Young v. Booth Brief for Appellees

    BRIEF FOR APPELLEES
IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA

No. 83-2121

DANIEL A. YOUNG,

Appellant
v.

JAMES J. BOOTH, et al 
Appellees

On Appeal From The United States District Court 
For The District of Columbia

INEZ SMITH REID 
Corporation Counsel, D.C.
JOHN H. SUDA 
Principal Deputy Corporation 

Counsel, D.C.
CHARLES L. REISCHEL
Deputy Corporation Counsel, D.C.
Appellate Division
MICHELE GIULIANI
Assistant Corporation Counsel, D.C.

Attorneys for the 
Appellees

Room 308, District Building 
14th & Pennsylvania Ave., N.W. 
Washington, D.C. 20004 
Telephone: 727-6252

*



I N D E X  
SUBJECT INDEX

Page
Issue Presented ................................ 1
Statement of the C a s e ............................ 1
Statement of Facts .............................. 2
Argument

In terminating appellant, his employer 
the District of Columbia court 
systems afforded him due process 
of law............................. 15

Conclusion...................................... 22
CASES CITED

*Baughman v. Green (1956)
97 U.S.App.D.C. 150
229 F. 2d 3 3 ................................ 19

Cafeteria Workers v. McElroy (1961)
367 U.S. 886 ................................ 20

Carey v. Piphus (1978)
435 U.S. 247 ................................  19

Connelly v. Nitze (1968)
139 U.S.App.D.C. 351
401 F. 2d 4 1 6 ................................  19

Doe v. Board of Professional Responsibility 
(D.C. Cir. 1983)

717 F. 2d 1424   15
Doe v. Hampton (1977)

5 66 F . 2d 265 ................................ 20
Fuentes v. Shevin (1972)

407 U.S. 6 7 ................................  19
Hess & Clark v. Food and Drug Administration (19 

161 U.S.App.D.C. 395 
495 F.2d 975 . . . . 19



*Hewitt v. Helms (1983)
U.S.

103 S.Ct. 864   16
Mullane v. Central Hanover Bank & Trust Co. (1950)

339 U.S. 306.................................. 19
Pollock v. Baxter Manor Nursing Home (8th Cir. 1983)

706 F. 2d 236 ................................  20
United States v. Caceres, (1978),

440 U.S. 7 4 1 ................................ 16
Zannino v. Arnold (3d Cir. 1976)

531 F. 2d 687 ................................  20
UNITED STATES CODE CITED

Title 42, Section 2000e et seq. (1976 & Supp. V 1981)
(Title V I I ) ................................ 2

DISTRICT OF COLUMBIA CODE CITED, 1981
Section 11-707(b) ................................  13

*Cases chiefly relied upon are marked by an asterisk.



IN THE UNITED STATES COURT OF APPEALS 
For The District of Columbia

No. 83-2121

DANIEL A. YOUNG 
Appellant

v .
JAMES J. BOOTH, et al., 

Appellees

On Appeal From the United States District Court 
For The District of Columbia

ISSUE PRESENTED
Whether in terminating appellant his employer, the District 

of Columbia court system, afforded him due process of law.
★ ★ ★ ★

This case has not previously been before this court. 
Attorneys for appellee are not aware of any pending appeals 
related to the instant appeal.

STATEMENT OF THE CASE
This is an appeal from an order of the trial court (Judge 

June Green) granting defendants'/appellees1 motion for partial 
summary judgment on the question of the constitutional adequacy



2

of the pre-termination notice afforded plaintiff/appellant Daniel 
A. Young, a nonprobationary employee who served as the Assistant 
Assignment Commissioner for the Family Division of the District 
of Columbia Superior Court. The trial court denied appellant's 
cross-motion for partial summary judgment and his motion to 
strike several documents appended to appellees' motion for 
partial summary judgment. (Memorandum Opinion, filed June 8, 
1981, Doc. 41). Appellant's remaining count of race and sex 
discrimination brought under 42 U.S.C. 2000e et seq. (1976 &
Supp. V 1981) (Title VII) was dismissed pursuant to a stipulation 
filed on September 8, 1983. The trial court filed an order 
entering judgment on behalf of appellees James J. Booth (Family 
Assignment Commissioner), John M. Bischoff (Director, Family 
Division), and Lawrence Polansky (Executive Officer, Superior 
Court) on September 29, 1983. Appellant noted his appeal on 
October 24, 1983.

STATEMENT OF FACTS
Daniel Young was a nonprobationary employee of the District 

of Columbia Superior Court from 1965 until his termination date 
of October 7, 1976. Between 1965 and 1971 he served in a variety 
of capacities which included clerk typist, bailiff, disposition 
clerk, and courtroom clerk. (Admin. Op. of J. Kelly, Doc. 28,
Ex. 18 at 1; Testimony of D. Young, Doc. 25, Admin. Tr. 3/28/77 
at 94-96). From 1971 until October 7, 1976 he was the Assistant 
Assignment Commissioner for the Family Division, and, in this 
capacity, he was responsible for arranging the daily court



3
£

calendars and assigning cases to judges on a daily basis as those 
judges would become available. (Doc. 28, Ex. 18 at 2; Doc. 25, 
Testimony of Booth, Admin. Tr. 2/28/77 at 28).

In January 1975, Judges Atkinson and Ryan met with Mr. 
Bischoff to complain about appellant’s performance with respect 
to certifying cases to them. (Doc. 25, Testimony of J. Booth, 
Admin. Tr. 2/28/77 at 34; Testimony of J. Bischoff, Admin. Tr. 
3/21/77 at 29-31). Mr. Booth, appellant's immediate supervisor, 
met with appellant to discuss these complaints, and appellant 
became hostile and raised his voice to Mr. Booth. (Doc. 25, 
Testimony of J. Booth, Admin. Tr. 2/28/77 at 34). Mr. Booth also 
discussed with appellant his apparent preoccupation with tennis 
activities during work hours (8:30-5:00 p.m.). This discussion 
took place at approximately 4:30 p.m. By 4:53 p.m. appellant, 
whose desk was near Mr. Booth's, was on the telephone discussing 
tennis. (Doc. 25, Testimony of J. Booth, Admin. Tr. 3/4/77 at 
66-71 ).

By a memorandum dated January 13, 1976, John Bischoff,
Director of the Family Division, informed appellant that, pending 
further review, he would not receive his annual salary step 
increase on the scheduled date of February 1, 1976 because there 
had been "no positive change in his work performance over the 
last year." (Doc. 28, Ex. 1). Appellant later appealed Mr. 
Bischoff's final decision to deny him his step increase, and 
Joseph Burton, Clerk of Court, sustained the denial. (Doc. 28,
Ex. 4E & 6 ) .



4

Appellant's immediate supervisor, James Booth, by a 
memorandum dated March 29, 1976, informed appellant that an
unsatisfactory performance rating would issue in ninety days 
unless appellant substantially improved his performance in 
several enumerated areas, which included professional judgment, 
effectiveness in dealing with others, attention to detail when 
scheduling cases, and efforts to train subordinates and promote a 
high working morale. (Doc. 28, Ex. 3; Doc. 34, Ex. 7). The 
memorandum also noted that "[w]hile there is an appearance of 
industry, minimal observation generally discloses that most of it 
is related to personal business and outside activities." Id. at 
2 .

After receiving the March 29 warning memorandum, appellant 
requested and received permission to circulate a survey to assess 
office morale and the need for further job training and other 
management improvements. (Doc. 34, Ex. 8A & 8B). The survey 
forms were circulated. (Doc. 34, Ex. 9). Appellant, however, 
did not share the survey results with his superior. Instead, he 
simply summarized them in a general memorandum dated June 18,
1976 but apparently not given to Mr. Booth until July 1. (Doc.
34, Ex. 11, Ex. 19A at 19). In a June 25, 1976 memorandum, Mr. 
Booth gave the following instruction to appellant: "Please
submit to me the information obtained from your survey so that we 
may discuss and evaluate the results." (Doc. 34, Ex. 12). 
Appellant failed to turn over the survey forms that had been 
returned to him, and Mr. Booth made no further requests for the



5

survey forms. (Doc. 25, Admin. Tr. 3/4/77 at 34-43). Ms. Sandra 
Grace, a secretary in the Family Division, did provide Mr. Booth 
with a copy of the original survey she had returned to appellant. 
(Doc. 34, Ex. 10). Ms. Grace's comments were that she found 
appellant to be "critical, uncooperative and even deceitful"; 
that appellant gave "little or no guidance"; that appellant seems 
to have "bad rapport" with co-workers, attorneys, and the public; 
and that appellant ignored her request to get together with her 
to compare her record of appellant's leave requests with his own 
leave records. (Doc. 34, Ex. 9 at 18). Mr. Booth received no 
survey forms or copies directly from appellant. Appellant's 
"summary" of the survey results did not incorporate any of Ms. 
Grace's observations. He simply noted that "[w]ith the exception 
of one employee, (whom I understand is resigning) there seems to 
be no feeling of animosity within the office." (Doc. 34, Ex.
ID  .

In July 1976, Mr. Booth assigned appellant an unsatisfactory 
performance rating. Mr. Booth noted in a July 9 memorandum that 
appellant's performance had not appreciably improved since the 
warning memorandum issued; that appellant failed to turn in the 
survey forms as directed; and that he continued to pursue 
personal business during working hours. (Doc. 34, Ex. 14).

In August 1976, appellant requested and received permission 
from Mr. Booth to go to the personnel office, which was located 
in another building at 613 G Street, N.W., in order to obtain 
some information. He was seen at that location between 4:15 and 
4:30 p.m. in full tennis attire, and he did not return to work



6

that day. (Doc. 25, Testimony of J. Booth, Admin. Tr. 3/4/77 at 
72-75 and Tr. 3/10/77 at 21? Testimony of J. Brown, Director of 
Personnel, Admin. Tr. 3/25/77 at 153; Testimony of D. Young, 
Admin. Tr. 3/28/77 at 139).

