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HEANEY, Circuit Judge

Stanley Nathanson, a law school graduate, was until May 12, 1978, employed as an Applications Review Specialist by the United States Army Corps of Engineers in St. Paul, Minnesota. On May 12,1 978, his employment was terminated without a prior hearing on the grounds that he had shown an inability to accept guidance and direction from supervisory personnel, had failed to properly follow administrative guidelines and operating procedures and had demonstrated poor judgment in coordinating his activities with other state and federal agencies.

After an unsuccessful appeal to the Federal Employee Appeals Authority of the United States Civil Service Commission, Nathanson filed this action in the district court alleging (1) that the reasons given for his termination have been made a part of his permanent personnel file and are detrimental to his good name and personal and professional reputation and that he was therefore entitled to a pretermination hearing, and (2) that his termination was in violation of the First Amendment because it was in retaliation for his expression of certain personal views., specifically his support for attempts to enforce the National Environmental Policy Act (NEPA) and the Federal Water Pollution Control Act (FWPCA).

The district court granted defendant's motion for summary judgment, and Nathanson appeals.
 

The First Amendment Claim

In his complaint, Nathanson alleged that his termination was in retaliation for his expression of disagreement with and maintenance of a personal opinion contrary to defendant William D. Parsons, Chief, General Regulatory Branch, Construction Operations Division, St. Paul District, United States Corps of Engineers.

The only evidence presented by either party with respect to the details of the controverted speech and its effect is on Nathanson's response to the Government interrogatories. The general nature of the differences of opinion here was expressed by Nathanson as follows:

"It is, however, common knowledge within the Branch that I personally view NEPA and the Federal water Pollution Control Act (FWPCA) as enacted for the purposes of insuring that environmental interests such as the preservation of aquatic habitat and water quality be given serious consideration in Federal Government action, and that my administrative role as Processor should be to insure that these interests represented by the various coordinating agencies receive full and fair consideration with the interests and that permit decisions for which I am primarily responsible reflect that consideration.

"It is also common knowledge with the Branch that I am personally concerned that we, as an agency, administer the permit program in as timely and uniform a fashion as possible.

Branch Chief Parsons apparently does not share in these political views since he entertains a hostile posture toward our Environmental Branch and the U.S. Fish and Wildlife Service and seems to hold an inconsistent attitude towards projects with similar impacts."

Specific instances of the differing opinions were described by Nathanson:

"I recall two instances in which I expressed an opinion different from Defendant parsons which provided the provocation for his action to terminate my employment.

"During a series of discussions on the need for a Corps of Engineers permit for the Wilkins-Otter Trail Ditch No. 2 Project, Defendant Parsons contended that it was proper for the Corps to enter into a special arrangement with the Engineering firm handling the project which avoided the standard review procedures proscribed by the regulations, while I expressed the opinion that such agency action was contrary to what was expected, to insure careful consideration of the environmental impacts of projects within its jurisdiction. After making my comment, I was excluded from any final discussion on the matter.

"During a series of discussions on the disposition of a permit application by the Metropolitan Airport Commission to construct a storm water treatment system at Twin Cities International Airport, Defendant Parsons contended that it was a "good" project and despite information passed on by the U.S. Fish & Wildlife Service that the Commission had failed to comply with the requirements of another Federal Environmental Agency, while I expressed the opinion that it was ethically improper to proceed with granting the permit when we knew the Commission was in violation of a Federal Law, that we were sworn to uphold the Laws which included the avoidance of any actions which would tend to undermine them, and further that our role as processors required that we reserve judgment until the Public Interest Review has been completed. After making these remarks, the project was transferred to another processor."

The district court held that Nathanson was not terminated in violation of his First Amendment rights. It concluded that Nathanson's maintenance of the political views for which he was allegedly discharged would be likely to interfere with the proper performance of his duties and that the interest of the government in efficient operation outweighed Nathanson's interest in maintaining the views in question. Finally the court concluded that the views in question were not "political" or "personal" speech but constituted speech in furtherance of the proper discharge of Nathanson's duty and therefore were not protected by the First Amendment.

A public employee does not forfeit his protection against governmental abridgment of freedom of speech by virtue of his employment. +++. That protection extends to private expressions to one's employer as well as to public expressions. +++

The free speech rights of public employees are not absolute but must be balanced with the need for orderly and efficient operation of the government agency involved. +++ In Pickering, which dealt with whether a teacher's public statements critical of the School Board were protected by the First Amendment, the Court weighed the need for the maintenance of discipline by immediate superiors or harmony among co-workers; whether plaintiffs employment relationship for which personal loyalty and confidence were necessary to proper functioning; and whether the plaintiff's statements impeded the proper performance of this duties or interfered with the regular operation of the school generally. As the Court pointed out in Givhan v. Western Line Consol. School Dist.

"Although the First Amendment's protection of government employees extends to private as well as public expression, striking the Pickering balance in each context may involve different considerations. . . . Private expression ... may in some situations bring additional factors to the Pickering calculus. When a government employee personally confronts his immediate supervisor, the employing agency's institutional efficiency may be threatened not only by the context of the employee's message but also by the manner, time, and place in which it is delivered.

Once an employee has shown his constitutionally protected speech played a substantial role in the employer's decision to discharge him, the burden is on the employer to show "by a preponderance of the evidence that it would have reached the same decision ... even in the absence of the protected conduct." +++

From these principles, it is clear that Nathanson's right to express his views in question was constitutionally protected, unless his expression of those views hindered the efficient operation of the Corps of Engineers to an extent sufficient to warrant denial of the First Amendment protection. The grant of summary judgment would be appropriate if one of two alternatives were satisfied: (1) if the uncontroverted facts established that Nathanson's expression of his personal views hindered the operation of the Corps of Engineers, or (2) in the absence of such uncontroverted facts, if Nathanson's position were so sensitive that the speech in question could be held as a matter of law to be of such a nature as to hinder the operation of the Corps of Engineers. Neither alternative has been satisfied here and summary judgment was inappropriate.

The uncontroverted facts establish only that Nathanson viewed himself as an advocate for environmental concerns and expressed disagreement with his superior as to the handling of certain matters in relation to those environmental concerns. The Government filed no affidavits dealing with the First Amendment issue when it filed its motion for summary judgment. It is not at all clear from the record that Nathanson's advocacy in any way hindered his performance of his duties. For example, the defendants do not contend that Nathanson refused to carry out an order on the basis of his environmental views or that his expression of his views created dissension or confusion which affected the Corps' work. There is simply no evidence other than Nathanson's description of the speech in controversy showing the effect of Nathanson's expression of views on the operation of the Corps.

The record likewise fails to provide support for the theory that Nathanson's job was so sensitive that the views he expressed would necessarily hinder the functioning of the Corps of Engineers. Nathanson's duties, ..., included the review and evaluation of applications for permits under Sec. 10 of the Rivers and Harbors Act of 1899 and Sec. 404 of the Federal Water Pollution Control Act Amendments of 1972, reviewing and evaluating applications for permits received from government agencies, utility companies, businesses and individuals, determining the laws applicable to permit applications, and maintaining close contact with the Office of Counsel on matters involving questionable interpretation of the laws. It seems clear that Nathanson's duties involved the application of environmental protection laws and that a necessary aspect of those duties would involve the expression of his opinion with respect to the application of those laws.

Summary judgments are an "extreme remedy and one which is not to be entered unless the movant has established his right to a judgment with such clarity as to leave no room for controversy and that the other party is not entitled to recover under any discernible circumstances." +++. This is not such a case.

 
The Due Process Claim

Nathanson alleged in his complaint that the allegations forming the basis for his termination, which were made a permanent part of his federal employment file, were detrimental to his good name and personal and professional reputation, and that he therefore should have been given a hearing to refute those allegations.

This Court noted that the Supreme Court established the rule that:

"a public employee in the context of being ... imposing a stigma on his professional reputation and impairing his ability to find future employment, [is] entitled to notice and a name clearing hearing."

The issue is whether the reasons given for Nathanson's termination impose such a stigma. Those reasons were are follows:

"This action is being taken as a result of your duty performance. It is my judgment that you have failed to demonstrate the necessary qualifications for successful performance in this position. Specifically, you have shown an inability to accept guidance and direction from supervisory personnel, you have failed to properly follow administrative guidelines and operating procedures, and you have demonstrated poor judgment in coordinating your activities with other state and federal agencies."

This court has held that allegations similar to those involved here are not the type of stigmatizing charges which would preclude a person from obtaining future employment. +++, ...The requisite stigma has generally been found in cases involving charges of dishonesty, drug usage, or grave character defects. +++

In light of the case law, the district court properly granted the defendants' motion for summary judgment on this issue. The reasons given for Nathanson's termination were not of the type that would impose a stigma on Nathanson's reputation foreclosing his future employment.

. . .

The grant of summary judgment in favor of defendants on Nathanson's due process claims is affirmed, but the grant of summary judgment with respect to the First Amendment is reversed and the cause is remanded to the district court.