Vigil v. Post Office Department of United States, 10162.

Decision Date17 March 1969
Docket NumberNo. 10162.,10162.
Citation406 F.2d 921
PartiesUlysses S. VIGIL, Appellant, v. POST OFFICE DEPARTMENT OF the UNITED STATES of America and The United States of America, Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Charles S. Vigil, Denver, Colo., for appellant.

Edwin L. Weisl, Jr., Asst. Atty. Gen., Denver, Colo. (Lawrence M. Henry, U. S. Atty., Denver, Colo., and John C. Eldridge, Robert E. Kopp and Judith S. Seplowitz, Attys., Dept. of Justice, Washington, D. C.) for appellees.

Before LEWIS, JONES* and HOLLOWAY, Circuit Judges.

MARVIN JONES, Senior Judge.

This is an appeal from the United States District Court for the District of Colorado, in which appellees' motion for summary judgment was granted and the action was dismissed, and a motion for new trial was overruled. Appellant is seeking reinstatement and back pay and other relief for alleged wrongful removal from a position as janitor assistant or helper in the United States Post Office Department.

Under the statutes and regulations issued pursuant thereto a Department may discharge an employee for the good of the service, but before doing so charges must be filed, notice must be given with an opportunity to answer, a hearing must be had if demanded in writing and various appeals must be allowed before discharge becomes final. After these steps have been taken the discharged employee may file suit in the United States District Court for a review to determine whether all the statutory and legal requirements have been complied with,1 and whether the action of the Department officials was arbitrary, capricious or not supported by substantial evidence.

Before granting the motion for summary judgment and denying motion for a rehearing, the district judge went into the record thoroughly and heard statements and arguments from representatives of both sides. After reviewing the entire record he found it showed there was substantial compliance by the Post Office Department with the pertinent statutory procedures provided by the Congress to govern dismissal of employees for the good of the service. The court further found that the record failed to show that the action of the Post Office officials was arbitrary or capricious; and further that there was substantial evidence in the record to support the action of dismissal.

The facts as disclosed by the record may be summarized as follows: On June 12, 1965, appellant Ulysses S. Vigil, and a male companion were discovered by two policemen on the back seat of a parked car about 2:30 a. m. The two were arrested and charged with a violation of a Denver city ordinance forbidding any person to commit any indecent or filthy act, or to use abusive language or make any obscene gesture to any other person publicly.2 Vigil pleaded guilty and was fined $50.

Some time later, at the instance of his supervisor, Vigil appeared before a postal inspector, on November 22, 1965, to answer questions about the facts in connection with the arrest by the Denver police on June 12, 1965. The inspector reported that after he had given Vigil appropriate warning that he need not answer, and that whatever he said might be used against him, Vigil confessed, both orally and in writing, that he had engaged in homosexual conduct on June 12, 1965, and on other occasions. The results of this investigation were reported to the Post Office Department officials. Vigil claimed he had been drinking and did not realize what he was doing.

After reviewing the results of the investigation, a letter was sent by the Post Office Department on November 29, 1965, to Ulysses Vigil notifying him that the Department intended to remove him for the good of the service from the position he held, or take other adverse action against him. The letter of notice set out four charges against him, all of which dealt with asserted acts of sexual perversion.

Charge One, upon which his removal was finally based, was as follows:

You are charged with engaging in an act of sexual perversion in that you participated in a homosexual act with another male person, one Jose A. Vigil, at about 2:45 a. m. on June 12, 1965, while parked in his privately-owned vehicle in the 1200 block of 21st Street in Denver, Colorado. As a result of participating in this act, you were arrested by two Denver, Colorado patrolmen and then tried in Denver, Colorado, Police Court on June 12, 1965, at which time, you pleaded guilty to the charge of engaging in a lewd act and were fined in the amount of $50.00.

Appellant Vigil, through his attorney and by affidavit, filed a written answer asserting that due to drunkenness he had no recollection of the occurrence, and that his confession was occasioned by his confusion and failure to understand what was going on, and his failure to understand his constitutional rights. He was informed that after the full 30 days' notice was given in writing he would be removed, effective January 8, 1966. He was advised that he had a right to appeal in writing, and was asked if he desired a hearing.

Given a choice, he chose appeal to the Regional Branch of the Post Office Department, rather than to the Regional Branch of the Civil Service Commission. He also requested a hearing.

Accordingly a hearing, at which Vigil was represented by his attorney, was held on February 2, 1966, before a hearing examiner. The evidence at the hearing was conflicting, the appellant claiming he was drunk at the time of the arrest and did not know what he was doing. The officers who had arrested him on June 12, 1965, testified at the 1966 hearing that while appellant and his companion had been drinking, neither of them was drunk at the time of the arrest, that they could handle themselves without assistance and that both knew what was going on.

The hearing officer prepared a summary of the evidence and statements which he submitted to the director. In addition to the findings of fact, the hearing officer added his conclusion to the effect that Charge One was not sufficiently established, but that Charges Two, Three and Four were clearly established because Vigil had given names, dates, and places where the acts occurred. The recommended conclusions were not a part of the hearing officer's duties under the statutes and regulations.3

Upon review of the hearing officer's findings of fact, the Regional Director found that Charge One was fully sustained by the evidence. He did not sustain Charges Two, Three and Four, since there was no other supporting evidence except the appellant's written confessions as to those charges.

Appeal was then taken to the Board of Appeals and Review, which affirmed the Regional Director's decision. The Board did not consider the other three...

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