Marsden v. United States Postal Service, 4-74-Civ. 426.
| Decision Date | 17 October 1974 |
| Docket Number | No. 4-74-Civ. 426.,4-74-Civ. 426. |
| Parties | Loren L. MARSDEN, Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant. |
| Court | U.S. District Court — District of Minnesota |
Paul A. Skjervold, Minneapolis, Minn., for plaintiff.
Donald F. Paar, Asst. U. S. Atty., Minneapolis, Minn., R. Richard Froelke, Regional Labor Counsel, Labor Law Div., U. S. Postal Service, Chicago, Ill., for defendant.
This motion raises questions concerning the due process rights available to Postal Service career employees under the suspension and discharge procedures of the United States Postal Service.
The plaintiff Loren L. Marsden was appointed Postmaster for the City of St. James, Minnestota, on April 14, 1961, and served in that position continuously until May 29, 1974. During the month of March 1974 Marsden, as Postmaster, entered into a transaction with the South Central Electric Association to redeem certain old postal stock owned by the local REA Association. Marsden, along with several employees of the St. James Post Office, counted this stock and determined its value. Marsden proceeded to procure 7,000 8-cent postcards, 6 ten dollar coils of 10-cent stamps and $5.38 cash, and took them to the Association's office on March 19, 1974. Mr. John A. Jackson, office manager of the Association, told Marsden that the Association did not use stamps. Therefore, Marsden decided he would redeem these stamps and deliver $60.00 in cash to the Association.
Marsden sold these 6 ten dollar coils of 10-cent stamps to the clerks in the Post Office at St. James during the last two weeks of March 1974. This cash was left by Marsden in his desk drawer at the Post Office until discovered by two Postal Inspectors making a routine audit on May 21, 1974. Marsden asserts by affidavit that this money was not delivered to its rightful owner, the Association, through inadvertence and because of poor health. The Postal Service contends that Marsden converted the value of these stamps for his personal use. The $60.00 cash was subsequently delivered to the Association office on June 3, 1974.
On Tuesday, May 28, 1974, J. Earl Holmes, the SCF Manager-Postmaster of Mankato, Minnesota, issued a Notice of Placement in Off-Duty Status to Marsden. This notice is set forth in its entirety in the footnote below.1 This notice was issued under the emergency procedure section of the Labor-Management Relations: Grievance and Appeal Procedure § 444.33, and suspended Marsden from his position effective 24 hours after receipt of the notice.
On June 8, 1974, Holmes issued an advance written notice proposing that Marsden be removed from the Postal Service. This notice stated:
"This action is being taken because there is reasonable cause to believe that you have committed a crime for which a sentence of imprisonment may be imposed."
This notice also informed Marsden of his right to review the material relied on to support his dismissal and of his right to answer this notice within five days.
On June 21, 1974, Marsden and his counsel appeared before Holmes and responded to the allegations made in the letter of June 8. Thereafter Holmes issued a final decision letter on July 3, 1974, terminating Marsden's employment with the Postal Service as of July 8, 1974. This decision letter states:
This letter also gave notice of Marsden's right to appeal and the procedures that should be followed in making an appeal.
Marsden filed an appeal with the Minneapolis, St. Paul District Manager on July 11, 1974. He also, through counsel, offered to accept a 14 or 21 day suspension without pay upon his reinstatement as Postmaster. This offer of settlement was apparently motivated by Holmes' reference to settlement in his final decision letter of July 3, 1974. Evidence presently before the Court does not indicate any Postal Service response to this offer.
An appeal hearing was scheduled for August 2, 1974. However, it appears there was a heated exchange between the Postal Service and Marsden's counsel over whether a Court Reporter brought by Marsden's counsel would be allowed to record the hearing on that day and the hearing was postponed.
