Anita J. Ring v. Honorable James R. Schlesinger and Honorable John W. Warner , 502 F.2d 479 ( 1974 )

ROBB, Circuit Judge

(dissenting):

As I read the opinions in Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) the Supreme Court would probably hold that Mrs. Ring had an “expectancy of job retention” or property interest that could not be terminated without procedural due process. I agree with the majority however that Mrs. Ring was accorded procedural due process. An adversary or full eviden-tiary hearing was not necessary. Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974); Arnett v. Kennedy, supra.

In seeking to wrap Mrs. Ring in the mantle of the First Amendment, the majority focuses only on the statements which she circulated, and assumes that these were the sole basis for her dismissal. The record discloses however that the dismissal was not based on such narrow grounds. She was dismissed because she was the cause of intolerable friction, discord and disruption in the Midway school system.

As the majority opinion notes, the School Advisory Board investigated the allegations made by Mrs. Ring and the other two teachers. The record shows that the Board gave careful consideration to the matter, meeting on five separate days, interviewing Mrs. Ring and other teachers, and reviewing records, reports and written statements. At the conclusion of its investigation the Board reported in part:

(9) That the teachers residing in the WOQ (Miss Schnieder, Mrs. Garnet, Mrs. Cudo, Miss Urban, Miss Miller, Miss Andrus) consider these letters to be malicious, unfounded, unethical and unprofessional in both content and means of transmission. * X X X- X- X

(11) That Mrs. Ring: X -X X- X X- X

(g) Has consistently and publicly spoken in a derogatory manner of her administrative superior, Mr. Bushman.

(h) Has consistenly [sic] and publicly spoken in a derogatory manner of the school, the station, station personnel, the Navy and the military service.

(i) Has been the subject of discussion by the principal, the Schools Officer and the Executive Officer throughout the school year for her inability to maintain classroom discipline, her apparent dislike for her students, and her inability to successfully carry out voluntary tasks, ie., [sic] Reef Reporter, Senior Advisor, Drama Club. That she was not recommended for termina-

tion early in the school year solely due to the paucity of qualified teachers.

(j) Has consistently stated that she intends to “Get Bushman.”

(k) Admitted to the Board that her reason for forwarding the subject instruments to other officials was “to get something in Bushman’s jacket.”

(Z) Instigated, collected and forwarded the instruments. That her statement is generalized, incomplete, intentionally half-true; that it was designed to discredit and injure an individual, rather than to “improve the school.” That these instruments, as well as statements made by her, are defamatory and slanderous to her superior.

The Board concluded:

It is the opinion of the Board that Mrs. Ring has, throughout the school year, sought to undermine the school principal; that she has knowingly and intentionally sought to do him professional injury; that she instigated and supervised the preparation of the statements, and forwarded them to various agencies outside this command in an effort to bring disrepute upon her administrative superior; that her actions are malicious and vindictive; that her statements, both oral and written are slanderous and defamatory, and have caused friction and disruption of the school faculty, and have adversely affected school administration.

The Board recommended that:

Mrs. Ring’s employment as a secondary teacher be terminated at the earliest possible opportunity, by reason of undesirable suitability characteristics. [J.A. 113,114,115,117,118].

Captain Savacool, Commanding Officer of the Midway Naval Station, notified Mrs. Ring in writing that it was proposed to terminate her services. The notification stated in part:

1. You are hereby notified that it is proposed to terminate your services as Teacher (Secondary) as of 20 May 1966. The proposed termination action is in accordance with reference (a) which provides for the separation of an employee during the trial period if it becomes apparent that the employee has undesirable suitability characteristics. You have made statements which were slanderous and defamatory about the officials of the Dependents’ School on Naval Station, Midway Island; and you have transmitted these slanderous and defamatory statements by letters to several persons in other locations. These statements have created friction and discord among the school faculty and have seriously hampered the proper administration of the school system.

Mrs. Ring filed an eightrpage single-spaced typewritten reply to Captain Sa-vacool’s notification that he proposed to terminate her services. Responding in particular to the allegation that her “statements have created friction and discord among the school faculty and have seriously hampered the proper administration of the school system” Mrs. Ring said in part:

a. I did not create the friction and discord. Friction and discord preceded the statement by several months.

b. If proper administration of the school system was seriously hampered as a result of the friction and discord growing out of 17 April statements, it was not friction and discord created by my statement alone. Mr. Bushman at an 18 April faculty meeting en-flamed the faculty and increased friction and discord.

c. Also friction and discord grew out of distortions of my 17 April statement, out of distortions of my reasons for making the statement, and out of other statements made in confidence to officers of the School Board.

d. Even though the 17 April statement did increase friction and discord, I had to make it to meet professional obligations to student, community, and the profession.

