Kostishak v. Mannes

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MICHAEL KOSTISHAK,
Plaintiff-Appellant,
v.
PAUL MANNES, Chief Judge;
No. 97-1500
JAMES F. SCHNEIDER, Bankruptcy
Judge; E. STEPHEN DERBY,
Bankruptcy Judge,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Robert R. Merhige, Jr., Senior District Judge,
sitting by designation.
(CA-95-2788-PJM)
Argued: March 5, 1998
Decided: April 22, 1998
Before MURNAGHAN, Circuit Judge, KEELEY,
United States District Judge for the
Northern District of West Virginia, sitting by designation,
and MOON, United States District Judge for the
Western District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Joel Paul Bennett, LAW OFFICES OF JOEL P. BEN-
NETT, P.C., Washington, D.C., for Appellant. Kaye A. Allison,
Assistant United States Attorney, Baltimore, Maryland, for Appellees.
ON BRIEF: Lynne A. Battaglia, United States Attorney, Baltimore,
Maryland, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
A former Bankruptcy Clerk, Michael Kostishak, brought suit
against Bankruptcy Judges Mannes, Schneider and Derby for various
claims challenging his forced resignation. Kostishak pursued these
claims through the administrative process of the Model Equal
Employment Opportunity Plan adopted for the District of Maryland.
His claims were denied by then-Chief Judge Black, and his appeal to
the Judicial Council of the Fourth Circuit was also denied. Kostishak
then brought this suit in district court, where it was dismissed on sum-
mary judgment. Kostishak has appealed the dismissal to us. Because
we believe that an adequate alternative remedy existed for the vindi-
cation of Kostishak's constitutional rights, to the extent that he has
alleged a violation of those rights, we affirm the grant of summary
judgment.
I.
After two years of borderline performance reviews, Bankruptcy
Judge Mannes asked Michael Kostishak, the Clerk of the United
States Bankruptcy Court for the District of Maryland, to tender his
resignation. Kostishak resisted, and Judge Mannes thereafter con-
tacted the other Bankruptcy Judges, who all signed a letter terminat-
ing Kostishak.
Kostishak claimed that his termination was not due to poor work
performance, but rather was discrimination. He alleged that the firing
2
was done in retaliation against him because he intended to serve as
a witness for another Bankruptcy Court employee who claimed racial
discrimination by Judge Mannes. Kostishak also claimed that the fir-
ing was discrimination based upon his age (60) and disability (hyper-
tension).
Because Title VII of the Civil Rights Act of 1964, the Age Dis-
crimination in Employment Act of 1967 and the Americans With Dis-
abilities Act of 1990 do not apply to judicial branch employees,
Kostishak did not sue for the alleged discrimination. Instead he filed
administrative claims pursuant to the court's Equal Employment
Opportunity (EEO) Plan. The EEO coordinator, Joseph Haas,
reviewed Kostishak's complaint and the Judges' response and found
Kostishak's claims to be meritless.
Kostishak requested review of this determination by Chief Judge
Black of the District of Maryland. Chief Judge Black reviewed the
claims based on the filings, without interviewing Kostishak or con-
ducting a hearing. Chief Judge Black agreed with Haas that the claim
was meritless and wrote a letter to Kostishak in which he explained
his findings. Kostishak appealed to the Judicial Council for the Fourth
Circuit, who denied his appeal in a two-sentence letter.
Kostishak then brought this complaint in federal district court,
alleging a Bivens claim for discrimination, deprivation of property
and liberty without due process of law, and violation of First Amend-
ment rights. The district court dismissed some of the claims and
granted summary judgment as to the others. Kostishak brings this
appeal.1
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1 Kostishak does little to advance his appeal through his brief. In his
"argument," the entire body of which totals only five pages, he merely
sets forth at length the standards for granting summary judgment and
then conclusorily asserts that the standards were not met. He does not
explain what genuine issues of material fact he believes he has demon-
strated; in fact, he never even states what his claims are, much less
makes any actual arguments about them.
Kostishak asserts in his brief that he was pro se below and thus we
should be more forgiving than we normally would be before dismissing
3
II.
A.
The district court correctly granted summary judgment on Kost-
ishak's discrimination claims. Kostishak asserts that the Bankruptcy
Judges forced him to resign in retaliation for his participation as a wit-
ness to another employee's claim for racial discrimination, or alterna-
tively as discrimination against him because of his age (he was 60 at
the time).2 Because neither Title VII of the Civil Rights Act of 1964
nor the Age Discrimination in Employment Act of 1967 ("ADEA")
apply to employees of the federal judiciary, Kostishak brings his
claims directly under the Constitution, as a Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
action for deprivation of Fifth Amendment rights. We will not fashion
a Bivens remedy, however, if Congress has explicitly provided that an
equally effective statutory remedy is exclusive, or if there are other
"special factors counselling hesitation." United States v. Stanley, 483
U.S. 669, 678 (1987).
