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03/08/88 Thomas O. Barnes, v. Harold I. Small

March 8, 1988

THOMAS O. BARNES, APPELLANT

v.

HAROLD I. SMALL, GENERAL, ET AL. 1988.CDC.96 DATE DECIDED: MARCH 8, 1988



Edwards, Silberman and D. H. Ginsburg, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Appeal from the United States District Court for the District of Columbia, Civil Action No. 84-02569.

APPELLATE PANEL:

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SILBERMAN

Appellant Thomas O. Barnes was employed by the Department of Army, Military Traffic Management Command ("MTMC" or "agency") for approximately fourteen years prior to his removal in August 1983 because he wrote a series of letters to the MTMC commander containing numerous charges against other MTMC employees. At the time of his removal he held the position of computer programmer. He was a member of the American Federation of Government Employees, AFL-CIO, Local 909 since 1970, serving as an officer of the union from 1975 and as acting president from August 1980. Barnes' main activity as acting president involved representing employees who filed grievances and discrimination complaints. This is an appeal from a district court decision dismissing Barnes' claim that he was discharged in retaliation for representing a Title VII race discrimination complainant and sustaining a Merit Systems Protection Board decision that his discharge was justified and lawful. In this appeal, Barnes raises numerous issues, which require us to consider both constitutional and statutory protections afforded to federal employees. We affirm the decision of the district court that Barnes' discharge did not violate the Constitution, Title VII of the Civil Rights Act, or any federal labor relations statutes. I.

Barnes, as spokesman for or representative of MTMC employees, participated in two personnel proceedings in early 1983. In January he represented Harold Garnett in an appeal to the Merit Systems Protection Board ("MSPB" or "Board") after Garnett was terminated for repeated absence without leave. In his appeal, Garnett alleged racial discrimination by several of his superiors. Garnett was an employee of the 7th Signal, a part of the Army's Communication Command, and along with a number of other 7th Signal civilian employees was assigned to work in the same building as the MTMC, under a 7th Signal commander, MTMC staff furnished administrative support to 7th Signal employees located in the MTMC building, particularly personnel and equal employment opportunity counseling, so it was not unusual for Barnes to represent Garnett, even though Garnett was not an employee of the same agency. Two months after Garnett's hearing, Barnes, in his capacity as acting president of the union, attended a labor-management meeting concerning the downgrading of several MTMC positions. Also present at this meeting was Linda Cunningham, an MTMC management representative, responsible for administering labor relations programs. During the meeting, Barnes complained about the agency's failure to notify affected employees in a timely fashion; there followed one of many verbal disputes between him and Cunningham.

Roughly ten days after the March meeting, Barnes wrote six letters on union letterhead to General Bruen, the MTMC Commander, charging various MTMC employees, and especially Cunningham, with serious misconduct (including criminal behavior) in connection with these two personnel proceedings. *fn1 Barnes accused Cunningham of, inter alia, placing him under surveillance, "conducting [a] personal vendetta and slandering wildly," making false statements, and actually committing perjury on four separate occasions. Another MTMC staff employee was denounced for making a deliberately false statement, and a third was threatened with a charge of perjury. Barnes also claimed to have been criminally assaulted by MTMC's civilian personnel officer, Mr. Lee, and that agency records had been falsified to support 7th Signal's disciplinary action against Garnett.

Upon receipt of these letters, General Bruen ordered an investigation into the allegations to be conducted by Colonel Lawlor, an officer not personally involved in any incidents described in the letters and not acquainted with Barnes. Following his investigation, Colonel Lawlor prepared a written report stating he had found no evidence to substantiate Barnes' allegations.

In August 1983, after receiving advance notice of his proposed removal and an opportunity to respond, Barnes was dismissed for knowingly making false and malicious statements with intent to harm the authority, reputation, and official standing of other agency employees in violation of Army Regulation AR 690-700 (c 14), 751.A. Previously in 1981 Barnes had received a five-day suspension for the same offense; the applicable regulation specifies removal as the penalty for a second violation. Just as the one under consideration here, the 1981 violation arose out of Barnes' participation in personnel proceedings. On that occasion, during an informal Equal Employment Opportunity adjustment meeting, Barnes, who is white, made several derogatory statements, including a demeaning racial comment directed at an MTMC employee.

