Opinion
No. 71-487
Decided January 23, 1973. Rehearing denied February 14, 1973. Certiorari granted June 25, 1973.
Discharged civil service employee brought action challenging his discharge. District court affirmed the order of dismissal entered by civil service commission, and employee appealed.
Affirmed
1. CIVIL SERVICE — Law Suit — Against Supervisor — Certain Circumstances — Refusal — Dismiss Suit — Grounds Exist — Discharge of Employee. Where evidence discloses that the filing and maintaining of a law suit by a civil service employee against his supervisor and employer are surrounded by circumstances which demonstrate conduct on the part of the employee which would justify a dismissal irrespective of the filing and maintenance of the law suit, and such conduct is further emphasized by the employee's refusal to dismiss the suit, grounds then exist for the discharge of the employee.
Appeal from the District Court of the City and County of Denver, Honorable Mitchel B. Johns, Judge.
Blewitt, Bisbee and Geil, John H. Bisbee, for plaintiff-appellant.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Robert L. Hoecker, Assistant, for defendant-appellee Civil Service Commission.
Division II.
This is an appeal of the district court's affirmance of an order of dismissal entered by defendant-appellee, Civil Service Commission of the State of Colorado, against Troy W. Paris, plaintiff-appellant, discharging Paris from Civil Service employment. We affirm.
Paris was an employee of the Division of the State, Compensation Insurance Fund. On July 2, 1969, Paris' immediate supervisor, Beatrice Simons, delivered to him a letter outlining certain deficiencies in the performance of his duties. Paris took exception to the accusations set forth in the letter. In a subsequent conference with the personnel director of the Fund, Paris was advised of certain grievance procedures which he admittedly did not pursue. In August 1969 Paris filed a libel action in district court against Mrs. Simons individually and as his supervisor. Other officials of the Fund who were originally named defendants were subsequently dismissed from the action, and Paris then joined the Fund as a defendant.
In January 1970 the manager and the personnel director of the Fund prepared a performance report which gave Paris an overall rating of "qualified" satisfactory. The qualifications were based on an unsatisfactory rating as to compliance with instruction, cooperation, and loyalty to the agency. Attached to this report was a detailed description of the qualifications which recited, inter alia, that Paris had failed to comply with established grievance procedures following receipt of the July letter of reprimand and that he had instituted a libel suit against his supervisor and employer. The statement further recited that Paris had made it known that his main purpose in instituting and maintaining the libel suit was "to get" his supervisor regardless of the cost to him or to the Fund. The attachment to the performance report specified that this behavior while Paris was still an employee of the Fund was insubordinate, disloyal, constituted conduct unbecoming to a state employee, was inconsistent with the relationship of employer and employee, and was responsible for a demoralizing effect upon the Fund, its employees, and the work performance thereof. The attachment concluded with the following notice:
"Failure of Mr. Paris to correct said attitude toward his supervisor on or before Mr. Paris' rating date, March 1, 1970, will justify disciplinary action.
"Failure to dismiss said Court action on or before Mr. Paris' rating date, March 1, 1970, can and may be considered a ground for dismissal of Mr. Paris."
Paris did not meet the above requirements, and on March 3, 1970, he received a notice of dismissal. As grounds for the dismissal the notice recited Paris' failure to dismiss the libel suit and the continued detrimental effects of the suit reflected in his behavior as set forth in the performance report. Paris protested his dismissal to the Civil Service Commission.
Subsequent to a full hearing, the Commission ruled that although Paris had the right to file the civil action in question, "the facts and circumstances out of which such suit arises may give rise to grounds for the dismissal of the Respondent if such facts and circumstances constitute grounds for dismissal under he rules and regulations of the State Civil Service Commission." The Commission concluded from the evidence that Paris had been guilty of insubordination, disloyalty, and acts unbecoming to a state employee and that he did not carry on his work in an acceptable manner. The district court affirmed.