In Davis v. Passman, 442 U.S. 228 (1979), the Supreme Court
"held that the Due Process Clause of the Fifth Amendment gave [the
plaintiff] a federal constitutional right to be free from official discrim-
ination and that she had alleged a federal cause of action," Bush v.
Lucas, 462 U.S. 367, 376-77 (1983) (citing Davis). However, "[i]n
reaching the conclusion that an award of damages would be an appro-
priate remedy, [the Court] emphasized the fact that no other alterna-
tive form of judicial relief was available." Id. at 377. On the other
_________________________________________________________________
his case. The assertion is simply not true: Kostishak was not pro se
before the district court, but rather was represented by the same attorney
who represents him now on appeal. See J.A. at 12 (complaint); J.A. at
236 (plaintiff's opposition to defendant's motion to dismiss or, in the
alternative, for summary judgment). Nor was Mr. Kostishak pro se dur-
ing the administrative proceeding; in fact he explained on his original
complaint of discrimination that he was represented by another attorney.
J.A. at 36.
2 Apparently, Kostishak has abandoned the disability-discrimination
claim he earlier pursued.
4
hand, where Congress has established an adequate alternative reme-
dial scheme for the vindication of constitutional rights, the Court has
refused to extend a Bivens remedy, even if the Congressional scheme
is not as effective as a Bivens remedy would be. See id. at 388-90;
Schweiker v. Chilicky, 487 U.S. 412, 425-27 (1988). The establish-
ment of such a scheme is a "special factor" that counsels hesitation
before we imply a judicially created remedy. See McCarthy v.
Madigan, 503 U.S. 140, 151-52 (1992).
Noting that Congress had specifically decided not to apply Title
VII to the federal judiciary,3see Congressional Accountability Act of
1995, Pub. L. No. 104-1 (1995), 2 U.S.C. §§ 1301, 1434, the district
court refused to imply a Bivens remedy because Kostishak had an
adequate alternative remedy: Kostishak could file an administrative
complaint pursuant to the Equal Employment Opportunity Plan pro-
mulgated by the Judicial Council for the Fourth Circuit and, if his
administrative complaint were successful, he could pursue a claim for
damages under the Back Pay Act, 5 U.S.C. § 5596. The district court
found that the EEO plan and Back Pay Act provided an adequate, if
not equally as effective, remedy for Kostishak's alleged deprivation
of rights. Compare Garcia v. Williams, 704 F. Supp. 984, 988-92
(N.D. Cal. 1988) (before revision of the Back Pay Act, holding that
a judicial branch employee had no effective remedy for discrimina-
tion and there were no other special factors counselling hesitation,
and therefore allowing a Bivens claim for discrimination), with Fultz
v. Waldron, 1994 WL 146361, *4-*7 No. 93-891 (D.N.J. April 19,
1994) (refusing to recognize a Bivens claim for discrimination, and
distinguishing Garcia, after the Back Pay Act had been revised to
allow damages for violations found under the Equal Employment
Opportunity plan).
Kostishak objects that the procedures provided by the Equal
Employment Opportunity Plan and the Back Pay Act are not adequate
to protect his rights because they do not provide"the opportunity for
a due process hearing before an independent adjudicator." Brief of
Appellant at 8. He argues that "a paper appeal to the supervisors of
the discriminating officials without any right to discovery, was woe-
fully inadequate." Id._________________________________________________________________
3 The same is true of the ADEA.
5
Although affording a hearing would have been preferable, we do
not believe that one is necessary in every case for the EEO procedure
to be constitutionally adequate. It is important to note that the EEO
plan does provide for a hearing if "the Chief Judge or a designee finds
that a hearing is necessary." At such a hearing, each party has the
right to representation, to present evidence and to cross-examine
adverse witnesses. But where the evidence is uncontested or clear
enough that the Chief Judge or his designee can fairly review the mer-
its of the complaint without such a hearing, the Constitution does not
demand that one be held.
Even in Title VII or ADEA cases, if the facts are uncontested, a
judge may find for a claimant or dismiss a claim as a matter of law
on summary judgment. Here, Judge Black found that
The only evidence of . . . retaliation [for Kostishak's role as
a witness to the racial discrimination charge] is the proxim-
ity of these events [Kostishak's firing] to the filing of the
[racial discrimination] complaint. Any inference to be drawn
therefrom is far outweighed by a review of the entire record
reflecting [Kostishak's] deficiencies in the operation of the
office . . . .
