Vigil v. Post Office Department of United States, No. 10162.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: LEWIS, JONES and HOLLOWAY, Circuit
• Citation: 406 F.2d 921
• Parties: Ulysses S. VIGIL, Appellant, v. POST OFFICE DEPARTMENT OF the UNITED STATES of America and The United States of America, Appellees.
• Docket Number: No. 10162.
• Decision Date: 17 March 1969

406 F.2d 921 (1969)

Ulysses S. VIGIL, Appellant,
v.
POST OFFICE DEPARTMENT OF the UNITED STATES of America and
The United States of America, Appellees.

No. 10162.

United States Court of Appeals Tenth Circuit.

January 29, 1969.

Rehearing Denied March 17, 1969.

406 F.2d 922

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

406 F.2d 923

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.

...