The Federal Circuit has rescued a postal worker from the jaws of removal for violating a “last chance agreement” (LCA) in Gose v. United States Postal Service, C.A.F.C. No. 05-3272 (Precedential), 6/14/06. Concluding that the Merit Systems Protection Board “acted in an arbitrary and capricious manner in affirming the agency’s [removal] action,” the court ordered Gose’s immediate retroactive reinstatement to his position. (Opinion p. 17)
As our HR readers know, it’s not easy to overcome a removal action for a repeat offender who has signed a LCA to save himself from a previous firing. But that is just what Gose’s attorney accomplished before the appeals court. Not a bad day’s work. The following facts are contained in the court’s opinion.
Gose, a City Carrier at the Wright Brothers Branch Post Office in Ohio, previously came close to being fired by the Postal Service back in 2003 when a deciding official found his removal was warranted for failure to observe safety rules and policies. That removal decision built upon several previous suspensions for rules violations. For reasons not apparent and not explained in the court decision, the agency let Gose sign a LCA to avoid removal in 2003. In the LCA Gose pledged to follow all employment rules and agreed that one more violation would result in his removal. (Opinion p. 2)
Not more than 4 months later, the agency once again proposed Gose’s removal for violating the terms of the LCA. That is the action that eventually came before the appeals court. The firing this time revolved around the agency’s rule forbidding employees from drinking “in a public place” while in the USPS uniform. (p. 3) Some 30 people had signed a letter to the Postal Service complaining about Gose drinking at the Kettering, Ohio Veterans of Foreign Wars facility (VFW) while in uniform. “Apparently, the members of the VFW were offended by the sight of someone drinking in uniform.” (p. 4)
Gose freely admitted that he often drank in uniform at the VFW. He argued that he had “limited his after work drinking to a private club.” Since the VFW was not a “public place” within the meaning of the agency rule, he therefore had not violated his LCA and could not be removed. (p. 5)
The agency argued that the VFW was a public place since customers of the agency were present there, and that Gose most certainly did violate its rule: VFW “is a private place for membership, but as far as the Postal Service [is concerned]—as I say, any place…is public.” And, “[postal employees] are always in public” except “when we’re in our own homes.” (pp. 5-6)) The agency asked the Board and then the court to grant deference to its interpretation of its own regulation and sustain Gose’s firing.
The Board sided with the agency. The court sided with Gose. Calling the agency’s interpretation “plainly erroneous,” the court added: “While we need not define its precise contours, we hold that the VFW post is not a public place by any reasonable construction of the postal regulation.” (pp. 15-16)
While the Postal Service remains stuck with Gose, at least the court showed them a way to avoid a repeat of this problem in the future: “If the Postal Service wishes to further restrict drinking by its off-duty uniformed employees, it may promulgate a new regulation.” But be warned, Postal Service, as the court goes on to say, “here we express no view on whether such a regulation would constitute an impermissible intrusion on employees’ privacy interests.” (p. 17)
I’m sure glad we cleared that one up.