On September 7, 1976, Mr. Biscoff issued to Mr. Young a 
"Notice of Proposed Adverse Action —  Termination of Employment" 
in accordance with the Superior Court Penalty and Adverse Action 
Guidelines (June 1974). (Doc. 28, Guidelines, Ex. 20 at 4; Doc. 
34, Ex. 18) (appended to this brief as Attachment A). In this 
notice Mr. Bischoff stated his intention to terminate appellant 
effective October 7, 1976. (Doc. 28, Ex. 9; Doc. 34, Ex. 15) 
(appended to this brief as Attachment B). The reasons for 
termination were discussed under the two general headings of 
"incompetence" and "insubordination." Under the heading 
"incompetence", Mr. Bischoff noted that appellant "consistently 
displayed attitudes in [his] relationship with the practicing 
bar, the public, the judges, and [his] fellow employees which 
create an animosity which results in resistance, anger and 
confusion." jtd. at 1. Mr. Bischoff also noted that appellant's 
"ability to give an acceptable degree of attention to the details 
of [his] assigned tasks [is] extremely deficient and is evidenced 
by a continuum of errors resulting in burdensome efforts by 
others to correct them." ^d. Under "insubordination," Mr. 
Bischoff noted that appellant consistently displayed "a failure 
to submit to authority" that at times bordered on 
"contemptuousness," and that "[t]his has been particularly 
apparent with regards to [his]



7

duties in assigning cases to judges." Id. at 2. Mr. Bischoff
also noted that appellant's relationship with his immediate
superior, Mr. Booth, has "completely frustrate[d]" Mr. Booth:

Most recently, I refer to his direction to you to 
provide him with certain material generated by your 
survey of employees in the branch which he had 
approved. Even after a direct request, there has still 
been no response other than the expression of your own 
opinions regarding the survey. Moreover, your recent 
attempt to obtain approval for leave based upon an 
illness in your family was challenged and you refused 
to accept the opportunity given to explain the rather 
blatant discrepancy involved, further sustantiating 
[sic] the scornful attitude which you apparently have 
for those in authority. You have been advised from 
time to time that your outside interests have been in 
conflict with your work, however, you have seen fit to 
flaunt these interests before all who would have 
occasion to be near even to the extent of a recent 
display in the court's offices at 613 G Street, N.W.
Your actions in this regard, and many others, are taken 
to mean that you place your personal interest ahead of 
those of the court when in a duty status, and as such 
further identifies your insubordinate attitude.

Id. Mr. Bischoff concluded by advising appellant that "Mr. Booth 
will have pertinent material and documentation concerning this 
action"; that appellant had the right to reply to the notice 
"both personally and in writing" before September 17; and that 
pending a resolution of the adverse personnel action, appellant 
would be placed in a non-duty status with pay. jEd. at 2-3.

Appellant, through his attorney, replied to the pre­
termination notice in writing as he was entitled to do under the 
Superior Court Penalty and Adverse Action Guidelines. (Doc. 34, 
Ex. 18 at 4) (Attachment A hereto). In a letter to Mr.
Bischoff's attorney dated September 9, 1976, appellant 
acknowledged receipt of the termination notice and responded to



8

the allegations relating to his failure to return the survey 
forms and his recent "display" of his tennis attire in the 
personnel office. (Doc. 28, Ex. 10; Doc. 34, Ex.16). In his 
response to the pre-termination notice, appellant argued that, 
because taking the survey was appellant's idea and simply was 
approved by Mr. Booth, appellant's failure to turn over the 
survey forms as directed by Mr. Booth could not constitute 
insubordination. He also argued that, because Mr. Booth gave him 
permission to go to the personnel office to obtain information, 
his failure to remain in business attire while at the personnel 
office during working hours could not constitute insubordination. 
Id. at 2. Although the termination notice specifically stated 
that additional documentation was available for inspection in Mr. 
Booth's office, appellant also requested additional information 
concerning appellant's attitude problem and documentation of 
specific errors made by appellant in his professional capacity.
(Doc. 28, Ex. 18).

By a memorandum dated September 23, 1976, Mr. Bischoff 
responded to appellant's reply letter, rejected his arguments, 
and informed appellant that his final determination was that 
appellant's termination date would be October 7, 1976 and that 
until that date, appellant would remain in a non-duty status with 
pay. Mr. Bischoff explained again that additional documentation 
was available in Mr. Booth's office and that appellant had a 
right to appeal his final determination. (Doc. 28, Ex. 12).



9

Appellant then initiated the multi-tiered administrative 
review process set out in the District of Columbia Joint 
Committee on Judicial Administration Grievance and Appeals 
Procedures (March 25, 1976). (Doc. 28, Ex. 19 at 3) (appended to 
this brief as Attachment C). Under these procedures, appellant 
was entitled to appeal Mr. Bischoff's termination decision to the 
Clerk of the Court who would then appoint an Appeals Committee 
composed of three supervisory court employees. The Appeals 
Committee, after conducting either an informal review or a formal 
hearing, would advise the Clerk of the Court as to whether the 
termination should be sustained or reversed. _Id. Either the 
Clerk of the Court or the Executive Officer then would be 
required to make a final decision in writing. The Chief Judge of 
the Superior Court, in his discretion, could review this final 
decision. Id.

Pursuant to the appeals procedures, Mr. Joseph Burton, Clerk 
of the Court, appointed James A. Morris (Supervisor of Probation 
Division), Robert Nash (Depty Clerk of the Marriage Division), 
and Chairperson Thomas A. Duckenfield (Chief Deputy Register of 
Wills) to serve on the Appeals Committee. (Doc. 28, Ex. 14A).
The Appeals Committee elected to hold a formal hearing which 
lasted for approximately thirteen days, beginning on February 28, 
1977 and ending on May 11, 1977. (Doc. 28, Ex. 14B; Doc. 25, 
Admin. Tr. 2/28/77, 3/4/77, 3/9/77, 3/10/77, 3/11/77, 3/21/77, 
3/22/77, 3/24/77, 3/25/77, 3/28/77, 5/9/77, 5/10/77, 5/11/77).



10

During the course of the administrative hearing, the 
government put on the testimony of Mr. Booth, Mr. Bischoff, Mr. 
Brown (Director of Personnel), and four other witnesses who had 
regular dealings with appellant over a period of several years. 
Mr. Booth and Mr. Bischoff testified that they received 
complaints from several judges concerning the unsatisfactory 
manner in which appellant performed his duties. 1./ (Doc. 25, 
Admin. Tr. 2/28/77 at 32-35, Tr. 3/4/77 at 8-16, Tr. 3/21/77 at 
28-36, Tr. 3/22/77 at 30). Several witnesses testified that 
appellant's attitude made it difficult to deal with him and to 
perform their own duties. (Doc. 25, Admin. Tr. 2/28/77 at 32-47, 
Tr. 3/22/77 at 15-16, Tr. 3/24/77 at 68, 81-96, 109-122). Both 
Mr. Booth and Linda Easterling, another Family Division employee 
whose desk was near appellant's desk, testified that appellant 
received numerous phone calls at work relating to his

i./Attachments D(l)-(4) appended to this brief are statements from 
judges which were discussed and admitted during these 
administrative hearings. (Doc. 25, Admin. Tr. 5/11/77 at 65,
78). Although we were unable to find copies of these statements, 
or any of the exhibits admitted during the administrative hearing 
in the court's record, we assume from the fact that both parties 
relied on the administrative record below (see, e,g., Plaintiff's 
Motion to Strike, Doc. 37; Defendant's Opposition to Plaintiff's 
Motion to Strike, Doc. 40; Plaintiff's Statement of Material 
Facts, Doc. 25; Defendant's Statement of Material Facts, Doc. 34) 
that the parties below stipulated to the entire administrative 
record, including the admitted exhibits. We note that counsel 
for appellant has apparently drawn the same inference, for 
included in her record excerpts are two affidavits that were a 
part of the administrative record. See Appellant's Record 
Excerpts at R.E. 17.
In any event, this court may take judicial notice of the entire 
administrative record in this case. See generally 6 J. Moore’s 
Federal Practice H56.ll [1.-8], at 56-204J and It 56.11 [9], at 
56-296 to -297 (2d ed. 1983).



11
}

tennis activities and that three to four times per week he left 
early in his tennis outfit. (Doc. 25, Admin Tr. 3/28/77 at 77- 
78, Tr. 3/4/77 at 62-81, Tr. 3/24/77 at 56-64). Ms. Easterling 
testified that he used office typewriters to type on tennis 
stationery, which he kept in his office, and that he gave out 
tennis cards, also stored in his office, to people during working 
hours. (Doc. 25, Admin. Tr. 3/24/77 at 63-64; Doc. 34, Ex. 6A & 
B). Mr. Booth testified that, although appellant made some 
efforts to curtail his tennis activities during working hours 
after he received the March 29 warning that an unsatisfactory 
rating would be issued, even after the warning, appellant was 
seen on a number of ocassions during working hours in tennis 
attire, and appellant continued receiving tennis related 
telephone calls. (Doc. 25, Admin. Tr. 3/4/77 at 68-70). Mr. 
Booth also testified that the survey forms which appellant 
circulated were drafted on office stationery and circulated 
during working hours; and that appellant ignored Mr. Booth's 
direct request for the survey results and instead gave Mr. Booth 
only his own summary of the results. (Doc. 25, Admin. Tr. 3/4/77 
at 30-43).

During the presentation of the government’s case, the 
government introduced numerous exhibits. Appellant objected to 
the introduction of several exhibits which Chairperson 
Duckenfield ultimately excluded from the record. The exhibits 
which were excluded, in large part, specified the errors 
appellant made during the performance of his professional duties.



12

These exhibits were Mr. Booth's handwritten notes, which had been 
retained by him prior to the hearing. Appellant argued, and 
Chairperson Duckenfield apparently agreed, that, although in 
accordance with Superior Court Penalty and Adverse action 
guidelines the September 7, 1976 termination notice informed 
appellant that these materials were available in Mr. Booth's 
office, in order to render these exhibits "admissible," the 
government was required to provide xerox copies of these 
materials to appellant or to include xerox copies in appellant's 
personnel file prior to his termination date. (Doc. 25, Admin. 
Tr. 2/28/77 at 18-19, 131-51; ; Admin. Tr. 3/4/77 at 9-28, 93-95; 
Admin. Tr. 3/9/77 at 61-68; Admin. Tr. 5/11/77 at 78-79). See 
also Plaintiff's Motion to Strike, Doc. 37.