Paris contends that he was charged by the Fund with insubordination and disloyalty because of the fact that he instituted and maintained the law suit. Citing Colo. Const. Art. II, Sec. 6, he argues that to the extent the findings were based solely on the institution and maintenance of the law suit they were in error inasmuch as such findings are tantamount to a denial of his constitutional right to seek redress in a court of law. Paris further contends that if the findings were independent of his filing of the law suit, error was committed in his being dismissed because the Commission and court went beyond the charges filed. In any event, he argues that assuming such findings were appropriate, there was insufficient evidence to support them.
It is not questioned that Paris has a constitutional right to institute and maintain the libel suit. The issue is whether he can sue his supervisor and his employer under the facts of this case and then be discharged from his civil service position solely on the basis of circumstances created by the initiation of the suit.
Colo. Const. Art. XII, Sec. 13, then in effect, provided in part:
"Persons in the classified service shall hold their respective positions during efficient service and shall be graded and compensated according to standards of efficient service which shall be the same for all persons having like duties. They shall be removed . . . for failure to comply with such standards, or for the good of the service . . . .
Laws shall be made to enforce the provisions of this section. . . ." (Emphasis added.)
Pursuant to this constitutional provision, the state legislature adopted the State Civil Service Act, C.R.S. 1963, 26-5-1 et seq., which sets forth standards of performance and conduct. The tenure of an employee is conditional upon good behavior and satisfactory performance of his duties. C.R.S. 1963, 26-5-21. Rules and regulations adopted by the Commission in January 1968 provide for correction and disciplinary action, inter alia, when an employee fails to maintain satisfactory and harmonious working relationships with other employees, or is engaged in conduct unbecoming to a state employee, or when it is determined to be for the good of the service based upon sufficient and competent evidence. Civil Service Rules and Regulations Art. XI, ¶ C(2) (1968). The regulations also provide that an employee may be discharged at any time for cause. Civil Service Rules and Regulations Art. XIII, ¶ B(3) (1968).
Although the filing of a law suit against the employer is not, in and of itself, a sufficient ground for the dismissal of a civil service employee, the charges filed against Paris were not limited solely to the fact of the filing of the law suit. The charges stated that the institution and maintenance of the law suit were considered to be acts of insubordination, disloyalty, conduct unbecoming to a state employee, and contrary to the standard of performance and conduct prescribed by the Civil Service Act, rules and regulations. The charge further stated that this suit by Paris had a demoralizing effect upon the Fund and employees, affected work performance, and was inconsistent and incompatible with the relationship of employer and employee.
[1] The record discloses that Paris admitted that in addition to seeking money damages in the libel suit he questioned the ability of his supervisor, was hostile toward her, and desired to obtain a judgment against her. There was also evidence of hostility between Paris and the assistant supervisor and a deterioration of their personal relationship. Paris further conceded that there had been a deterioration in his relationship with the personnel director and that he was not concerned about what effect his action might have on the Fund. There was also evidence that Paris' conduct produced a laxness on the part of some of the other employees and a laxness of administrative control over the employees for fear that other law suits might be initiated if regulations were strictly enforced. The findings and conclusions of the Commission were within the scope of the charges, and such charges were supported by the evidence. Thus the dismissal of Paris was justified on the basis of his conduct and the results thereof, whether such conduct was evidenced primarily by the filing of a law suit or by any other overt act on his part. Considering the constitutional provision, statutes, and rules and regulations relative to civil service employees, we hold that where the evidence discloses that the filing and maintaining of a law suit by a civil service employee against his supervisor and employer are surrounded by circumstances which demonstrate conduct on the part of the employee which would justify a dismissal irrespective of the filing and maintenance of a law suit, and such conduct is further emphasized by the employee's refusal to dismiss the suit, grounds then exist for the discharge of the employee.
Judgment affirmed.
CHIEF JUDGE SILVERSTEIN and JUDGE SMITH concur.