And Kostishak had "presented no evidence whatsoever to indicate
that [his] age played any part in the actions by the Court other than
the fact that [his] successor is younger than[he.]"4 These findings by
Chief Judge Black are equivalent to a finding by a judge in a Title VII
or ADEA case that Kostishak had not offered sufficient evidence to
make out a prima facie case of retaliation or discrimination, and that
he could not offer any evidence to rebut his employer's proffered
non-discriminatory justification. In such a situation Kostishak would
not be entitled to a trial-type hearing, but would lose on summary
judgment. We find it inappropriate to hold that the EEO plan's dis-
missal of these claims without a hearing was constitutionally inade-
quate in the circumstances presented.
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4 Additionally, "[h]andicap discrimination could not have been the
basis for the adverse personnel actions taken against [him] since [his]
alleged handicap was unknown to the Court at the time of the adverse
actions . . . ."
6
B.
Kostishak also alleges that his due process rights were violated
because he was deprived of his job without being afforded a hearing.
However, the "procedural safeguards encompassed by the due process
clause extend to appellant's continued employment only if [he] had
a property interest in that employment." Pittman v. Wilson County,
839 F.2d 225, 226-27 (4th Cir. 1988). Kostishak's claim in his com-
plaint that he "has a property right in his continued employment with
the Bankruptcy Court, pursuant to the Fifth Amendment to the United
States Constitution," is incorrect.
Kostishak has not alleged that he had any employment contract or
any promise of tenure. Apparently he is an employee at will. Mere
subjective expectation of continued employment, see Perry v.
Sindermann, 408 U.S. 593, 603 (1972), or longevity of employment,
see McNeill v. Butz, 480 F.2d 314, 320 (4th Cir. 1973), do not support
a cognizable property interest under the Constitution. "A person's
interest in a benefit is a ``property' interest for due process purposes
if there are such rules or mutually explicit understandings that support
his claim of entitlement to the benefit and that he may invoke at a
hearing." Perry, 408 U.S. at 601. Because Kostishak has alleged no
such rules or mutually explicit understandings, this claim was prop-
erly dismissed.
C.
Kostishak also alleges a deprivation of liberty without due process.
In his complaint, Kostishak asserts that he "has a liberty right pursu-
ant to the Fifth Amendment to the United States Constitution to hold
employment and to seek employment free of the stigma of false and
defamatory information being disseminated about him." The Supreme
Court has recognized that:
liberty might be implicated if the state made charges against
the employee which "might seriously damage his standing
and associations in his community," as, for example, accusa-
tions of dishonesty, disloyalty, or immorality. Thus, "lib-
erty" is implicated and procedural due process is required
when government action threatens an employee's good
7
name, reputation, honor, or integrity. Secondly, the Court
explained that government dismissal may abridge liberty if
it imposes a "stigma or other disability" which forecloses a
discharged employee's freedom to take advantage of other
employment opportunities.
McNeill, 480 F.2d at 319. Kostishak asserts in his complaint that he
has been damaged by the "stigmatization of his name and reputation,"
and that he has suffered "emotional distress, humiliation and personal
indignity resulting from [his] loss of employment and the loss of his
good name." These assertions are too vague and general to support a
claim.
The Fourth Circuit addressed a similar situation in Ogilbee v. West-
ern District Guidance Center, Inc., 658 F.2d 257 (4th Cir. 1981).
There we observed that "[b]y means of his allegation that ``[p]laintiff's
termination has damaged the plaintiff's reputation and good name,'
[the plaintiff]'s complaint might broadly be construed to claim depri-
vation of a liberty interest." Id. at 258 (second alteration in original).
However, the plaintiff in Ogilbee had not alleged any specific act of
defamation nor any public disclosure of the reasons for the adverse
employment action taken against him. The Fourth Circuit therefore
concluded that:
[plaintiff]'s complaint suggests only that, as a result of the
mere act of his termination, some unspecified damage to his
reputation has occurred. This suggestion, without more, is
not sufficient . . . to allege deprivation of a liberty interest.
Id. at 259.
The same is true here. Kostishak did not allege that his employer
made public the reasons for, nor even the fact of, his termination. See
Wooten v. Clifton Forge School Bd., 655 F.2d 552, 555 (4th Cir.
1981) (explaining that a plaintiff must allege public disclosure of the
reasons for his discharge to support a claim that such discharge
deprived him of a liberty interest in his reputation). Even if he had
alleged that the reasons for his termination were made public, pub-
lished comments must include charges of serious character defects to
be the basis for a claim of infringement of a liberty interest. See
8
Robertson v. Rogers, 679 F.2d 1090, 1092 (4th Cir. 1982). Kostishak
did not meet this burden, and thus the claim was properly dismissed.
