Gose v. U.S. Postal Service

• Decision Date: 14 June 2006
• Docket Number: No. 05-3272.,05-3272.
• Parties: Gary GOSE, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 831

451 F.3d 831

Gary GOSE, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent.

No. 05-3272.

United States Court of Appeals, Federal Circuit.

June 14, 2006.

COPYRIGHT MATERIAL OMITTED

Michael Allen McNew, Doll, Jansen & Ford, of Dayton, Ohio, for petitioner.

David C. Belt, Appellate Counsel, United States Postal Service, of Washington, DC, for respondent. With him on the brief was Lori J. Dym, Chief Counsel, Appellate Litigation. Also on the brief was Peter D. Keisler, Assistant Attorney General, Civil Division. Of counsel were David M. Cohen, Director; Todd M. Hughes, Assistant Director; and James W. Poirier, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC.

Before, RADER, SCHALL, and GAJARSA, Circuit Judges.

GAJARSA, Circuit Judge.

This is an appeal from the Merit System Protection Board ("MSPB" or "Board"), which upheld the removal of petitioner Gary Gose ("Gose") from his position as City Carrier with the United States Postal Service ("USPS" or "the agency"), for allegedly violating an agency regulation while working pursuant to the terms of a last chance agreement ("LCA"). This court has jurisdiction "of an appeal from a final order or final decision of the Merit Systems Protection Board, pursuant to sections 7703(b)(1) and 7703(d) of title 5[.]" 28 U.S.C. § 1295. For the reasons discussed below, we reverse the decision of the Board and remand for further proceedings consistent with this opinion.

I. BACKGROUND

A. Conduct Leading to the Last Chance Agreement

On August 25, 2003, the agency proposed Gose's removal, and on September 12, 2003, the deciding official found that removal was warranted. The official concluded that Gose had "fail[ed] to use [a] satchel in the delivery of the mail" and had therefore failed to "observe our safety rules and policies." The deciding official also stated that Gose had recently been "present for the service-safety talks concerning this subject" and had "acknowledged that [he] was aware of the requirement to use the satchel." As evidence of Gose's apparent propensity for not following instructions, the deciding official cited several suspensions for "Failure to Perform Your Duties in a Conscientious and Effective Manner / Failure to Follow Instructions" and one suspension for "Failure to Perform Your Duties in a Conscientious and Effective Manner / Unauthorized Extension of Lunch."

As a final resolution of these matters, Gose entered into a LCA with the agency on October 31, 2003. A key provision of the LCA was that Gose would "comply with all the applicable policies, rules and regulations with regard to his employment as a condition of this last chance agreement. Failure to comply . . . will constitute a basis that will result in Mr. Gose's removal. . . ."

B. Gose's Alleged Violation of the LCA—Drinking "in a public place" While in Uniform.

On March 29, 2004, Douglas Potter ("Potter"), Customer Service Manager at the Wright Brothers Branch Post Office, proposed to remove Gose for violating the terms of the LCA. Potter wrote that on February 27, 2004, the Post Office had received a customer concern letter regarding Gose's drinking while in uniform at Veterans of Foreign Wars ("VFW") Post 9927, Kettering, Ohio. There were thirty signatures on the letter. Apparently, the members of the VFW were offended by the sight of someone drinking in uniform. As one member opined, "Well, I'm retired military. . . . You just don't drink in uniform in a public place." The administrative judge ("AJ") never expressly considered Gose's argument that the VFW had written the letter to his employer in retaliation for Gose's complaining about alleged accounting discrepancies in the VFW post's books. The motives of the VFW, however, are not relevant to this appeal and will not be further considered.

The underlying facts were never in dispute. In fact, Gose estimated that he had consumed three thousand mixed drinks at the VFW since 1988 and acknowledged that he often drank there while wearing his uniform. Rather, the dispute centered on whether Gose's actions had violated any postal "policy, rule or regulation." If so, then according to the terms of the LCA, Gose's removal would be warranted.

Potter stated that Gose's actions had indeed violated several USPS standards of conduct as expressed in the Employee and Labor Relations Manual ("ELM"). These provisions were (1) § 661.3(f) (engaging in actions "whether or not specifically prohibited by the Code, which might result in or create the appearance of . . . . affecting adversely the confidence of the public in the integrity of the Postal Service"); (2) § 661.53 (engaging in "conduct prejudicial to the Postal Service"); (3) § 661.54 ("drink[ing] intoxicating beverages in a public place while in uniform");¹ and (4) § 666.2 (failing to "conduct [himself] during and outside of working hours in a manner which reflects favorably upon the Postal Service . . . .").