Appellant called approximately four witnesses all of whom 
testified generally as to appellant's ability to perform his job 
well and with a professional attitude. (Doc. 25, Admin. Tr. 
5/10/77). Appellant also testified on his own behalf. He 
admitted that there were courtroom clerks with whom he did not 
get along; that Mr. Bischoff had previously discussed general 
complaints made by judges with him; that he handed tennis cards 
out while at his office; that he used office equipment to type on 
his tennis stationery; that, before being warned, he left the 
office early in tennis attire three to four times per week; and 
that, after being warned, he did change into tennis attire while 
in the personnel office at 613 G Street, N.W. (Doc. 25, 3/28/77 
at 108-44).



- 13 -

At the conclusion of the administrative hearing, the Appeals 
Committee voted 2-1 to recommend that the Clerk of the Court 
sustain appellant's termination. The Committee refused to 
consider Mr. Booth's materials relating to specific errors made 
by appellant in his professional capacity, and then found the 
evidence of "incompetence" to be insufficient. (Doc. 34, Ex. 19A 
at 4-14). Nevertheless, a majority of the Committee, with 
Chairperson Duckenfield dissenting, found that appellant had been 
insubordinant by failing to turn in the survey results and by 
wearing tennis attire during working hours after having been 
warned that this conduct was unacceptable. The Committee, 
therefore, concluded that the termination decision should be 
sustained. (Doc. 34, Ex. 19A at 16-34). On Feburary 13, 1978 
and July 31, 1978 respectively, Joseph Burton (Clerk of the 
Court) and Ernest Bailey (Acting Executive Officer) adopted the 
recommendation of the majority of the Appeals Committee and, in 
so doing, sustained the termination decision. (Doc. 28, Ex. 16 & 
17).

Judge Catherine Kelly, formerly of the District of Columbia 
Court of Appeals, sitting by designation as Acting Chief Judge of 
the Superior Court under D.C. Code §11-707(b) (1981), also
reviewed and sustained the termination decision in an opinion 
dated May 2, 1979. Judge Kelly held that appellant's termination 
notice was constitutionally adequate with respect to the 
specified incidents of insurbordination —  specifically 
appellant's failure to give survey forms to Mr. Booth and hi*



14

"display" of his tennis attire at the personnel office during 
working hours. She noted that notice is contitutionally 
sufficient if the affected party was able to, and actually did, 
prepare an informed response, and that, in this case, appellant's 
counsel did present informed responses to the specific 
allegations of insubordination contained in the notice. (Doc.
28, Ex. 18 at 7-8) (appended to this brief at Attachment E).
Judge Kelly also concluded that, on the basis of evidence 
supporting the insubordination charges alone, the record contains 
subtantial evidence to support the termination decision. ^d. at 
8-9.

Appellant initiated his Title Vll/due process action below 
on September 7, 1979. The trial court entertained cross-motions 
for partial summary judgment on the question of the adequacy of 
the pre-termination notice. Appellant moved to strike several 
exhibits appended to appellee's motion. Appellant's sole 
objection to the court's consideration of these documents was 
that these materials had been excluded by the Administrative 
Appeals Committee at the earlier hearing, and that, therefore, 
they were "outside the record" and irrelevant. (Plaintiff's 
Motion to Strike, Doc. 37). The trial court denied appellant's 
motion to strike. The trial court also rejected their procedural 
due process argument. The court noted that the Superior Court 
Penalty and Adverse Action Guidelines require a pre-termination 
notice both to "state the reasons, in detail, for the proposed 
action" and to "inform the employee where he may review the 
material on which the notice is based," and that these provisions



15

must be read together. In this case, the court stated, the 
notice, together with the supporting materials that had been 
retained by Mr. Booth and disregarded by the Appeals Committee, 
adequately informed appellant of the grounds for the charges of 
"incompetence" and "insubordination," and therefore, the notice 
was not constitutionally deficient. The trial court then denied 
appellant's motion for partial summary judgment and granted 
appellee's motion for partial summary judgment. (Doc. 41 & 42) 
(Doc. 41 appended to this brief as Attachment F). This appeal 
followed.

ARGUMENT
In terminating appellant, his employer, the District 

of Columbia court systems afforded him due 
process of law.

1. Appellant invites this court to treat this case as it 
would a personnel action by a federal agency. See Appellant's 
Brief (App. Br.) at 17. Appellant, however, was not employed by 
an agency of the United States, but by the District of Columbia 
court system, a part of the autonomous District of Columbia 
government. See Doe v. Board of Professional Responsibility,
U.S. App. D.C. ___, 717 F.2d 1424, 1426 n.2, 1427 (1983)
(affirming district court holding under 12 U.S.C. 3401(3) and 
3402 that the local court system is not an "agency or department 
of the United States"). Accordingly, this court's authority is 
limited to addressing noncompliance with constitutional 
requirements.



16

2. Insofar as we understand it, appellant's principal 
argument here seems to be that he was deprived of his 
constitutional rights under the due process clause because, in 
terminating him, the District of Columbia court system allegedly 
did not provide him with a notice which complied with the 
applicable regulation. App. Br. at pp. 20-21. The legal 
principle applicable to this claim is that not every instance of 
noncompliance by a state or local authority with its procedural 
regulations constitutes a denial of due process, but that 
constitutional standards are satisfied if the procedures employed
ensure fundamental fairness. See, e.g., Hewitt v. Helms, ___
U.S. ___, 103 S.Ct. 864, 874 (1983) at 874 (setting forth
procedures constitutionally required) and at 884 & n.27 
(dissenting opinion; showing that "today's majority opinion 
locates the due process floor at a level below existing 
procedures in Pennsylvania"). Cf̂ . United States v. Caceres, 440 
U.S. 741, 753, 754 & n.18, 755 (1978) (failure of IRS to follow 
its regulations in gathering evidence for a criminal action did 
not require the suppression of this evidence or invalidation of 
agency action). We submit, however, that the procedures followed 
in terminating appellant did comply with the local regulations 
applicable here. Even if there were a deviation from the 
applicable regulations, however, the notice provided here was 
certainly sufficient to ensure fundamental fairness.



17

The applicable regulations in this case were the Superior
Court Penalty and Adverse Action Guidelines (June 1974), which
were in effect at all times pertinent to this case. They require
a proposed termination notice in writing "at least 30 days" in
advance of the proposed termination date. This notice must

a. state the reasons, in detail, for the proposed 
action; b. state that the notice concerns a proposed 
action; c. inform the employee of his right to reply to 
the charges, both personally and in writing; . . .
e. inform the employee where he may review the material 
on which the notice is based and the amount of official 
time he may have to review the material and prepare his 
answer to the charges....

(Doc. 28, Ex.20 at 4; Doc. 34, Ex. 18 at 4) (Attachment A 
hereto).7d

In this case, appellant received his notice of proposed 
termination on or about September 7, 1976, thirty days prior to 
his termination date of October 7, 1976. The notice specifically
included under the general heading of "insubordination" a 
reference to the fact that appellant was warned that his "outside 
interests" conflict with his work. Nevertheless, the notice 
stated, he gave a "recent display in the court's personnel 
offices at 613 G Street, N.W." while in his tennis attire and 
during working hours. (Doc. 28, Ex. 9 at 2; Doc. 34, Ex. 15 at

U The regulations also provide for a notice of the final 
termination decision which must be provided "not less than ten 
days" before the termination date, and which must inform the 
employee;

a. which of the reasons in the notice of proposed 
action have been found sustained and which have been 
found not sustained; b. if he replied to the advance 
notice, the reason for rejecting any of his responses 
to the charges; . . .  f. of his rights to appeal and 
of the time limits...." Id. at 5.



18

2) (Attachment B hereto). The notice also specifically referred 
to Mr. Booth's "direction" to appellant "to provide him with 
certain material generated by [appellant's survey of employees]" 
and appellant's failure to respond to this direct response in an 
appropriate manner. bd. The notice, in accordance with the 
personnel guidelines, also advised appellant that "Mr. Booth will 
have any pertinent material and documentation concerning this 
action" and that appellant had the right to reply to the notice 
"both personally and in writing." Appellant's response to the 
notice showed that he fully understood in detail precisely to 
what it referred. See the September 9, 1976 letter from his 
counsel at p.2 (Doc. 28, Ex. 10) ("On the occasion you have 
described wherein Mr. Young was 'displaying his outside interest, 
Mr. Young had received approval from Mr. Booth to leave his job 
site prior to the close of business. Therefore, the act sited 
cannot, having been authorized, constitute insubordination.").3/ 

We submit that, because the notice of proposed termination 
specifically referred to appellant's outside interest, and even 
to an incident in which those interests led him to disregard 
instructions, and because it also specifically referred to his 
disregard of directions in connection with the survey material,

Appellant was also provided the ten day notice informing him 
that his arguments had been considered and rejected; that the 
termination decision was final; and that he had the right to 
appeal his decision. (Doc. 28, Ex. 12).



19

it was sufficiently "detail[ed]M to comply with the applicable 
regulations. Furthermore, there is no serious question that the 
notice was sufficient for constitutional purposes.

A notice is constitutionally adequate if it is specific 
enough to "apprise[] [the interested party] of what he will be 
called upon to defend against." Connelly v. Nitze, 130
U.S.App.D.C.___, 351, 359 n.10, 401 F.2d 416, ___(1968). See
also Fuentes v. Shevin, 407 U.S. 67, 80 (1972) ("meaningful" 
notice required); Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306, 314 (1950)(notice must be “reasonably calculated to 
apprise interested parties of the pendency of the action and 
afford them an opportunity to present their objections"); Hess & 
Clark v. Food and Drug Administration, 161 U.S.App.D.C. 395, 403, 
495 F.2d 975, 983 (1974) (notice should "enable the affected 
party to prepare an informed response which places all the 
relevant data before the agency"). To determine whether or not 
the notice is meaningful and sufficiently specific to enable the 
affected party to know what he must defend against and to prepare 
an informed response, the court should consider what reply or 
defense appellant actually made. See Baughman v. Green, 97 
U.S.App.D.C. 150, 151, 229 F.2d 33, 34 (1956), cert, denied, 355 
U.S. 819 (1957).