(1) These statements did not create friction and discord. There was friction and discord between Mr. Bushman and among teachers with whom I share quarters long before my 17 April statement. * * *X* # * -X-

Friction and discord existed between me and some of the teachers long before 17 April. Our personalities are different. Thrown together constantly in the small Midway community, clashes were inevitable. The 17 April statement may have aggravated the problems or brought them to light, but it did not create them. ->:■ * -X- * *

(2) Your charge that my statement created friction and discord among the faculty and seriously hampered proper administration of the school is general and therefore difficult to cope with in specific terms. I have said that friction existed among the teachers and between the principal and myself for many months. That this was increased in the past month is not disputed, but the cause of the greater friction is not entirely due to my statement. Much of the friction after 18 April was created by Mr. Bushman in a faculty meeting held that afternoon. He enflamed the teachers and encouraged friction and discord by misquoting statements made by Janice Faris, by telling half-truths, or outright lies. * -X- * X- -X -X-

(4) I knew that my statement would make some teachers unhappy. I have explained earlier that, not wanting to cause unnecessary conflict, I cooperated in giving a party I did not wish to give. I have made other compromises to avoid conflict. But I had a professional responsibility to make the statement about Mr. Bushman and I could not compromise my principles just to avoid conflict. [J. A. 125, 126, 127]. (Emphasis in original.)

From this record, and in particular from Mrs. Ring’s reply to Captain Sava-cool’s notification, he was quite justified in concluding that she was an abrasive and disturbing element on the base. Her written statements were only the concluding item in a pattern of conflict and discord. As Mrs. Ring said:

Friction and discord existed between me and some of the teachers long before 17 April. Our personalities are different. Thrown together constantly in the small Midway community, clashes were inevitable. The 17 April statement may "have aggravated the problems or brought them to light, but it did not create them.

I agree with the district judge that “It is not for this Court to second-guess the judgment of the Commanding Officer who had before him all of the evidence submitted in this case and far greater first-hand knowledge of the needs of those under his command.” [J.A. 154. The District Court’s opinion is not reported.] The Supreme Court in Sampson v. Murray, 415 U.S. 61, 94 S. Ct. 937, 39 L.Ed.2d 166 (1974), recognized “the well established rule that the Government has traditionally been granted the widest latitude in the ‘dispatch of its own internal affairs. . ’ ” In my opinion the decision of the majority violates this rule.

Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), relied upon by the majority, does not justify its decision. Pickering was a school teacher in Illinois. He wrote and published in a newspaper a letter criticizing the School Board and the Superintendent of Schools. Charging that many statements in the letter were false and unjustifiably impugned the Board and the school administration, and that publication of the letter was detrimental to the efficient operation of the schools, the Board dismissed Pickering. There was no evidence as to the effect of the letter on the community as a whole or on the administration of the school system in particular. The Supreme Court held that Pickering’s right to freedom of speech had been violated. The Court declined to lay down a general standard against which statements by teachers critical of their superiors might be judged; but the Court did indicate certain factors or questions which should be considered in “evaluating the conflicting claims of First Amendment protection and the need for orderly school administration.” 391 U.S. at 569, 88 S.Ct. at 1735. These were:

1. Whether the statements were directed towards the person with whom the teacher would normally be in contact in the course of his daily work as a teacher, so that there was a question of maintaining discipline by immediate superiors or harmony among co-workers.

2. Whether the employment relationships with the Board and Superintendent were the kind of close working relationships which required personal loyalty and mutual confidence.

3. Whether the publication damaged the professional reputations of the Board and the Superintendent and would foment controversy and conflict among the Board, teachers, administrators and the residents of the district. The Supreme Court found that none of these elements was present in Pickering’s case.

I find decisive differences between the facts in the Pickering case and the case before us. Pickering sent his letter to a newspaper in the State of Illinois. Mrs. Ring’s activities occurred on a remote naval outpost located on a tiny atoll in the Pacific. Midway is an atoll consisting of two islands, having a total area of two square miles. As Mrs. Ring said in her answer to Captain Savacool, people on the station were “[tjhrown together constantly.” The Supreme Court found that “Pickering’s letter was greeted by everyone but its main target, the Board, with massive apathy and total disbelief.” 391 U.S. at 570, 88 S.Ct. at 1736. Mrs. Ring, on the other hand, admitted that her statement at least aggravated the friction and discord between her, the other teachers, and the Superintendent.

As commanding officer Captain Sava-cool was required to maintain discipline and efficiency on his station. I think it blinks reality to say that the removal of Mrs. Ring was not consistent with that duty; and in my opinion it was also consistent with the Constitution.

I would affirm the judgment of the District Court.