Citations
- 375 F. Supp. 934
Full opinion text
ACTION FOR DECLARATORY JUDGMENT & INJUNCTION
MEMORANDUM OPINION AND ORDER
WARREN H. YOUNG, District Judge.
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, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). The dispute arises from the dismissal of the plaintiff Alphonso Simmonds 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 given plaintiff an informal pre-dismissal 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, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1973).
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. Santso, 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 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 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. I find it significant, in this regard, that at one point plaintiff asked his supervisor, Dowling, why retirement was being deducted. Although unable to explain this circumstance, by the plaintiff’s own testimony, Dowling informed plaintiff categorically that his status was that of a “temporary” employee. What is more, plaintiff’s retirement contributions were returned to him pursuant to his own request, after his discharge, which is consistent with his temporary status (although perhaps a self-serving act on the part of the defendant albeit, responsive). Finally, the deduction of retirement is easily explicable as an offshoot of the prodigious clerical error through which plaintiff remained on the payroll month after month without authorization.
Additionally, plaintiff argues that the very fact that the Government gave him some process upon dismissal (the precise nature of which is in dispute and will be discussed later) is an admission that plaintiff was not an ordinary temporary employee, who can be dismissed summarily without cause. I doubt that any such admission was intended. My view is that the provision of some informal procedures was a result more of the serious nature of the charges against plaintiff than of any consideration of plaintiff’s property interests in his employment.
In way of summary, it clearly appears that the cases for and against property rights vesting with the plaintiff through the conduct, or lack of it, of the parties are closely balanced. If I were limited to the instruction provided by Roth and Sindermann, I would indeed be faced with a quandary. Fortunately, however, I believe an answer to the question of property rights is found, or at least suggested, by traditional precepts of contract law.
Clearly, after the expiration of Simmonds’ second appointment with the Government an informal contractual relationship continued to exist between the two parties. True, there were no explicit conditions of employment. However, since the employment relationship, by its nature in this case, was subject to reciprocal performances, we can read into the agreement the constructive conditions that if one party performed then the other was entitled to reciprocal performance. See L. Simpson, Contracts 320-21 (1965); Restatement of Contracts §§ 251, 267. That is, Simmonds was entitled