In this case, as indicated above, appellant knew precisely 
the incidents to which the September 7 notice referred. (Doc.
28, Ex. 10; Doc. 34, Ex. 16). He was able to draft an "informed 
response" addressing the specific instances of insubordination



- 20 -

included in his pre-termination notice. Ĉd. See also Opinion of 
J. Kelly, Doc. 28, Ex. 18 at 7-8 (Attachment E hereto). 
Accordingly, he was clearly afforded constitutionally sufficient 
notice. 1/

3. Appellant argues that this court must undertake to 
determine whether the local court system's decision to terminate 
him was supported by "substantial evidence." App. Br. at 21.
This is nonsense. Even when reviewing the dimissal of a federal 
employee, this court has held that it may only inquire whether 
such a decision is arbitrary and capricious, and not whether it 
is based on substantial evidence. Doe v. Hampton, 566 F.2d 265, 
271-72 & n.15 (1977) ("[A]n action that is not arbitrary and 
capricious must have some if not substantial evidenciary support 
...."). Certainly no more could be required here, where the only 
source of the Court's authority to review the merits of the 
decision at issue is the due process clause. See Cafeteria & 
Restaurant Workers v. McElroy, 367 U.S. 886, 898 (1961) 
(suggesting that government could not exclude former employee 
from worksite for reasons that are "patently arbitrary"). Cf.

1/Even if the notice here were constitutionally insufficient, 
appellant would not be entitled to relief. Carey v. Piphus, 435 
U.S. 247, 266-67 (1978) (damages for deprivations of 
constitutional rights cannot be inferred), requires a discharged 
public employee seeking relief (reinstatment or back-pay) to 
prove that he would not have been discharged if he had been given 
more specific notice. See Pollock v. Baxter Manor Nursing Home, 
706 F.2d 236, 238 (8th cir. 1983). Appellant was given every 
opportunity, in 13 days of hearings extending over 3 months to 
show that his termination was unwarranted. Far from doing so, as 
indicated below, the evidence quite clearly showed that his 
termination was justified.



Ik

Zannino v. Arnold, 531 F.2d 687, 690-691 (3d Cir. 1976) 
(permitting review of parole board's decision to deny parole to 
determine whether its decision is "arbitrary and capricious").

Even if the standard of review were much higher, however, 
the court system's decision here to terminate appellant would 
clearly pass muster. There was substantial —  in fact, 
overwhelming -- evidence that appellant was insubordinate on the 
two specific occasions discussed in his pre-termination notice; 
that he failed to perform his duties in a competent and even- 
tempered fashion on many occasions; and that he consistently used 
government equipment and government time to pursue his tennis 
business activities. Thus, there were ample grounds, for 
terminating him.A/

- 21 -

^./Appellant's argument that the penalty of removal was arbitrary 
and capricious (App. Br. 25-29) is also nonsense. The personnel 
guidelines specifically provide that more than one instance of 
insubordination may result in removal. (Doc. 28, Ex. 20 at 
Attachment 1; Doc. 34, Ex. 18 at Attachment 1).
Appellant's argument that the District Court must be reversed for 
relying on matter "outside the administrative record" (App. Br. 
at 29-30) is no more firmly based. The Court below relied on 
this material solely to show that, in informing plaintiff that he 
could examine any material pertent to the proposed action against 
him by requesting it of Mr. Booth, the proposed notice put him on 
notice of all the information he could have obtained in that 
manner. (Doc. 42 at 2). In any event, however, the Appeals 
Committee did not terminate appellant on the basis of these 
materials. Appellant, therefore, can claim no prejudice.



22

CONCLUSION
The decision of the trial court should be affirmed.

INEZ SMITH REID 
Corporation Counsel, D.C.
JOHN H. SUDA
Principal Deputy Corporation 
Counsel, D.C.

CHARLES L. RESICHEL
Deputy Corporation Counsel, D.C.

MICHELE GIULIANI 
Assistant Corporation 
Counsel, D.C.
Attorney for Appellee 
Room 308, District Building 
14th & Pennsylvania Ave., N.W. 
Washington, D.C. 20004



ATTACHMENT A



* t ... i•*rv t
S'Z'*/ •/* r

o

; i

’• . 4» statement indicating the reprimand will remain in
' the employee's official personnel folder for one year.

• E. Official reprimands are prepared in duplicate, usually in 
memorandum form. The original is given tc the employee, and the copy 

* is filed in the official personnel folder and removed at the end of 
the one year reckoning period. - ;
HI. Adverse actions. / ’

An adverse action is an action taken to suspend, reduce in rank 
or pay, furlough vrit’nout pay, or remove a permanent employee who., is 
not serving a probationary or trial period. Records of all adverse 
actions become a permanent part of the official personnel folder.

A. Removals, suspensions, furlough without pay, reductions in 
rank or pay. • • '
' 1.' Kotice cf proposed action— the employee is entitled to at 

least thirty days advance written notice of the proposed action. The 
notice must: • • . , \ : k •. *••.•••, *. ; • : '

: ' • a< • 'etate the reasons, in detail, for the proposed action;
b.- state that the notice concerns a proposed action;

;.v V. V . c. inform the employee of. his right' to reply to the 
. • - charges, both personally and in writing; . . •

. d. identify the person to whom the reply must be made 
'• •' *” V ■ and of. the time limit; ...... ’

v . - e. inform the employee where he nay review the material
*'' ""'y. ■: . on which the notice is based and the amount of official

; time he nay have to review the material and prepare his
... ' • ' •' answer to the charges; . • . '\. '•••.

D

•
state that a final decision will not be issued until 
the reply has been made, or at the expiration of the 
time limit if no reply is made;

. g« be reviewed for adherence to procedural requirements 
• v • and policy by the Personnel Division and by the Clerk 

' ■ '■ of the Court or Executive Officer as appropriate before
• ' ' release to the employee. -

• • * 2. Employee's answer to the charncs— any answer the employee
provides, including any affidavits or factual evidence must be considered 
in reaching the final decision.

~ A -



' ;• * ’ 3. Notice of final decision— the employee is entitled to writl
notice*of the final decision as early as possible but usually not less than 
10 days before-the effective date of the action. If the final decision is 
to effect the action, the notice must inform the employee:

. .. a« which of the reasons in the notice of proposed action
■ .. have been found sustained and which have been found

',7. '. ’ ' • .  • 7 not sustained; “. : .. ' :* .’
• '.-I/*'.".:.. * . •••* . v ••

•’ b. if he replied to the advance notice., the reason lor 
/•.... . rejecting any of his responses to the charges;

• c. of the date on vhich the action is to be made effectiv
• • •. ' d. if applicable, the date he is .to return to duty;

e» of his duty status before the action is effected;
• *1-. t . of his rights'of appeal and of the time limits; -
•\. ‘S ' - .. g. of the name and telephone number of the appropriate

. ;* . Personnel Division staff member from whom he may'obtai
*. . • ’• ■ additional information on how to pursue an appeal.
E. Leave or duty status while actions are being processed.

V A n  employee for whom an adverse action- is pending will be carried in 
an active duty status until the action is effected. Annual leave or leave 
without pay nay be granted at the employee's request. When an employee’s 
continued presence at work might (a) result in damage to Government or Court 
property, (b) prove detrimental to the .interests of the Government or the 
Court or (c) be injurious to the health of the employee, fellow workers, or 
the general public, the employee nay be detailed temporarily to duties where 
these conditions would not prevail or he nay be placed in a non-duty status 
with pay. As a final resort and when continued presence on the job clearly 
would be against the Government's or the Court's interest, the employee nay 
be placed on emergency suspension. An emergency suspension may not be 
effected until the case has been reviewed by the Personnel Division and 
the Clerk of the Court and approved by the Executive Officer, who will 
inform the official of the procedures to be followed.
IV. Termination during probation.

Employees are expected to demonstrate that they deserve to remain in 
the Court's employment beyond the one-year probationary or trial period. 
Supervisors are expected to follow closely the conduct and performance of 
probationary or trial period employees; such employees shall be terminated 
during this period if they fail to demonstrate fully their qualifications ' 
for continued employment. Terminations are to be effected according to the 
following procedures.



\ . ; . . • , • . •» ' . Atcachnent 1

: 0  „ '• ' ST Atm ARP TARLE OF OFFENSES AND PENALTIES
. (Guideline) ..

• . w * ■ _ • '
T^e reckoning period for all offenses is one year. The dales when previov 

offenses were committed shall be used in determining whether a current oftense 
is a repetition within the reckoning period and thus should be .counted as a 
second or third offense. Without regard to the reckoning period and when the 
past two-year record reveals that formal disciplinary penalties were assessor 
for at least two other offenses included on this list (even though the pasu 
cffensc.s may be dissimilar to a present act of misconduct) the supervisor 
may recommend the removal of an employee on the basis of the present misconduct 
cund the past record of delinquency. All suspensions .are to be applied aguins. 

•- workdays. . A • . • ' ; " • '  *

Nature of Offense
Suggested Penalty for

1st
Offense

2nd
Offense

3rd
Off ens:

3.

refusal to perform_Ja-Ssigned_work) ; 
insolence-(flagrant and contemptuous 
disrespect.) - .
Fighting on duty or in work areas.

Sleeping on duty (where safety of 
persons or property is endangered.

1-3 day 
suspension

1-5 day
.suspension 
■ to removal
1-5 day 
suspension

1. Insubordination (deliberate and willful Reprimand or 5-10 day Removal
suspensica 
or removal

5-10 day 
suspension 
or removal
5-10 day 
suspension 
or removal

Remove

Removal

4. llisuse, damage, or loss of 
Government or Court property 

. through carelessness or negligence.
■ 5a. Drinking or possession of intoxicants 

• while on duty or on premises (where 
safety of persons or property 
is endangered.) A .'

Official 
reprimand 
to removal

5-10 day 
suspension 
or removal

Remova"

5b. Reporting for duty under the influ- Official 5-10 day 10-day
• encc of intoxicants to a degree which reprimand suspension susper

; ' would intcrcfcrc with the proper . . or ret
performance of duty, be a menace ‘ . " * •
to safety or be prejudicial to the . * . . •
maintenance; of discipline and morale 1 ' .A /.’* ■

• among fellow vorkecs. ’ .



• • \* «»
% - < y ' •

\ / \  : . • ^

\—  .

i'I • «■ l

0-

Nature of Offense
Suggested Penalty for

1st
Offense

0

2nd
Offense

3rd
•Offe

6a. Selling or distributing 
narcotics. ,■ - • . —i. • . v '

Removal
• .. , • • ., • • '.