D.
Finally, summary judgment was appropriate against Kostishak
regarding his allegation of infringement of his First Amendment right
to free speech. To demonstrate termination in violation of the First
Amendment, a public employee must comply with the two-pronged
test set forth in Hanton v. Gilbert, 36 F.3d 4, 6-7 (4th Cir. 1994).
First, he must show that his speech related to matters of public inter-
est and that his interest in expression outweighed his employer's
interest in the efficient operation of the workplace. Second, he must
demonstrate that his protected speech was a substantial factor in his
employer's decision to terminate him. Although he may be able to
pass the first prong, Kostishak cannot satisfy the second prong. And
even if he could, the bankruptcy judges would be qualifiedly immune
from suit for any First Amendment violation.
The United States complains that Kostishak cannot meet the first
prong of the Hanton test because his speech was not on a matter of
public concern. The government argues that "a public employee's
expression of grievances concerning his own employment is not a
matter of public concern," Brief of Appellee at 21 (quoting Huang v.
Board of Governors of the Univ. of North Carolina , 902 F.2d 1134,
1140 (4th Cir. 1990)). The government further argues that because
Kostishak was the supervisor of the employee who was allegedly dis-
criminated against, Kostishak's speech was merely a"mandated
responsibility" of his job. Therefore, we are urged not to "constitu-
tionalize the employee grievance" by holding that the speech is on a
matter of public concern. Brief of Appellee at 20.
However, the speech for which Kostishak alleges he is being retali-
ated against is much more than a grievance about his own employ-
ment: Kostishak has alleged in his affidavit that he not only discussed
the discrimination with his subordinate, but that he"will act as a wit-
ness on [her] behalf in that matter." Taking the facts presented in the
light most favorable to the non-moving party, Kostishak has alleged
that he was terminated in retaliation for his intent to act as a witness
9
in administrative or judicial proceedings. Such speech clearly relates
to matters of public concern.
The second half of the first prong of the Hanton test requires us to
balance the employee's interest in the speech against the employer's
interest in controlling his workplace. Only if Kostishak's interest out-
weighs the government's will the First Amendment protect his
speech. Kostishak's brief does not provide any context for his speech
-- for example, it does not explain what exactly it was that he wit-
nessed to be discrimination, nor under what circumstances he would
have to serve as a witness on behalf of his subordinate. On this
skimpy record, and without any argument on Kostishak's behalf, we
must make the "subtle, difficult to apply, and not yet well-defined"
balancing called for by this part of the Hanton test. DiMeglio v.
Haines, 45 F.3d 790, 806 (4th Cir. 1995).
Additionally, we must keep in mind that, because this "particular-
ized balancing" is so difficult even in a case where the record is fully
developed, a public employer will usually deserve qualified immunity
in such cases. Id. "[O]nly infrequently will it be ``clearly established'
that a public employee's speech on a matter of public concern is con-
stitutionally protected." Id. Even if we could make the required bal-
ancing in this case, we would find that Judges Mannes, Schneider and
Derby were qualifiedly immune for their actions.
The second prong of the Hanton test requires a showing that the
employee's "protected speech was a substantial factor in [his]
employer's termination decision." 36 F.3d at 7. To avoid summary
judgment, Kostishak must have demonstrated by admissible evidence
that there was a genuine issue of material fact in this regard. Kost-
ishak did not meet this burden.
The government asserts, and the record demonstrates, that Kost-
ishak's poor management of the Bankruptcy Clerk's Office had been
a source of contention between himself and the Bankruptcy Judges for
the two years leading up to his termination. Kostishak may not merely
rely on the assertions in his complaint that he was fired in retaliation
for his speech, but he must offer some admissible evidence demon-
strating that there is a genuine issue for trial. He offered nothing of
the kind. The only affidavit in the record relevant to this question is
10
Kostishak's 5-sentence affidavit, J.A. at 265-66, in which he explains
that he will act as a witness in the matter of the racial discrimination
of his subordinate. There is no affidavit or other admissible evidence
in the record suggesting that Kostishak's protected speech played any
role, much less a "substantial" one, in the decision to fire him. Sum-
mary judgment was therefore appropriate because Kostishak did not
carry his burden of demonstrating a genuine issue for trial in this
regard.
III.
The district court held that there was an adequate remedial scheme
and thus no Bivens claim was appropriate for Kostishak's discrimina-
tion claims. The holding did not dispose of Kostishak's other Due
Process and First Amendment causes of action, but because he failed
to introduce any evidence demonstrating a genuine issue for trial
regarding these claims, they were properly dismissed. The judgment
of the district court is, therefore,
AFFIRMED.
11