The deciding official, David Ashworth ("Ashworth"), Postmaster of Dayton, Ohio, agreed with the proposal to remove Gose. In his letter of removal, Ashworth stated that he believed that Gose's "acknowledgements and admissions [of the underlying facts] in this matter demonstrate[d] that `Just Cause' existed for [his] removal." He further stated that Gose's "actions in not observing Postal Service rules and regulations . . . violates the employee standards of conduct for employees as expressed in the Employee and Labor Relations Manual (ELM) that forbid your drinking of intoxicating beverages in a public place while in uniform." The deciding official found that Gose's conduct was prejudicial to the Postal Service and served to undermine public confidence in the Service's integrity "as evidenced by the corroborated initial customer complaint."

Ashworth also stated that he had reviewed and considered the Douglas factors,² including: (1) the seriousness of the offense and its prejudicial effect upon the agency's mission; (2) that other employees had received removal notices for similar offenses; (3) an absence of mitigating circumstances, including a lack of remorse;³ (4) that Gose was employed pursuant to a voluntary LCA, and (5) that Gose could not be rehabilitated as an employee. He also cited the LCA, which clearly provided for removal as the next step of discipline.

C. Board Review

Gose appealed his removal to the Board, arguing that "[t]he only regulation which the Agency has heretofore cited to and alleged that the Appellant has violated is Section 661.54 Employee Relations — Conduct Use of Intoxicating Beverages." He further argued that he had not violated the provision on drinking in a public place while in uniform because "he ha[d] limited his after work drinking to a private club. . . ." (emphasis added). Gose argued that "[t]he Agency fails to acknowledge a distinction between public and private places, yet the rule or regulation with which Appellant is charged, specifically limits itself to `public place.'"

Because Gose does not dispute that he drank at the VFW post while in uniform while the LCA was in effect, the dispute in this case centers solely on whether or not the VFW is a "public place," as that phrase is used in the relevant postal regulation. During the appeal to the MSPB, Ashworth testified before the administrative judge ("AJ") that to the Postal Service "any place is a public place that we serve. . . . [E]very citizen is a customer of ours." Ashworth explained that the VFW "is a private place for membership, but as far as the Postal Service [is concerned] — as I say, any place . . . is public." Similarly, Tod O'Reilly ("O'Reilly"), Manager of Customer Service, testified that "[postal employees] are always in public" except "when we're in our own homes."

The AJ rejected Gose's argument that the VFW is not a public place, noting the testimony of O'Reilly and Ashworth that "a public place is anywhere that Postal Service customers can be found." The AJ adopted this definition, stating that "[t]he intent of the Postal Service policy is to prevent its uniformed employees from drinking intoxicating beverages in public view, a circumstance clearly present in this case based on complaints from members of the public regarding his conduct." The AJ concluded that "[b]ecause numerous Postal Service customers complained about the appellant's conduct, I find the conduct occurred in public, not in private." The Board subsequently rejected Gose's petition for review, and the decision of the AJ became final.

II. DISCUSSION

Gose argues that the Board committed several errors, including in its interpretation of the Postal Service regulation that prohibits employees from drinking "in a public place" while in uniform. Because we hold that the Board did err in this regard, we reverse the Board's decision without consideration of Gose's other assignments of error.

A. Standard of Review

Here we are reviewing the Board's construction of a regulation, including its decision to defer to the interpretation proffered by the agency. See Douglas v. Veterans Admin., 5 MSPB 313, 5 M.S.P.R. 280, 287 (1981) ("[I]t is the final orders or decisions of the Board which constitute the acts of `the Government' for purposes of judicial review."). In so doing, we note as an initial matter that provisions of the ELM do in fact constitute "regulations." See 39 U.S.C. § 401 ("The Postal Service shall have the following general powers. . . . (2) to adopt, amend, and repeal such rules and regulations as it deems necessary to accomplish the objectives of this title[.]"); 39 C.F.R. § 211.2(a)(2) (1988) (providing that the ELM is a part of the USPS regulations); see also Wood v. Merit Sys. Prot. Bd., 938 F.2d 1280, 1282 (Fed.Cir.1991).

"This court must affirm the Board's decision unless it is: `(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures...