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Grausam v. Murphey

decided: September 7, 1971.


Forman, Seitz and Aldisert, Circuit Judges.

Author: Forman


FORMAN, Circuit Judge.

By a verified complaint filed in the District Court for the Eastern District of Pennsylvania appellant, Harold W. Grausam, Jr., brought this suit under 42 U.S.C. § 1983, 28 U.S.C. § 1343, and the First and Fourteenth Amendments to the United States Constitution, alleging that he had been discharged from his position as Director of the Social Services Department at the Henry R. Landis State Hospital, Philadelphia, Pennsylvania,*fn1 (hereinafter, the Hospital) in violation of the First and Fourteenth Amendments. He named as defendants Henry S. Murphey, M.D., Medical Director of the Hospital; Harold E. Coder, M.D., Director, Division of Chronic Respiratory Diseases of the Pennsylvania Department of Health; John E. James, Director of Personnel of the Pennsylvania Department of Health; and Thomas W. Georges, M.D., Acting Secretary of Health of the Commonwealth of Pennsylvania.

Attached to the complaint was a copy of a leaflet entitled "Fight the Cut-Backs -- Win Higher Wages" which appellant had distributed to Hospital employees and others in an area close to the Hospital grounds after working hours on July 10, 1969; a Performance Evaluation Report, executed on July 16, 1969, which rated appellant's overall work performance as "unsatisfactory";*fn2 and a letter of August 28, 1969, which informed appellant that his employment with the Hospital would terminate at the close of business on September 9, 1969 because of "the unsatisfactory nature of your work performance."

The complaint alleged that appellant's unsatisfactory rating and dismissal had been substantially motivated by the distribution of the leaflet, and requested (1) a declaration that his discharge was effected in violation of his First and Fourteenth Amendment rights; (2) an injunction to prevent any future Hospital action in violation of his rights; (3) an order that the Performance Evaluation Report be expunged from all official records of the Commonwealth of Pennsylvania; and (4) damages, counsel fees and costs and any other necessary or appropriate relief.*fn3

At the same time appellant filed a Motion for Preliminary Injunction, incorporating the provisions and prayers for relief recited in the verified complaint, and a hearing thereon was held on September 18, 1969. At the hearing appellant rested his case on the complaint and papers attached thereto, and expressed his willingness to have both preliminary and permanent relief determined then, but this course was rejected by the appellees. The District Judge then orally denied the Motion for Preliminary Injunction and held the case over for a date to be fixed for final hearing, offering to file written findings of fact and conclusions of law.

Appellant meanwhile took a timely appeal to the Pennsylvania Civil Service Commission*fn4 which held a public hearing on October 30, 1969.*fn5 Thereafter, on December 12, 1969, the parties stipulated that the transcript of the State Civil Service Commission hearing be incorporated into the record then before the District Court, and that the District Judge rule on all of the relief prayed for in the complaint as if on final hearing.

On December 19, 1969, the District Judge denied appellant's motion for a preliminary and permanent injunction, concluding that " (the) plaintiff has failed to sustain his burden of showing that his exercise of his rights under the First and Fourteenth Amendments was a substantial factor in inducing his dismissal."

The record indicates that on December 10, 1968, appellant was appointed Director of the Social Services Department of the Hospital. The appointment, made on an emergency basis under § 741.606*fn6 of the Civil Service Act, was to expire early in March. On March 6, 1969, appellant and Dr. Harold E. Coder met to consider whether appellant should be retained in his position in a probationary status. The next day, Dr. Coder sent a letter to Mr. James expressing dissatisfaction with appellant's work performance, but recommending his probationary appointment. The letter stated in part:

"I have discussed Mr. Grausam's performance with him yesterday and indicated to him certain deficiencies, such as irregular duty attendance and difficulty in keeping pre-arranged appointments. I also emphasized the importance of the Social Service Department maintaining good communications and amicable relations with other departments in the hospital."

Dr. Coder further wrote that " (if), during the next three months, Mr. Grausam's performance does not improve materially I will not hesitate to recommend his termination." Mr. James thereafter notified appellant, by letter of March 12, of his appointment to probationary status, adding the admonishment that "The record indicates that Dr. Coder * * * on March 6, 1969, discussed deficiencies in your performance with the positive intent to alert you to the need to maintain good communications with the other departments in the hospital and to maintain regular attendance."

On July 10, 1969, appellant distributed a leaflet, mentioned above, which, in essence, urged hospital personnel to organize against proposed state budget cuts which allegedly would curtail essential hospital services to Philadelphians, and severely affect the job security and wages of hospital and other health care workers. The next day appellant was called in to Dr. Coder's office and questioned about the leaflet and its advocacy of a "sick-in" by Hospital employees.*fn7 On July 16, Dr. Henry S. Murphey sent to appellant the Performance Evaluation Report;*fn8 the letter of August 28 dismissing appellant followed. Appellant shortly thereafter filed this suit.

Appellant challenges the finding of the District Judge that he did not sustain his burden of proof to show that his removal was substantially motivated by the distribution of the leaflets. He asserts further that in reaching this determination, the District Judge relied on reasons not presented by the appellees, thus violating the rule that a reviewing court:

"must judge the propriety of (administrative) action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis."*fn9

Where, as in the present case, a violation of protected First Amendment freedoms has been alleged, a comprehensive review of the entire record is important to assure that no intrusion upon them has occurred. At the same time, the findings of fact of the District Judge are entitled to substantial weight, and, in accordance with Rule 52(a) of the ...

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