported by an affidavit of Commissioner Harding, who alleged he had *442 given plaintiff an informal predismissal hearing. No decision was made on this motion, the effect of which will be discussed later, and the cause came on for an evidentiary hearing April 18, 1974. I shall proceed to discuss the several issues of law and fact raised at this hearing.

I. PROPERTY INTEREST

The evidence was undisputed that plaintiff was continuously employed by the Government from 1968 to 1973. Furthermore, although plaintiff testified that he was in doubt as to his status, the documentary evidence adduced by the defendant clearly showed that throughout this period plaintiff was classified or intended to be classified, as a “temporary” employee, or that he was employed through oversight without authorization.

In a legal analysis of this employment relationship, it must first be observed that the Roth Court rejected the subjective “expectancy” test championed by the Fifth Circuit in Ferguson v. Thomas, 430 F.2d 852 (1970). Rather, a dismissed employee must have “a legitimate claim of entitlement to [continued employment],” 408 U.S. at 577, in order to implicate due process procedural rights. “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it.” Id. Therefore, as a commentator has well phrased it, “a recipient’s expectation or need, to qualify for due process protection, must be objectively justifiable. The Government in some manner must have indicated that the recipient could rely upon the benefit being continued absent a cause for termination.” Note, 86 Harv. L. Rev. 880, 890 (1973). However, this indication of permanence may be either explicit or implicit. See id. at 891; Morrissey v. Brewer, 408 U.S. 471, 479 (1973).

*443 Probing further, then, plaintiff’s qualifications for due process safeguards, the first consideration is whether hearing rights may accrue to him merely because of the almost five-year duration of his “temporary” employment. (Plaintiff testified he was also employed by the Government between 1962 and 1966 but all records of this employment are lost and plaintiff’s status then, if any, has not been satisfactorily established.) While the length of Simmonds’ employment is relevant, I do not believe that, without more, it alone can create due process rights. Cf. Government of the Virgin Islands v. Santos, 2 St.X.Supp. 552, 554 (1973). Thus in Sindermann, where the plaintiff had been employed for a period of ten years under a series of short-term contracts, the Court held that, by itself, his dismissal “did not . . . amount to a showing of a loss of property.” 408 U.S. at 599. Instead, the Court remanded the case for an evidentiary hearing to determine whether “existing rules or understandings” created a property interest.

Were there any “rules or understandings” which might create a property interest here? To begin with, it must be admitted that the terms of plaintiff’s employment are rather ambiguous. In plaintiff’s original “Certificate of Appointment,” dated August 8, 1968, it is stated that his “temporary” appointment is pursuant to 3 V.I.C. § 528. However, this section appertains to “provisional,” as opposed to “temporary,” employees; the term of a provisional appointment is limited to six months, after which the employee must become a “regular” employee or be terminated. Mr. Leslie A. Millin, Director of Personnel, testified that the allusion to § 528 was an error, and that plaintiff should have been appointed pursuant to V.I. Rules & Regs. § 452-132. This testimony is somewhat borne out by the fact that the Certificate’s term was one *444 year, the maximum term for temporary appointments under § 452-132.

At the expiration of this one-year period, plaintiff’s “temporary” appointment was renewed, although such renewals are not specifically provided for. The renewal document termed itself an “extension of] Temporary Appointment until such time as Permanent Status is authorized”; the renewal expired June 30, 1970. June 30, however, came and went and plaintiff continued unaffected on the teeming Government “pork barrel.” As to this anomaly, Millin testified that plaintiff’s job should have ended June 30, 1970, but that, through a clerical error which was still undiscovered at the time of dismissal 32 months later, it did not. To anyone familiar with the Virgin Islands bureaucracy this is an entirely plausible explanation. Still, plaintiff may, not without reason, complain that these errors and misstatements created in him a legitimate anticipation of a certain de facto permanency. Cf. 408 U.S. at 602.

Against such various indicia of permanency stand several salient facts. First, plaintiff never in fact achieved permanent status. Indeed, V.I. Rules & Regs. § 452-132 provides that “[n]o temporary appoint[ee] . . . shall gain regular status during the term of his temporary appointment.” Furthermore, the plaintiff testified that he never made any efforts to qualify as a regular employee through the procedures in 3 V.I.C. § 521 et seq.; V.I. Rules & Regs. § 452-91 et seq. Plaintiff admits that he was never told that he was, or would become, a regular employee. Likewise, he never obtained such indications of permanency as rating reports or a probationary period, which are reserved for regular employees.

Plaintiff does point to the fact that retirement contributions were deducted from his pay during the latter stages of his employment. Technically, temporary employees are *445 not subject to retirement deductions, or these deductions, if made, are returned to them at the end of their temporary appointment, 3 V.I.C. § 702.

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Bluebook (online)
375 F. Supp. 934, 10 V.I. 439, 1974 U.S. Dist. LEXIS 8533, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simmonds-v-government-employees-service-commission-vid-1974.