\ , • ' , 1 » . , '

6b. Possessing, consuming or 
reporting for duty under 
the influence of narcotics.

1-5 day
suspension 
or removal

Removal

7. •Theft, removal of Government 
or Court property without 
permission. (Individual 
circumstances, value of 
item(s) taken, whether 
recovered, restitution 
made, etc. will be considered- 
in arriving at penalty.)

Official 
reprimand 
to .removal

■* i‘ • ” * 1. ".1• • # ;«,*?• T ̂ % 
. . , v •

5-10 day 
suspension 
'or removal•••* % ,v. ̂

< •
Remcr

8. Immoral or indecent acts, on 
the job. Misconduct off the 
job which is prejudicial to the • 
image cr reputation of the 
Court or the Government. •

Official 
• reprimand 
to removal

Removal ■ f

• 9a. Promotion of gambling. • ~ ■ 5-10 day 
r suspension 
or removal

' Removal
. .

9b. Gambling while on duty 
or on premises. -
• • •*.•**•.•*;

Official 
. reprimand to 
10-day 

. suspension

10-day 
suspension , 
or removal

Rernov

. IS- Failure to carry out specific 
verbal or written orders or to 
.observe regulations prescribed 
by competent authority:

*
. »

- •

a. Safety of persons property 
endangered. Official 

reprimand or 
1-5 day 
suspension

5-10 day 
suspension 
or removal

Remov:

• b. Safety of persons or
property not endangered. Official

reprimand 1-5 day
suspension

10—da;
susper
or ret



__________Suggested Penalty for______
Nature of Offense 1st 2nd 3rd

Offense Offense Offense
l * • . ».. * v • ' • • . •***. * ; - . .
! : - n . Absence without leave or • . . .

•  • * ,.rf
• ...

approval: • ■ ; V . * ■
V a. Habitual unexcused Official 1-5 day 5-10 day suspc

i  •••■•■" absences. ... reprimand suspension sion (removal
■■■ >. • m • i. - 4th.offense)
b. 1-5 working days., Official 1-5 day 10-day suspens

reprimand suspension or removal
c. 6 or more working days ■ Official 10-day Removal

. (excessive unauthorized reprimand suspension
1 • "■ /

absence.). . to removal or removal ’ ■ - • ..
\< 12. Loafing, willful idleness, Official 5-10 day 10-day surperms

• malingering, failing to " reprimand suspension or removal
carry out regularly ■ or 1-3 day • “ ’ . # ...
assigned duties, or to - ■ suspension *• '* * . - * .*
make assigned patrols,

i V :- • etc. • — *;v .*.** * r‘ . 7 *. • • *
1 r
i . ' 13. Creating a public disturbance Official 5-10 day Removal
; rudeness or use of threaten- reprimand suspension
. • . - ■ ing language to other persons. ot 3-5 day or removal

• • • . . •• • * *"% suspension
14a. Abandoning post of duty without Official 5-10 day Removalproper authorization. . reprimand suspension

•  * • • • . * . or 1-day _• ••
V  suspension

14b. Abandoning post of duty • 1-5 day 5-10 day Removal.without proper authorization suspension suspension *
t (where safety of property . . ’ *

or persons is endangered.) •  * *• * * ;
- ■  • •  • ;  :  :  .  -  ■

I  •  /  . .  *  • .

.  ~ • • f

"
. •  . •  #  •

o  ’  "  ;•
.  *  •  •

■ •  •
. •

0
*  •  •  •

i •

> -  . .

C • ^'£~V -T V
> •  . - . T -  “ V — ^  .  .

t - /  . •r- /i
K k -  -

0



ATTACHMENT B



September 7, 1976

j

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Y.*■ ,
•

A1*• > -

V* .rt "I i

MEMORANDUM TO: Mr. Daniel A. Young
FROM: John M. Bischoff
SUBJECT: Notice of Proposed Adverse Action 

Termination of Employment

You are hereby notified that I propose to 
terminate your employment with the court on the 30th 
day following the date of this notice, namely the 
7th day of October, 1976.

I. The reasons therefor are as follows:
A. Incompetence. It has become increasingly 

evident over the past year-and-a-half that you do not 
possess the necessary ability to perform the required 
functions of your position, in that the accuracy of your 
judgments and decisions necessary to be made is well 
below an operational level of acceptability. Together 
with this you have consistently displayed'attitudes in 
your relationship with the practicing bar, the public 
the judges and your fellow employees which create an 
animosity which results in resistance, anger and con­
fusion. You have been unable to act as a positive 
catalyst between the various agencies and individuals 
both inside and outside of the court which is of great 
importance in moving the various calendars in the system. 
This failure results in unnecessary frictions with an 
unnecessary and unfair resultant image of our judicial 
system. There is a highly visible deficiency in your 
ability to promote a better relationship between employees 
under your supervision which has an adverse affect on the 
capabilities of that branch. Your ability to give an 
acceptable degree of attention to the details of your 
assigned tasks in extremely deficient and is evidenced by 
a continuum of errors resulting in burdensome efforts 
by others to correct them which we can ill afford. You 
have displayed that you are incapable of learning from 
past -mistakes and are not amenable to constructive 
criticism or change all of which leads to a logical 
conclusion that any hopes for rehabilitation are not 
practical for consideration.

.  v . . . -  / .  -  -



tt j B ‘ Ig-s^bordination. You have consistently displayed, and indeed continue to display a failure to 
Srtmn to authority which at ttaas hare birdeJed upla ° : 
contemptuousness. This has been particularly apparent ■
attsurhSt?'m t0 y°Ur duties in assigning cases to judges' 
Wh-no aS y°U are char&ed with this function,while this assessment in some instances may have been 
unwarranted in your opinion, it is the r e s u l t ?  thl

on 1 ° ^  Part to adequately advise the court of the reason behind your anticipated actions. This 
failure relates back to your deficiency in making
r e l f t i o ^ M n eJiSi°nS requirinS Positive results. Your relationship to your immediate supervisor has been such
chie? o ? " ^ etwly fJUStrate him in his capacity as the chief of the branch regarding day-to-day personnel
t Pn e l n l X r n S ' F?cently. I refer to his directionto you to provide him with certain material generated

Z°UrrtSur^ey of employees in the branch which he had
hppn nnd-̂ EveU aft!;r a direct request, there has still been no response other than the expression of your own
attemn?StregK^ding the Survey-" Moreover, your recent attempt to obtain approval for leave based upon an illness 
in your family was challenged and you refused to accept 
the opportunity given to explain the rathe? bla?aJ ? P
fttit?d?n? M ihV°1Ved’ further sustantiating the scornful Y?? ?^d Zh± h ^  aPParently have for those in authority 

J bee  ̂a?vised frora time to time that your out- 7‘ side interests have been in conflict with your work
b Z T ' i r ? aVe f6en fit to flaunt these interests before a!l who would have occasion to be near even to
at 613 Gnl f  ? r?CSnt 5iSplay in the court 1 s offices at 613 G Street, N.W. Your actions in this regard and
many others, are taken to mean that you place your •

intereft ahead of those of the court when in a duty status, and as such further identifies your insubordinate attitude. *

, Ix* Jhis notice by its title indicates thatit is a proposed action. You have the right to reply to 
these charges both personally and in writing. Any such 
replies shall be made to me before the 17th day of 
eptember. Mr. Booth will have any pertinent material 

and documentation concerning this action, and, in view 
of Section III which follows regarding your duty status 
xt is unnecessary that official time be allotted for 
review and preparation purposes. A final decision will

iSfUe u?tJ4 a reP1Y has been made or the time for which to make it has expired.



o  o O  o

the past and current work relationship^witt^feliow0 ^

dutie^'where^this3 ”a^ er> you be either detailed to 
duty status with pay“ in? L e rHT?11 ?r placed In a non'
wouldS^“ °suifeJ1?rom1?h0°Urt a^a“ ”b°=’ t o ^ e  which ^
a  r s s r  I S i C -day of September P 7 °°nmen=ing on the 8th

Approved as to Form:

\

i



ATTACHMENT C



•>
I
1

3. G r ie v a n c e s

4.  P o s i t i o n  C l a s s i f i c a t i o n

I I .  CONCILIATION

With in  f i v e  days o f  the  r e c e i p t  o f  any c o m p la in t  by an 
employee,  a s u p e r v i s o r y  employee from an o r g a n i z a t i o n a l  component 
o t h e r  th a n  t h a t  i n  which th e  c o m p la in t  a r o s e  s h a l l  be ap p o in te d  
as a c o n c i l i a t i o n  o f f i c e r .  I f  the  c o m p la in t  i s  made by an 
employee o f  t h e  D.C. Cour t  o f  Appea ls  o r  th e  S u p e r i o r  C o u r t ,  t h e  
c o n c i l i a t i o n  o f f i c e r  s h a l l  be a p p o i n t e d  by th e  r e s p e c t i v e  c h i e f  
j u d g e ,  o r  t h e  C le rk  o f  th e  Cour t  as  t h e  Chie f  J u d g e ' s  d e l e g e e ,  
and i f  t h e  c o m p la in t  i s  made by an employee of  the  D.C. Court  
s y s tem ,  t h e  c o n c i l i a t i o n  o f f i c e r  s h a l l  be a p p o i n t e d  by the  J o i n t  
Committee on J u d i c i a l  A d m i n i s t r a t i o n  o r  i t s  cha i rm an .  The con­
c i l i a t i o n  o f f i c e r  s h a l l  (a)  c o u n s e l  the  co m p la in a n t  w i th  r e s p e c t  
to  h i s  r i g h t s ,  (b) make w h a te v e r  i n f o r m a l  i n q u i r y  w i th  r e s p e c t  
to  t h e  c o m p la in t  he b e l i e v e s  n e c e s s a r y ,  and (c)  s eek  a r e s o l u t i o n  
of  the  c o m p la in t  by means o f  c o n c i l i a t i o n .  The c o n c i l i a t i o n  
o f f i c e r  s h a l l ,  i n s o f a r  as  p r a c t i c a b l e ,  r e s o l v e  t h e  n a t t e r  w i t h i n  
tw enty-one  days a f t e r  r e f e r r a l  of  t h e  c o m p la in t  t o  him. I f  the  
c o n c i l i a t i o n  o f f i c e r  i s  unab le  to  r e s o l v e  th e  c o m p la in t  by means 
of  c o n c i l i a t i o n ,  he s h a l l  p rompt ly  so  in fo rm  the  com pla inan t  who 
may t h e r e a f t e r  a v a i l  h i m s e l f  o f  t h e  r i g h t s  h e r e i n a f t e r  s e t  f o r t h .

I I I .  ADVERSE ACTION

A. Coverage

Any c o u r t  employee who i s  s e r v i n g  under  a permanen t  a p p o in tm e n t ,  
and has  com ple ted  the  r e q u i r e d  1 - y e a r  p r o b a t i o n a r y  p e r i o d ,  may use 
the  p r o c e d u r e  d e s c r i b e d  i n  t h i s  s e c t i o n  to  a p p e a l  from a f i n a l  
d e c i s i o n  t o  t a k e  one o f  t h e  f o l l o w i n g  a d v e r s e  a c t i o n s :

1. Removal

2. S u s p e n s io n  w i t h o u t  pay

3. Fur lough  w i t h o u t  pay

4. R educ t ion  i n  rank  o r  pay

5 .  D e n ia l  o f  p rom ot ion  where th e  p r i n c i p a l  p rom ot ion  
c r i t e r i a  a r e  o f  an o b j e c t i v e  c h a r a c t e r

-  2 -

, n
" < Ur

'5

k

t.
• I?[■
■ i

i



B. P r o c e d u re

'An a p p - a l  from a f i n a l  d e c i s i o n  made w i t h  r e s p e c t  to  an 
employee of  t h e  D.C. Cour t  o f  Appea ls  or  tn e  S u p e r i o r  Cour t  
s h a l l  be  made to  t h e  C le r k  of  t h e  p a r t i c u l a r  C o u r t ,  and an 
s h a l l  d e c i s i o n  made w i t h  r e s p e c t  to  an employee
J t a e  D C  Cour t  System s h a l l  b e  made to  the. E x e c u t iv e  O f f i c e r .
The a p p e a l  must be  i n  w r i t i n g ,  must s e t  f o r t h  c l e a r l y  
r e a s o n s  th e  a p p e l l a n t  f e e l s  the  a d v e r s e  a c t i o n  was n o t  j u s t i  
f l p d  w i t h  such o f f e r  o f  p r o o f  and documents a s  th e  employee 

I l f  " b „ l t  and c o s t  be  made a f t e r  t h e  f i n a l  d e c i s i o n  
to  t a t a  the  a d v e r t a  a c t i o n  b u t  no l a t e r  th a n  15 days a f t e r  
t h e  e f f e c t i v e  d a t e  o f  t h e  a c t i o n .

The C l e r k  of  t h e  p a r t i c u l a r  Cour t  o r  the  E x e c u t iv e  O f f i c e r ,  
a s  t h e  c a s e  nay b e ,  s h a l l  a p p o i n t  an Appeals  Committee which 
“ i ?  r e c e i v e  and r h i e w  a p p e a l s  of  a d v e r s e  a c t i o n s  «nd d i s c r t a -  
t a c t i o n  c o m p la in t s  f i l e d  by employees i n  acc o rd a n c e  w i t h  t h e  
p r o c e d u r e s  p r e s c r i b e d  h e r e i n .

The Appea ls  Committee w i l l  be  composed o f  n o t  more tlian_ 
t h r e e  s u p e r v i s o r y  employees  who w i l l  s e r v e  on an ad h o e b a s i s .  
t a  member o f  the  Committee s h a l l  s e r v e  on a c a s e  i n v o l v i n g  an 
employee o f  h i s  o r g a n i z a t i o n a l  component .

The Appeals  Committee w i l l  conduc t  an i n f o r m a l  rev iew  o f  t h e
i n 7 n r PT,a r e  a r e p o r t  to  th e  C l e r k  of  t h e  p a r t i c u l a r  C our t

o r ? th e  Executive O f f i c e r ,  as  t h e  case  may be, recommending a o r  he  t r e e  ^  ^  ^  th e  E x e c u t iv e  o f f i c e r
, a t  a d d i t i o n a l  d o c u m en ta t io n  i s  n e c e s s a r y  he  may o r d e r  

bt b M  afsfofmfftfefo c o n d u c t  a formal h e a r i n g  and p r e p a r e  a
r e p o r t !  b a s ed  t h e r e o n ,  recommending a d e c i s i o n .  The C le r k  of  

r J i r t -  o r  th e  E x e c u t i v e  O f f i c e r ,  as  t h e  c a s e  may b e ,  w i l l  
i s s u e  th e  f i n a l  d e c i s i o n ,  e x c e p t  t h a t  an employee  of  one o r  th e  
two c o u r t s  who has  been  suspended  w i t h o u t  pay  f o r  a p e r i o d  i n
e x c e s s  of  t w . i t ,  day;, o r t o

t t a hE x e c u t i v e y0 f f i c e r  who w i l l  r e n d e r  a f i n a l  d e c i s i o n  i n  w r i t i n g .  
M v  f i n a l  d e c i s i o n  un d e r  t h i s  p a r a g r a p h  or  under  p a r a g r a p h  IV 
ta lo w  a f f e c t i n g  an employee o f  e i t h e r  c o u r t  may be  rev ie w e d  i n  
b i s  d i s c r e t i o n  by t h e  C h ie f  Judge  of  t h a t  C o u r t ,  and any f i n a l  
d e c i s i o ^ u n d e r  t  i s  p a t a g r a p h ^ o r  - d e r ^ a t a g t a p h ^ b e l o w ^ ^

i n ^ i t s ^ d i s c r e t i o n ° b y  t h e  J o i n t ' Committee on J u d i c i a l  A d m i n i s t r a t i o n  
o r  i t s  cha i rm an  upon d e l e g a t i o n  by the  J o i n t  Committee.

3



ATTACHMENT D



t

STATEMENT OF JUDGE RICKARD R. ATKINSON

On or about 3:30 p.rn. on a day in January 1975 
while assigned to the Family Division, I had occasion to 
inquire of the Assignment Office as to whether or not there 
were any cases remaining to be tried that afternoon. Upon 
being assured by Mr. Young, Deputy Assignment Commissioner, 
that no cases remained for trial, I returned to my chambers 
and prepared to finish up some other business and to depart.
I received a telephone call from Mr. Young advising me that 
one more case did in fact remain to be tried. I informed 
Mr. Young that I had made other plans based upon his earlier 
assurances, and therefore could not accommodate uhis request. 
He became adamant that I take the case, and since the con­
versation was deteriorating rapidly, I ended it abruptly. As 
I prepared to leave, the case arrived in the reception a^ea 
shared by Judge Ryan and I. I was then told by my staff 
that Mr. Young had also called Judge Ryan to request him to 
take this case. Apparently he also had other plans which 
made this impossible. Despite this, Mr. Young sent the case 
over creating an embarrassing and uncalled for confrontation. 
The next morning, I requested Mr. Bischoff, Director of the 
Family Division, to meet with me in chambers to discuss this 
matter as well as the general problems relating to Mr. Young's 
performance in the assignment function. Y*e were joined by 
Judge Ryan who verified the sequence of the events of the

NA7, f
A p p e n d i x  1



(

P ^ s t  a f t e r n o o n  a s  t h e j 7  r e l a t e d  t o  h i m .  

e x t r e m e  d i s s a t i s f a c t i o n  w i t h  t h e  r u d e n e s s  

a t t i t u d e  o f  M r .  Y o u n g ,  a n d  r e q u e s t e d  t h a t  

t a k e n  t o  i m p r o v e  t h i s  s i t u a t i o n .

e x p r e s s e d  o u r  

a n d  u n c o m p r o m i s i n g  

s o m e  a c t i o n  b e

F e b r u a r y  2 2 ,  1 9 7 7



STATEMENT OF JUDGE JOSEPH H. F. RYAN, JR.

Reference is made to the statement of Judge Richard R.

Atkinson with respect to the conduct of Deputy Assignment 

Commissioner Young. I wholeheartedly concur with Judge.

Atkinson's statement and certify that it represents my 

recollection of the incidents described. I should like to 

add that on several occasions it was reported to me that 

Deputy Assignment Commissioner Young had been rude and ungentle- 

manly on the telephone, not only to my own secretary, Miss 

Upchurch, but also to Judge Atkinson's secretary, Miss Barbara 

Brooks, both of whom share the same outer-office.

I believe that it was on more than one occasion that I '• 

telephoned Mr. John Bischoff, the Director of the Family Division, 

to complain about the conduct of Mr. Young and I further instructed 

my enrolling clerk that whenever possible he was to deal with Mr. 

James Booth, the Family Assignment Commissioner, rather than with 

Mr. Young.

f-L A//V, Appendix 1-B



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July 14, 19.76

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HKMOKANDUM

TO: Mr. John Bischoff
\y

FROM: Ju d g e  S y lv lu  Bacon

This is to suggest that the Assignment Office be reminded 
to examine the Court dockets with care when selecting dates for 
disposition or review in juvenile cases.

In the case of Montel Shipman, 0J-4988-74, on February 5, 
1976, that probation was "extended until disposition of the 
new case." Thereafter, on,June 14, 1976, the new case, 
docket no. J-1816-76, was dismissed. In dismissing the new case, 
the presiding judge made an entry indicating that the older case 
was to be set for review of probation by the Assignment 
Commissioner. On June 16, 1976, the Assignment Commissioner 
6et the case for review of probation on December 10, 1976.

While we cannot expect the Assignment Office to be lawyers, 
I think that we could expect them to check the docket and not 
set a case for review some six months after jurisdiction has 
expired. In this case, review should have been held on June 14, 
1976 or alternatively the case should have been brought to the 
immediate attention of a judge.

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FAMILY DIVISION :J' ;:: ::
JUVENILE BRANCH ;

IN THE MATTER OF: 

NAME: m o ntel s h ipm an

BORN: 3-22-59
SOCIAL FILE NO.:
(CO -R ESPO N D EN T)

A T T O R N E Y

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CASE C O N TIN U ED  T O :_ > Q ~  9 -  2  V  FO R 7 vT-c^  /

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It 'S I O

> O U  H I N .  O R A N I O N  
T A F F O H D  f t  W t U U E H

.  D .  C .  2 0 0 0 1

IN RE: Termination of

Daniel A. Young Administrative Hearing No.