Barnes, asserting he was actually fired in retaliation for his representation of Garnett and his participation in the labor-management meeting, appealed his dismissal to the Merit Systems Protection Board and his union requested of the General Counsel of the Federal Labor Relations Authority to issue an unfair labor practice complaint against the MTMC. The Board upheld Barnes' dismissal, and the FLRA General Counsel declined to issue a complaint because "[Barnes'] statements contained in the letters were false and, when viewed in their totality, established that the acting president had knowingly engaged in flagrant misconduct failing outside the protection of the Statute." Joint Appendix at 287. Barnes then appealed the decision of the Merit Systems Protection Board to the district court. The district court reviewed that decision pursuant to 5 U.S.C. § 7703 (c) (1982), which provides that discrimination claims shall be "subject to trial de novo by the reviewing court" while other claims are reviewed on the record. His dismissal was upheld by the district court and Barnes now appeals that decision to this court. We turn first to Barnes' discrimination claim. II.

Appellant claims the agency violated Title VII of the Civil Rights Act by removing him in retaliation for his participation as Garnett's representative in a Title VII race discrimination proceeding. See 42 U.S.C. §§ 2000-03 (a), 2000e-16 (1982). In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-06, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), the Supreme Court set out the order of proof in Title VII cases. This framework also applies to claims retaliatory dismissal. McKenna v. Weinberger, 234 U.S. App. D.C. 297, 729 F.2d 783, 790 (D.C. Cir. 1984). "In order to establish a prima facie case of retaliation, a plaintiff must show: (1) that [he] engaged in a statutorily protected activity; (2) that the employer took an adverse personnel action; and (3) that a casual connection existed between the two." Id.

After a two-day trial, the district court concluded that Barnes had not made a prima facie case of reprisal, because, as the court concluded, writing and sending the letters did not constitute protected activity at all; according to the court the letters were unrelated to Barnes' activities as Garnett's representative. We may overturn factual findings of the district court only if "clearly erroneous," Pullman-Standard v. Swint, 456 U.S. 273, 290, 72 L. Ed. 2d 66, 102 S. Ct. 1781 (1982); FED. R. VIC. P. 52(a), and, we have previously noted, in Title VII cases the Supreme Court has been particularly forceful in admonishing Courts of Appeal not to exceed that limited standard of review. Bishopp v. District of Columbia, 252 U.S. App. D.C. 156, 788 F.2d 781, 785-86 (D.C. Cir. 1986); (citing Anderson v. Bessemer City, 470 U.S. 564, 573-576, 84 L. Ed. 2d 518, 105 S. Ct. 1504 (1985)). It is not completely clear, however, whether a determination that a plaintiff has failed to make out a prima facie case is a question of fact governed by the clearly erroneous standard of review or a question of law subject to review de novo. See, e.g., Hagans v. Clark, 752 F.2d 477 (9th Cir. 1985).

In this case, however, we think the district court's conclusion that the letters were unrelated to Barnes' representation of Garnett was a conclusion of law, and so not entitled to deference. This is so, because the determination largely depended upon an interpretation of Title VII, which prohibits retaliation against any employee because "he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). The district court observed that one of the six letters did not even concern Garnett, while the rest did not specifically request relief for Garnett and contained allegations unrelated to Garnett's appeal. The court therefore concluded the writings did not fall within the protection of the statute.

We think this legal conclusion is incorrect. The statutory prohibition against discrimination is very broad, protecting an employee who "participate[s] in any manner" in a Title VII proceeding. Since at least five of the letters alleged wrongdoing during the Garnett hearing, and if credited, might have moved General Bruen to take action favorable to Garnett, it seems to us they clearly were part and parcel of Barnes' representation of Garnett. Nor do we think it of any significance, contrary to the district court, that Garnett, an employee of 7th Signal, was not under General Bruen's command, for the management personnel of whom Barnes complained were subordinates of the General. Barnes had represented employees in the past (and could be expected to have continued to do so in the future) in proceedings in which the same individuals would have represented management. If General Bruen had become convinced that his subordinates had misbehaved in the Garnett case, it is likely he would have taken action to prevent any future similar occurrences. Even had there been no ...


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