Grebosz v. UNITED STATES CIV. SERV. COM'N

• Decision Date: 18 June 1979
• Docket Number: No. 78 Civ. 1311 (CHT).,78 Civ. 1311 (CHT).
• Citation: 472 F. Supp. 1081
• Parties: Warren R. GREBOSZ, Plaintiff, v. UNITED STATES CIVIL SERVICE COMMISSION and United States Postal Service, Defendants.
• Court: U.S. District Court — Southern District of New York

472 F. Supp. 1081

Warren R. GREBOSZ, Plaintiff, v. UNITED STATES CIVIL SERVICE COMMISSION and United States Postal Service, Defendants.

No. 78 Civ. 1311 (CHT).

United States District Court, S. D. New York.

June 18, 1979.

McCarthy & Dorfman, Glen Cove, for plaintiff; Martin S. Dorfman, Glen Cove, of counsel.

Robert B. Fiske, Jr., U. S. Atty., S. D. New York, New York City, for defendants; David M. Jones, Asst. U. S. Atty., New York City, of counsel.

Lawrence A. Dinerstein, Senior Asst. Regional Labor Counsel, New York City, for defendants.

OPINION

TENNEY, District Judge.

In this action, Warren R. Grebosz seeks review of an action of the United States Postal Service, affirmed on appeal, discharging him from service as a letter carrier. Both Grebosz and the Government have moved for judgment on the pleadings, Grebosz for reversal of the agency action and the Government for dismissal of the complaint. For the reasons given below, the order of the United States Civil Service Commission ("CSC") affirming Grebosz's discharge is reversed.

Background

On December 2, 1974, Grebosz was arrested and charged with the criminal possession and sale of cocaine. He pleaded guilty to the sale of cocaine and was sentenced to twenty days imprisonment and five years probation. On June 12, 1975, he was arrested and charged with the criminal possession of marijuana, which had been recovered at the time of the first arrest. He pleaded guilty to criminal possession of a controlled substance in the seventh degree, a misdemeanor; he was sentenced to three years probation and fined $250.00. The Postal Service subsequently began removal proceedings based upon the two narcotics charges.¹

Administrative Proceedings

In a letter dated February 14, 1977, the Postal Service notified Grebosz of its proposal to remove him based on the convictions described above.² He answered the notice of proposed removal in person on February 15, 1977 and in writing on March 9, 1977. On March 11, 1977 the Postal Service notified Grebosz of its decision to remove him effective March 18, 1977. Plaintiff subsequently appealed the removal decision to the CSC and, on October 31, 1977, after a hearing held on June 16, 1977, the CSC issued an opinion affirming the agency action. On March 23, 1978 Grebosz commenced this action for review of that decision, and the case subsequently assumed its current posture.

CSC Decision

After looking to the record to determine whether the Postal Service action was arbitrary, capricious, or unreasonable, the CSC upheld the removal as warranted by the charges. In doing so, it made findings under the criteria set out in 5 C.F.R. § 731.202(c) and additional findings. Given seriatim, those findings under the regulation are summarized as follows:

(1) Grebosz's position as a letter carrier is a sensitive one in that he had daily contact with the public and access to the property of the families on his route.

(2) Grebosz's attorney admitted that the felony sale of cocaine and misdemeanor possession of marijuana are serious offenses, under New York law.

(3) Regarding the circumstances of the conduct, three facts were brought out. First, it occurred in his home during nonworking hours, and it did not involve the families on his postal route nor children. Second, although the arrest for possession of marijuana stemmed directly from the arrest for the sale of cocaine, the charges are separate and, accordingly, Grebosz was involved with drugs on two occasions. Third, the quantity of drugs, which has a direct bearing on the seriousness and nature of the crimes, was very small as to the cocaine and substantial as to the marijuana. The amount of cocaine, 0.6 grams, was "enough for one or two people for their own head to get high." Hearing Transcript 62-63 ("Tr."). The marijuana that led to Grebosz's arrest was 3½ pounds.

(4) The conduct for which Grebosz was removed was not recent; it occurred approximately three years before the removal was proposed. The delay in this case does not relate to any unfairness to Grebosz, but only to the question of the seriousness of the conduct as regarded by the Postal Service.

(5) At the time of the conduct, Grebosz was 25 years old and thus fully responsible for his conduct.

(6) His behavior was influenced by his experiences while serving in the United States Navy off the coast of Vietnam. Drug use among men in Vietnam was a significant problem that was widely publicized.

(7) Grebosz has been rehabilitated since his conduct. He was never in trouble at his job or with the law prior to the conduct in question here, and he has been in no trouble since then. The probation officer involved in Grebosz's case submitted a favorable letter to the Postal Service on the latter's behalf. Further support for a finding that he has been rehabilitated may be found from his work record since his arrests and from his fiscal responsibility. As to the latter, his attorney has stated that Grebosz has promptly paid legal fees and has made voluntary support payments to his ex-wife. Finally, support for this finding may be found in the action of Judge Paul T. D'Amaro, Acting Justice of the Supreme Court of New York: the justice issued Grebosz a Certificate of Relief from Disabilities, which relieves him from disabilities and bars to employment in New York State. App. 6-8.

After setting out the parties' arguments, the CSC made four additional findings:

(1) Grebosz had "an unblemished civilian and military record" before his convictions and has had no trouble since those convictions. Id. 9. He had a good Navy record and received the honors that he alleged he received.

(2) He was at worst a good employee and possibly above-average, as indicated by the Branch Manager's testimony that he had considered Grebosz for a Superior Performance Incentive Award because of his job performance. (Three superiors testified on Grebosz's behalf, all favorably.)

(3) His superiors did not consider him a threat to the security of the Postal Service or the general public. The Postal Service permitted him to continue working pending the outcome of the arrests.

(4) Finally, as indicated by his superiors and the many letters received from persons on his mail route, Grebosz's conduct did not directly involve or affect his performance of his duties. Id.

Despite its many findings favorable to Grebosz, the CSC upheld his removal. They based their conclusions on the seriousness of the crimes for which he was convicted, the fact that he was twice involved with drugs, and the Postal Service's responsibility to the public to assure that its employees have a high degree of integrity. Id. 7-8.

Arguments

Grebosz argues in essence that his removal was arbitrary, capricious, or not supported by substantial evidence on the record because nothing in the record will support the conclusion that his discharge will promote the efficiency of the service. He contends that his convictions cannot support his removal because they cannot reasonably be expected to impair either his efficiency or that of the Postal Service. Specifically, he argues that the finding of the CSC that he was rehabilitated at the time of his removal is inconsistent with a conclusion that he threatens either the efficiency or the security of the Postal Service. Finally, he argues that the finding that his many meritorious arguments, as established, cannot overcome the gravity of the charges amounts to an automatic removal and that removal, on these facts, is too harsh a penalty. On the law, Grebosz argues that he was denied equal protection of the law because the Certificate of Relief from Civil Disabilities issued by the New York State Supreme Court was not given full faith and credit; and, secondly, that the above certificate should be recognized under the same policy applicable under the Youth Corrections Act.

The Government responds that the sole issue is whether the Postal Service's action was so lacking in rational support as to be arbitrary or capricious. It suggests that Grebosz's involvement with drugs was greater than suggested in the latter's moving papers. On the law, it relies on the narrow scope of review in employee discharge cases and contends that in cases involving criminal conduct the courts have repeatedly upheld dismissals as promoting the efficiency of the service. It contends that the equal protection argument is frivolous, arguing that the certificate on its face does not apply to the employment decision in this case and that, even were it applicable, it could not bind the Postal Service's hands from regulating its own employees.

Discussion

The standard of review in these employee discharge cases is limited. The agency action is subject to judicial review only to determine whether the agency complied with applicable procedures and did not act arbitrarily or capriciously. McTiernan v. Gronouski, 337 F.2d 31 (2d Cir. 1964). Grebosz's reliance on a substantial evidence standard, although appropriate in most circuits, see generally Phillips v. Bergland, 586 F.2d 1007, 1012 (4th Cir. 1978) (citations to circuits using a substantial evidence standard and to those using a rational basis standard), appears to be misplaced in the Second Circuit. The Government's statement of the standard as whether the agency decision "was so lacking in rational support as to be arbitrary and capricious" appears to be a more accurate summary of Second Circuit authority. However, the Court need not address whether, when confronted with the issue squarely and in view of the broader review undertaken elsewhere, the Second Circuit would adopt a different standard; the agency action here must be reversed under either standard.³

5 U.S.C. § 7512 allows an agency to "take adverse action against a preference eligible employee . . . only for such cause as will promote the efficiency of the service." The Postal Service Code of Ethical Conduct, § 442.253 & .255 ("Ethical Code"), provides...