AFFIDAVIT OF THE HONORABLE 

H. CARL MOULTRIE

I, Judge H. Carl Moultrie, being first duly sworn on oath, do depose 

arri say;
1. I have never made a formal or informal ccirplaint against Mr.

Daniel A. Young, Deputy Assistant Assignment Ccmmissioner, Family Division, 

to anyone.

2. After an incident that occurred in 1973 between Mr. Young and my , 

courtroom clerk, I never did use Mr. Young's services again.

3. However, the only time I ever spoke with Mr. John Bischoff concerning 

Mr. Young was approximately three (3) months ago, after the commencement of 

the proceedings herein, and at the iniation of Mr. Bischoff.

H. CARL MOULTRIE

DISTRICT OF COLUMBIA, ss :

Judge H. Carl Moultrie, being first duly sworn on oath, deposes and 
says, that he has read the foregoing Affidavit by him subscribed and knows 
the contents; that the facts stated therein are true to the best of his 
knowledge, information and belief.

SUBSCRIBED AND SWORN TO before me this

/ M y  C c i i i n i s s i ^ n  E m p ir e s

' r- '  •I ’ * S ' *
. y  —

is of 1977 •

" *  iy

r

Cary Public, D.C.



ATTACHMENT E



SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

In the Matter of Daniel A. Young Appeal of Adverse Action —
Termination of Employment.(Case No. 78-1 (G))

This appeal to the undersigned, sitting by desig­
nation as Acting Chief Judge of the Superior Court under 
the provisions of D.C. Code 1973, S 11-707(b) upon the 
presentation by the Chief Judge of that Court of a 
certificate of necessity pursuant to D.C. Code 1973,
S 11-908 (b), marks an attempt by Daniel A. Young to gain 
relief from the termination of his employment with the 
Superior Court. Procedurally, this is the second of a 
two step administrative appellate process. After receipt 
of a notice of termination, an employee of the Superior 
Court may appeal that decision to the Clerk of the Court, 
who then appoints an Appeals Committee. The recommenda­
tion of the Appeals Committee, if adopted by the Clerk 
of the Court, may be appealed further to the Chief Judge 
of the Superior C o u r t . I t  is the latter appeal with 
which we deal now.

Daniel A. Young was first employed by the Superior 
Court in 1965 as a clerk typist. In the foil owing year, 
he moved up the ranks, serving as an Enrolling Clerk and 
Courtroom Clerk to an Associate Judge, and, later, to 
the Chief Judge. In February of 1971, he became Assistant 
Assignment Commissioner in the Family Division of the

Joint CamniijLta.e on Judicial̂ Mginistration for h p̂ District 
of Columbia Courts, Grievances and Appeals V IIIB at~3 
(March 25, 1976). Because Young was removed, he was allowed 
to appeal the Clerk's decision to the Executive Officer, who 
also adopte^th^ppealsCoiiijTudtee^srecoiTiiTiendation. Id.



Superior Court. On October 7, 1976, he was fired from 
that position.

bis capacity as Assistant Assignment Commissioner, 
Young s responsibilities consisted mainly of arranging 
the calendar. In the Family Division, cases are not set 
for a particular judge on a particular date at a parti­
cular time. Rather, cases are scheduled for a date only, 
and on that date a member of the assignment office assigns 
the cases to judges as they become available. Young's 
position required that he deal with the public, attorneys, 
and judges.

Young first became aware that his work was less than 
acceptable when he received his Report of Performance 
Rating for the first quarter of 1976. Out of 21 of 32 
possible categories upon which his Supervisor, James Booth, 
rated him, Young received unsatisfactory (weak) ratings 
on seven. Ten days later, he received his annual per­
formance report,—^on which Booth rated him on two addi­
tional categories, rating him satisfactory on one and 
unsatisfactory on another. In all other respects, the
two reports were identical. Although the reports carried

«

different dates, the commentary accompanying them was 
apparently compiled at the later date since the first 
report was appended with comments on five areas of unsat­
isfactory work and the second report contained comments 
on three categories.
5------------The annual report covered the period between April 1,
1975 and March 31, 1976. The report forms were identical, 
each spelling out 32 categories for which the Supervisor 
could mark a check, minus, or plus, noting satisfactory, 
unsatisfactory, or outstanding work respectively. The 
Supervisor is supposed to provide comments as to any unsatisfactory ratings.

-2-



On September 7, 1976, Young was notified of 
"Proposed Adverse Action - Termination of Employment"
[hereinafter referred to as notice]. The notice contained 
allegations of incompetence and insubordination. It 
alerted Young to his rights and noted his placement on 
non-duty status effective September 8, 1976. Because

• ithis notice forms the basis of the present appeal, 
reproduction of a large part of it herein seems warranted.—^

B. Insubordination. You have consistently 
displayed-] and indeed continue to display, a 
failure to submit to authority which at times - 
have bordered upon contemptuousness. This has 
been particularly apparent with regard to your 
duties in assigning cases to judges at such
times as you are charged with this function. ’ ,
While this assessment in some instances may 
have been unwarranted in your opinion, it is 
the result of the failure on your part to ade­
quately advise the court of the reason behind 
your anticipated actions. This failure relates 
back to your deficiency in making judgmental 
decisions requiring positive results. Your 
relationship to your immediate supervisor has 
been such as to completely frustrate him in 
his capacity as the chief of the branch regarding 
day-to-day personnel operations. Most recently,
I refer to his direction to you to provide him \ 
with certain material generated by your survey 
of employees in the branch which he had approved.
Even after a direct request, there has. still 
been no response other than the expression of 
your own opinions regarding the survey. More­
over, your recent attempt to obtain approval 
for leave based upon an illness in your family 
was challenged and you refused to accept the 
opportunity given to explain the rather blatant 
discrepancy involved, further sustaining the 
scornful attitude which you apparently have 
for those in authority. You have been advised 
from time to time that your outside interests 
have been in conflict with your work, however, 
you have seen fit to flaunt these interests 
before all who would have occasion to be near 
even to the extent of a recent display in the 
court's offices at 613 G Street, N.W. Your 
actions in this regard, and many others, are 
taken to mean that you place your personal

The allegations of incompetence were not accepted by 
the committee and play no part in this appeal.

-3-



interest ahead of those of the court when 
in a duty status, and as such further iden­
tifies your insubordinate attitude.

■ This notice by its title indicates that it is a proposed action. You have the 
right to reply to these charges both personally 
and in writing. Any such replies shall be 
made to me before the 17th day of September.
Mr. Booth will have any pertinent material 
and documentation concerning this action, 
and, in view of Section III which follows 
regarding your duty status, it is unnecessary 
that official time be allotted for review and 
preparation purposes. A final decision will

issue until a reply has been made or the 
time for which to make it has expired.

III. In view of the nature of this action 
and the past and current work relationships 
with feilow employees, judges, the bar and the 
public, it would be to the best interest of 
the court that, pending the completion of this 
matter, you be either detailed to duties where 
this would not prevail or placed in a non-duty 
status with pay. I have determined that there 
is no position within this court available to 
me which would not suffer from the same rela­
tionships prevailing in your current assignment. 
You, therefore, are placed in a non-duty status 
with pay commencing on the 8th day of September.

By notice dated September 23, 1976, Young was notified 
that his termination would take place on October 7, 1976. 
That notice sustained all of the reasons for termination 
that were staged in the notice of proposed action. It 
contained responses to Young's attorney's reply to the 
notice of proposed action, set the date for termination, 
placed Young on non-duty status until termination, informed 
him of his right to appeal, and provided him with the 
name and telephone number of the individual.whom he might 
contact for additional information.

Young pursued his right to appeal to the Clerk of 
the Court who appointed an Appeals Committee.4/ A majority 
4 ~The Committee was composed of James A. Morris, Supervisor 
of the Probation Division; Robert T. Nash, Deputy Clerk 
of the Marriage Division; and Thomas A. Duckenfield, 
Chairperson, Chief Deputy Register of Wills.

-4-



of the Committee, Mr. Duckenfield dissenting, held that 
while as to most of the allegations the notice of proposed 
action was so imprecise as to fail to provide Young the 
procedural due process guaranteed him, as to two charges 
the notice was sufficiently precise. And as to those 
charges, the majority of the Committee found that there 
was sufficient evidence to sustain the termination of 
Young's employment with the Superior Court.

Young argues on appeal that he was denied due process 
and that there is not sufficient evidence on the record 
to sustain the findings of the Appeals'Committee. Because 
of the limited findings of the Committee, the lynchpin 
of appellant's complaint must be based on the two charges 
that gave rise to his ultimate discharge, namely, that 

failed to turn over.to.his_£upervisor-certaxn surveys 
that he had distributed, and that his activities outside 
of his employment interferred with the performance of his 
duties.

In April of 1976, Young circulated a survey, which 
he had drawn up, to the members of his office. The object 
of the survey was to elicit from Young's co-workers their 
view of his performance. The survey was tactfully drawn; 
its facial purpose was to obtain ideas for improving the 
general ambiance of the office. Young's Supervisor,
James Booth, requested that the information obtained 
from the survey be transmitted to him. Young transmitted 
only a summary of the results. In fact, with the excep­
tion of one survey, the data was uniformly benign. The 
one exception, however, contained a fairly detailed 
criticism of Young. Booth did not contact Young further 
on the subject of the surveys; he noted at the appeals

-5-



hearing that "[i]t became obvious, in my opinion, that 
he was not going to give . . . [the actual survey results]
to me."

The other allegation of wrongdoing stems from Young's 
enterprise as a tennis instructor. In that capacity,
Young had disseminated to the public business cards 
containing his home and office telephone numbers, the 
latter being marked through with a single narrow line.
The number was still quite legible. Young apparently 
received so many telephone calls at work that he was 
told to curtail the tennis activity. In August of 1976, 
after the issuance of an unsatisfactory performance 
rating, Young sought permission to go to the Personnel 
Office at about four o'clock in the afternoon. After he 
had completed his business there, he went into a men’s 
room and changed into his tennis attire. This action, 
appearance in tennis attire during working hours, was 
reported to Young's Supervisor.

The notice, quoted supra, contained the following 
references to the above discussed events:

Host recently, I [John M. Bischoff, Director 
of the Family Division] refer to his [Booth's] 
direction to you [Young] to provide him with 
certain material generated by your survey of 
employees in the branch which he had approved.
Even after a direct request, there has still 
been no response other than the expression 
of your own opinions regarding the survey. . .
You have been advised from time to time that 
your outside interests have been in conflict 
with your work, however, you have seen fit to- 
flaunt these interests before all who would 
have occasion to be near even to the extent 
of a recent display in the court's offices at 
613 G Street, N.W. . . .

The questions presented on this appeal are, therefore,



whether the above stated allegations provided sufficient 
notice to appellant and whether there exists substantial 
evidence on the record as a whole to sustain the Committee's 
conclusion.

It is well accepted that notions of procedural due 
process militate that certain procedures be followed in 
an adjudication of an individual's property right. E.q., 
Goldberg v. Kelly, 397 U.S. 254, 262 (1970). Adequate 
notice of the grounds for denying a particular "right" 
is such a procedure, and discharge from public employment 
is a withdrawal of such a right. See id.; Slochower v.
Board of Higher Education, 350 U.S. 551 (1956); Super. Ct. 
Penalty and Adverse Action Guidelines 11 III(A) (1) (1974) 
[hereinafter Guidelines).

Regardless of constitutional requirements, appellant 
urges and we accept that no individual can suffer termin­
ation of permanent employment with the D.C. Court System 
without adequate notice. See Guidelines. supra 11 III (A)
(1). The Guidelines state:

Notice of proposed action —  The employee 
is entitled to at least thirty days advanced 
written notice of proposed action. The 
notice must:

a. state the reasons, in detail,
for the proposed action; . . . .
[Id.]

The D.C. notice requirements seem subsumed within general 
due process guarantees.

Notice is adequate where it provides sufficient infor­
mation to "enable[] the affected party to prepare an informed 
response. . . . "  Hess i Clark v. Food & Drug Administra­
tion, 161 U.S.App.D.C. 395, 403, 495 F.2d 975, 983 (1974).



As such, the notice must provide "the nature of the facts
and evidence on which the agency proposes to take action."
-  ' ^  ^ H l i a r ^ ^ r e e n ,  97 U.S.App.D.C. 150, 229 F.2d 
33 (1956).

One test of the adequacy of notice functionally used 
by the United States Court of Appeals for the District 
of Columiba Circuit, is whether the individual alleging 
lack of notice actually responded to the charges. Baughman 

Green, supra. Here, appellant’s counsel in her response 
to the notice did refer specifically to the two incidents 
that are questioned now. She did make reference to appel­
lant s inability to respond to certain other allegations, 
citing vagueness. However, she presented a short response ■ 
to the statement concerning the survey and the statement 
concerning appellant’s outside interests.

Although the notice was clearly deficient in several 
respects, it cannot be said that, with respect to the two 

. aUe9ations that were upheld by the Committee, appellant 
was denied "a fair chance to defend himself." Blackman 
~  nited States, 120 F. Supp. 408, 413 (1954), quoted 
in Baughman v. Green, supra at 151, 229 F.2d at 33-34.1/

Appellant's remaining argument is that the Committee’s 
findings are not supported by the record. Once again, 
we limit our discussion to the findings concerning the 
survey and appellant's outside interests.

review, the factual findings o£ ad.inistr.tive 
toJy cannot be disturbed if there i, substantial evidence 
on the record taken as a whole on which those finding.

unsat  i s  f ac t  orydperfQt
notify hi. of what a c U o ^ ^ s S d ' S e " ^ * “ o"L'‘° „ . performance. See Superior Court p o v c r ,  * ,  f c ■ lr?prove his g&rform=nce_RatHTqS-ffg7°f 'uf' 1 ̂ vision t

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are based. Washington Post Co. v. District Unemployment 
Compensation Board, D.C.App., 377 A.2d 436 (1977); D.C. 
Code 1973, S 1-1510 (3) (E) . Substantial evidence is "more 
than a mere scintilla. It means such relevant evidence 
as a reasonable mind might accept as adequate to support 
a conclusion.” Richardson v. Perales, 402 U.S. 387, 401 
(1971), citing Consolidated Edison v. NLRB, 305 U.S. 197, 
229 (1938); Washington Post Co. v. District Unemployment 
Compensation Board, supra at 439.

On this record, there is sufficient evidence to . 
support the Committee's findings. The Committee heard 
testimony from Booth concerning the survey. It credited 
his assertion that a further request for the raw data 
from the survey would have been fruitless and that appel­
lant was displaying insubordination. As to the other 
allegation, the Committee was informed that appellant had 
been warned about his outside activities interfering with 
his work. In fact, there was evidence on record that 
directly supported the allegation.-^

Finding no constitutional or other infirmities in 
the notice, and finding that there exists substantial 
evidence on the record to support the determination to 
terminate Young's employment, that action is sustained.

Appellant argues that the Committee impermissibly reversed 
the burden of proof. This argument ignores the substance 
of the Committee's fact-finding investigation and is with­out merit.

May 2, 1979

6



ATTACHMENT F



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

DANIEL A. YOUNG
Plaintiff

v.
JAMES J. BOOTH, et al 

Defendants

Civil Action No. 79-2372
f i l e d
JUN 8 1981

MEMORANDUM OPINION JAMES F.. DAVEY, Clerk

This matter is before the Court on cross-motions for 
partial summary judgment and plaintiff's motion to strike. Upon 
consideration of the motions, the memoranda filed by the parties, 
the oral arguments of counsel, and the entire record, for the 
reasons set forth below, plaintiff's motions are denied and
defendants* motion is granted.

Plaintiff, a black male, filed this action against three 
officials of the District of Columbia Superior Court system to 
redress alleged employment discrimination based on sex and race. 
Plaintiff occupied various positions in the District of Columbia 
Court system since September 1965. On September 7, 1976, plain­
tiff was notified that he would be terminated from employment 
effective October 7, 1976 for."incompetence" and "insubordination". 
On September 28, 1976, plaintiff appealed administratively. An 
Appeals Board was convened, held a hearing, and on November 15, 
1977, sustained plaintiff's dismissal.

In the instant motion, plaintiff alleges that he was _ 
terminated in violation of due process: The D.C. Superior Court
violated its own established rules governing plaintiff's dismissal 
in that the charges contained in the September 7, 1976 "Notice 
of Proposed Adverse Action" (September 7, 1976 notice) were not 
sufficiently specific to enable plaintiff to respond meaningfully.
The Court disagrees.



The Penalty and Adverse Action Guidelines of the
Superior Court establish procedures governing notice of termina­
tion of permanent employees who are not serving a probationary 
or trial period. Section III A(l) of those guidelines provides 
that notice to an employee of proposed adverse action must:

a. state the reasons, in detail, for the 
proposed action.

d. identify the person to whom the reply 
must be made and of the time limit.

e. inform the employee where he may review 
the material on which the notice is 
based and the amount of official time he may have to review the material and 
prepare his answer to the charges.

The allegations of "incompetence" and "insubordination" 
appearing in the September 7, 1976 notice were supported adequately
in the accompanying text. In any event, the Court does not read

each other. Accordingly, the reasons for the proposed action, 
required by § III A(l)a, may be supplemented by "inform[ing] the 
employee where he may review the material on which the [proposed 
action set forth in the] notice is based." S III A(l)e. The 
September 7, 1976 notice indicated, inter alia, that Mr. Booth 
would have custody of "any pertinent material and documentation 
concerning this action," (September 7, 1976 notice at p.2), if 
plaintiff wished to review it. The Court has reviewed the "per­
tinent material and documentation" as background material in aid 
of its inquiry regarding the adequacy of the September 7, 1976 
notice. -The Court has found it helpful in placing the terms of 
the notice in the proper context. Accordingly, plaintiff's motion 
to strike is denied. Plaintiff's arguments that he was not 
sufficiently informed of the charges against him to permit a 
meaningful response are without merit.

The Appeals Committee sustained plaintiff’s termination 
on Counts 7 and 9 as they delineated the charges contained in the

eac - —  je guidelines in isolation, but in conjunction with

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September 7, 1976 notice. Count 7 concerns plaintiff's refusal 
to provide to a supervisor the results of a survey after a direct 
request to do so. This "charge" is sufficiently specific. There 
was only one survey. The Court has reviewed the interdepartmental 
correspondence regarding this charge.

Count 9 concerned plaintiff's alleged "outside interests". 
Plaintiff is a tennis instructor. Management maintains that he 
persistently devoted an impermissible portion of time and energy 
to his tennis school during his working hours at the D.C. Superior 
Court. His tennis business card listed his telephone number at 
the D.C. Superior Court, he was observed to be involved in acti­
vities related to his tennis business frequently, and his counsel 
admitted at the May 28, 1981 hearing in this matter that he was 
cognizant that his on-the-job tennis activities displeased manage­
ment. That tennis was the "outside interest" complained of in 
"S B. Insubordination" on p.2 of the September 7, 1976 notice was 
immediately apparent to the Court.

In the context of a removal of a permanent government 
employee like plaintiff, the constitutional inquiry is whether the 
employee is "adequately apprised of what he will be‘~called upon-to __ 
defend against —  and that is the central standard by which notice 
is to be measured." Connelly v. Nitze, 401 F.2d 41j, 424 n.10
.............  t?(D.C. Cir. 1968) . In the circumstances presented herein, the 
Court concludes that this constitutional standard has been complied 
with.

The Court concludes also that the findings of the Appeals 
Committee in affirming plaintiff's termination are supported by 
substantial evidence, and the Court will not disturb them.
Richardson v. Perales, 402 U.S. 387 (1971); Washington Post Co. 
v. District Unemployment Compensation Board, 377 A.2d 486 (D.C. App. 
1977); D.C. Code § 1-1510 (3) (e) (1973).

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I

The remaining arguments are also without merit. An 
appropriate order is entered herewith.

The balance of the case under Title VII shall be pre­
sented for trial.

Dated: June *̂* 1981

Q ■J A t  --------- P 0i JUNE L. GREEN— ' 
Vl.S. District Judge

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