Conrad v. United States Postal Serv.

• Decision Date: 02 July 1980
• Docket Number: No. C-79-382-G.,C-79-382-G.
• Citation: 494 F. Supp. 761
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Ewing CONRAD, James B. Sturdavant, Jr., on behalf of themselves and all others similarly situated; and the National Post Office Mail Handlers, Local No. 305, Liuna, AFL-CIO, Plaintiffs, v. UNITED STATES POSTAL SERVICE, William Bolger, Postmaster General; Donald W. Meyers, District Manager, Carolina District; Robert L. Hodges, Sectional Center Postmaster, Greensboro, North Carolina; Nicholas A. Carr, Bulk Mail Center Manager, Greensboro, North Carolina, Defendants.

494 F. Supp. 761

Ewing CONRAD, James B. Sturdavant, Jr., on behalf of themselves and all others similarly situated; and the National Post Office Mail Handlers, Local No. 305, Liuna, AFL-CIO, Plaintiffs, v. UNITED STATES POSTAL SERVICE, William Bolger, Postmaster General; Donald W. Meyers, District Manager, Carolina District; Robert L. Hodges, Sectional Center Postmaster, Greensboro, North Carolina; Nicholas A. Carr, Bulk Mail Center Manager, Greensboro, North Carolina, Defendants.

No. C-79-382-G.

United States District Court, M. D. North Carolina, Greensboro Division.

July 2, 1980.

William G. Pfefferkorn, Jim D. Cooley, J. Wilson Parker, Robert M. Elliot of Pfefferkorn & Cooley, Winston-Salem, N. C., for plaintiffs.

H. M. Michaux, Jr., U. S. Atty., Greensboro, N. C., John C. Oldenburg, U. S. Postal Service, Memphis, Tenn., for defendants.

MEMORANDUM OPINION

HIRAM H. WARD, District Judge.

This matter came before the Court on November 28, 1979, for a hearing concerning plaintiffs' Motion for Preliminary Injunction, Rule 65, Fed.R.Civ.P., and defendants' Motion to Dismiss, Rule 12(b)(1) & (6), Fed.R.Civ.P. At the hearing, plaintiffs' counsel indicated that plaintiffs did not wish to pursue their preliminary injunction motion at that time. Therefore, the Court only heard arguments concerning the motion to dismiss. Having thoroughly considered the pleadings, briefs, and arguments of counsel, the Court has decided to grant that motion.

The individual plaintiffs, Ewing M. Conrad and James B. Sturdavant, Jr., are disabled veterans. 5 U.S.C. § 2108(2). As disabled veterans, they are classified as preference eligibles by 5 U.S.C. § 2108 (3)(C). The plaintiff National Post Office Mail Handlers, Local 305 (Local 305), represents certain employees of the United States Postal Service (Postal Service), including Conrad and Sturdavant, in four states and the District of Columbia. Those three plaintiffs¹ have sued the Postal Service and several of its officials. They assert that the Court has jurisdiction pursuant to 39 U.S.C. § 409 and 28 U.S.C. § 1331.

Conrad was employed by the Postal Service until he underwent knee surgery for a service-related injury. His surgery required a year-long recovery period after which he attempted to return to work, possibly to a physically less-demanding position. The Postal Service refused to allow him to return and finally discharged him. Sturdavant is currently employed by the Postal Service. However, the Postal Service suspended him for seven days for excessive absences allegedly due to extensive treatment for service-related knee injuries. Conrad and Sturdavant contend that the Postal Service is required to follow a policy which would allow unlimited leaves of absence to disabled veterans who require treatment of service-related injuries. They complain that the Postal Service has violated that policy by disciplining them. Local 305 complains that other of its members have received or will receive dismissals or suspensions because of absences for necessary treatment.²

Effective July 1971, Congress created the new Postal Service, an independent establishment of the executive branch. 39 U.S.C. § 201. As a result, postal employees became members of the postal career service, a part of the civil service. 39 U.S.C. § 1001(b). They are no longer members of the competitive civil service to which most federal employees belong. According to 39 U.S.C. § 1003(b), the Postal Service is to "follow an employment policy designed, without compromising the policy of 39 U.S.C. § 101(a), to extend opportunity to the disadvantaged and the handicapped." Section 101(a) basically defines the Postal Service's function and directs that "it shall provide prompt, reliable, and efficient services to patrons in all areas and shall render postal services to all communities." Before establishment of the new Postal Service, preference eligibles such as Conrad and Sturdavant, as members of the competitive civil service, were entitled to certain preferences in hiring, retention and reinstatement. 5 U.S.C. §§ 3309-18. Although postal employees are no longer members of the competitive civil service, the preference provisions continue to apply to them. 39 U.S.C. § 1005(a)(2). One of those provisions directs the waiver of physical requirements for a position which a preference eligible seeks if he is physically able to perform the duties of the position. 5 U.S.C. § 3312.³ Plaintiffs contend that failure to grant disabled veterans unlimited leave for medical treatment of service-related injuries violates the Fifth Amendment, the 39 U.S.C. § 1003(b) policy favoring the handicapped, and the 5 U.S.C. § 3312 waiver of physical requirements provision, as well as a 1930 executive order and a Postal Service regulation governing medical leave. The Court will discuss the bases of plaintiffs' claims in that order.

Fifth Amendment

Plaintiffs' pleadings are somewhat unclear as to whether they claim the Postal Service has violated their substantive due process rights, procedural due process rights or both. Their complaint appears to refer to substantive rights by alleging that the existing Postal Service medical leave policy for disabled veterans violates the Fifth Amendment. Complaint ¶¶ 18 & 20 (May 24, 1979). Plaintiffs' preliminary injunction brief makes the argument that suspension or termination of disabled veterans for medical absences is arbitrary and capricious and violates substantive due process. Brief in Support of Plaintiffs' Motion for Preliminary Injunction p. 5 (May 24, 1979). However, in their brief in response to defendants' motion, plaintiffs argue that postal employees, such as Sturdavant, who are suspended for fourteen days or less are deprived of a property interest without procedural due process if they have no right to an administrative hearing in review of their suspensions. Response to Motion to Dismiss and Supporting Memorandum of Law pp. 4-5 (October 1, 1979). Because a complaint may not be dismissed for failure to state a claim for relief "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957), the Court will consider both the substantive and procedural due process issues.

Plaintiffs apparently contend they have stated a cause of action for violation of their substantive due process rights under cases such as Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) and Davis v. Passman, 442 U.S. 288, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979). Their allegations, however, do not establish such a Fifth Amendment deprivation. The Postal Service has a legitimate interest in the efficiency of its operations. 39 U.S.C. § 101. Mandatory attendance standards reasonably serve that interest; therefore, discipline imposed for failure to meet those standards is not arbitrary and capricious. Plaintiffs are not members of a suspect class, nor have they been deprived of a fundamental right. Thus, as a matter of law, the actions taken against them were not constitutionally impermissible.

Plaintiffs' contention concerning procedural due process applies only to disabled veterans in the situation in which Sturdavant finds himself. Article VII of the National Agreement between the Postal Service and the National Post Office Mail-handlers Union states that "no employee may be disciplined or discharged except for just cause . . .." Affidavit of Ross Garulski, Exhibit PS-1 (August 9, 1979) (National Agreement). This provision gives covered postal employees a protectable property interest in their jobs. Arnett v. Kennedy, 416 U.S. 134, 151-52, 94 S.Ct. 1633, 1642-43, 40 L.Ed.2d 15, 31-32 (1974); Board of Regents v. Roth, 408 U.S. 564, 577-79, 92 S.Ct. 2701, 2709-10, 33 L.Ed.2d 548, 560-61 (1972). Plaintiffs argue, therefore, that preference eligibles who are suspended for fourteen days or less are deprived of procedural due process if, as defendants contend, their only recourse is to pursue the grievance-arbitration procedure of the applicable collective bargaining agreement.

When Congress created the new Postal Service, by adopting the Postal Reorganization Act,⁴ it basically provided for two types of procedures for resolution of disputes over disciplinary actions against postal employees. Abbruzzese v. Berzak, 601 F.2d 107, 108-09 & nn. 3 & 4 (3d Cir. 1979). One procedure involves an appeal to the Merit Systems Protection Board, 5 U.S.C. § 7701 et seq.; the other involves the filing of a grievance pursuant to the grievance-arbitration procedure of an applicable collective bargaining agreement, 39 U.S.C. § 1206(b).

Under 39 U.S.C. § 1005(a)(2), the provisions of Title 5 relating to preference eligibles are made applicable to employees of the Postal Service as if they were still part of the competitive service. Therefore, 5 U.S.C. § 7511 et seq., governing adverse actions, applies to preference eligibles such as Conrad who are discharged. Under those provisions an affected employee is entitled to certain procedural protections and adverse action may be taken against him only under a "for cause" standard. 5 U.S.C. § 7513. An employee against whom such an action is taken may appeal to the Merit Systems Protection Board (MSPB). 5 U.S.C. § 7513(d). However, an employee such as Sturdavant, who is suspended for fourteen days or less, has no rights under these provisions. 5 U.S.C. § 7512. Thus, the first procedure mentioned above for resolving disputes is not available to preference eligibles in all circumstances.

The Postal Service is directed by 39 U.S.C. § 1001(b) to "establish procedures, in accordance with Title 39, . . . to assure its officers and employees full protection of their employment rights by guaranteeing them an opportunity for a fair hearing on adverse actions, with representatives of their own choosing." Also, 39 U.S.C....