A subsequent hearing was scheduled for September 12, 1974, at which time the Postal Service granted Marsden's requests to have an official Court Reporter present, to have the hearing open to the public, and to have a new hearing officer appointed. On September 4, 1974, Marsden's counsel informed the Postal Service that he had filed an action in this Court and that there was no need to go forward with the hearing set for September 12, 1974.
This Court has jurisdiction in this case under 5 U.S.C. §§ 701, 706 for the limited purpose of ascertaining whether the notice afforded the plaintiff of his suspension and subsequent dismissal from the Postal Service was sufficient under the Postal Service's Labor-Management Relations: Grievance and Appeal Procedure, Part 444; and whether those procedures substantially afford a petitioner the statutory guarantees articulated in 5 U.S.C. §§ 1302, 3301, 3302, and 7701 and the procedures set out in 5 U.S.C. § 7512.2
The Court finds that the plaintiff was not afforded a notice of an opportunity to respond to the charges made against him in the Notice of Placement in Off-Duty Status of May 28, 1974. As an additional and alternative ground for ordering plaintiff's reinstatement, pending further agency consideration of the facts surrounding this controversy, the Court finds the use of the 24 hour notice procedure to suspend a career and veterans preference employee on the grounds that there is reasonable cause to believe an employee is guilty of a crime for which a sentence of imprisonment can be imposed violates the statutory guarantees of 5 C.F.R. § 752 and 5 U.S.C. § 7512. Because of the violation of these statutory guarantees the Court finds it unnecessary to reach the constitutional issues raised in this case.
The normal procedure used in taking adverse action against a preference eligible employee is set out in 5 U.S.C. § 7512 and 5 C.F.R. § 752. The Postal Service procedure is set out in its Labor-Management Relations: Grievance and Appeal Procedure, Part 444 (), which is substantially based upon the above cited statute and regulations. However, it is necessary to point out that the Postal Adverse Action Procedure covers all career employees in the Postal Executive Salary Schedule while 5 U.S.C. § 7512 is applicable only to preference eligible employees. Marsden, as a career employee, is entitled to the guarantees of the Postal Adverse Action Procedure and as a veteran is entitled to the guarantees of 5 U.S.C. § 7512 and 5 C.F.R. § 752.
All three of these regulations provide that an employee against whom adverse action is proposed is entitled to at least 30 days advance written notice, a reasonable time for answering the notice personally and in writing and for furnishing affidavits in support of his answer, and a notice of an adverse decision. The exception to this minimum of 30 days advance notice is provided:
". . . when there is reasonable cause to believe him guilty of a crime for which a sentence of imprisonment can be imposed, stating any and all reasons, specifically and in detail, for the proposed action;" 5 U.S.C. § 7512(b)(1).
The Code of Federal Regulations, 5 C.F.R. § 752.202(c)(2), elaborates upon this statutory language. It states under its exception to notice period and opportunity to prepare answer:
"When there is reasonable cause to believe an employee is guilty of a crime for which a sentence of imprisonment can be imposed, the agency is not required to give the employee the full 30 days' advance written notice, but shall give him such less number of days advance notice and opportunity to answer as under the circumstances is reasonable and can be justified."
This section of the Code of Federal Regulations also provides for a suspension during the notice period for emergency cases, 5 C.F.R. § 752.202(e). "Emergency" cases are defined in 5 C.F.R. § 752.202(d):
"When circumstances are such that the retention of an employee in an active duty status in his position may result in damages to Government property or may be detrimental to the interests of the Government or injurious to the employee's fellow workers, or the general public, the agency may temporarily assign him to duties in which the conditions will not exist or place him on leave with his consent."
The suspension during the notice period for "emergency" cases must be preceded by a "written notice at least 24 hours in advance of the effective date of the suspension, . . . ." 5 C.F.R. § 752.202(e)(3).
The procedures detailed in the Postal Adverse Action Procedure further reduce the employee's notice period and opportunity to respond:
Part 444.32(e).
The Postal Service has an additional procedure for use in emergency situations:
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