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AMERICAN POSTAL WORKERS UNION v. USPS

February 28, 1985

AMERICAN POSTAL WORKERS UNION, AFL-CIO, et al., Plaintiffs,
v.
UNITED STATES POSTAL SERVICE, Defendant



The opinion of the court was delivered by: GESELL

 This action by a discharged postal worker and his union seeks reinstatement and other relief on the ground that his discharge violated the First Amendment guarantee of free speech. A number of issues in the case have been resolved on two prior motions for summary judgment. The Court decided, among other things, that the speech of the discharged worker, Joseph Gordon, was constitutionally protected and that, assuming his speech caused the discharge, his interest in the speech outweighed the government's interest in effectively carrying out its duties. American Postal Workers Union v. United States Postal Service, 598 F. Supp. 564, 570-72 (D.D.C. 1984). Thus the remaining issue is whether Gordon's speech was a substantial or motivating factor in the discharge, and if it was, whether the Postal Service would have fired Gordon even in the absence of his protected speech. Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977).

 The Court ordered the case to proceed to trial on this issue. However, in lieu of presenting evidence, the parties stipulated all the underlying facts in the case, relying primarily on the record of an arbitration hearing where it was held that the discharge did not violate the union contract. *fn1"

 The Court has considered the stipulation of facts, the transcript of the arbitration hearing, and the entire record herein. This Memorandum constitutes its findings of fact and conclusions of law.

 The essential facts of Gordon's speech and the circumstances leading to his discharge are recounted at 598 F. Supp. at 566-67 and need not be reiterated in detail here. Suffice it to note that in a constitutionally protected column Gordon wrote for his union newspaper, Gordon purported to reveal conduct on the job that, if it had in fact occurred, he and his union admit would constitute a dischargeable offense. The conduct was reading a piece of mail while sorting mail and disclosing its contents. However, Gordon and his union maintain that the conduct described in the column did not occur and that the column was a fabrication for purposes of "literary license."

 The Postal Service has maintained consistently that it fired Gordon not for his speech but for the conduct revealed by his speech. The decision to fire Gordon was made by Howard Byrne, director of labor relations at the Royal Oak, Mich., post office. *fn2" Byrne was told of the column by the postmaster and asked Charlene Bonds, Gordon's general supervisor, to investigate. When Bonds brought the apparent violation to Gordon's attention, Gordon told her that the piece of mail he discussed in his column, a fund-raising letter on behalf of the National Right to Work Committee by Congressman Phillip Crane, came to his attention outside his job from a friend who had seen the letter. He said he fabricated the story about finding the letter at work to dramatize the irony of unionized postal workers sorting mail for an anti-union organization. Bonds obtained a written statement from Gordon to the same effect. *fn3" Gordon sent a brief retraction to be published in the next issue of the union newspaper, but his discharge preceded publication.

 Bonds promptly wrote a report to Byrne recounting her meeting with Gordon and attaching a copy of his statement. However, she made no recommendation and did not say whether she believed the column or Gordon's later statement. Upon receipt Byrne immediately drafted the letter of discharge. The only facts before him at the time of this decision were the newspaper column itself and Gordon's written statement contradicting the column. The discharge notice stated that Gordon was being fired for violating the prohibition in the Domestic Mail Manual on "reading, divulging, or disclosing of the contents of mail," a serious infraction even where as here third-class mail is involved.

 At the first stage of the subsequent grievance proceeding on the discharge, supervisor Linda Dunlap asked Gordon if he could produce his friend who had seen the Crane letter to corroborate Gordon's story. Gordon told her the friend "did not want to get involved." *fn4" The friend later testified at the arbitration hearing, giving an account consistent with Gordon's. Other testimony at the arbitration hearing from Byrne and other supervisors indicated that they had no animosity toward him for his activities as a shop steward and editor of the local union's newspaper and that Gordon had a "very high or good" reputation as a steward. *fn5"

 The Court is not required to decide whether Gordon read a piece of mail on duty and disclosed its contents in violation of postal regulations. The issue that must be resolved is the state of mind of Gordon's supervisors at the time they fired him. There were two possible reasons for discharging Gordon, one permissible and one impermissible. The permissible reason was that he had violated postal regulations by reading a piece of mail on the job and disclosing its contents. The impermissible reason was that he had exercised his speech rights and in so doing had caused his supervisors to retaliate.

 Thus, when the two pieces of evidence before Byrne are juxtaposed with what was known at the time about Gordon's character, the Court believes that a reasonable decision-maker would have found it impossible to come to a reasoned decision as to which version of events should be accepted.

 To avoid basing a decision on the impermissible ground of punishing protected speech, a reasonable decision-maker was obligated at this point to investigate further to obtain sufficient evidence to support a finding that violation of postal regulations had occurred. Because Byrne did not do so but proceeded precipitously with the discharge, Byrne necessarily was substantially motivated by Gordon's protected speech.

 This improper motivation was not cured in the subsequent grievance process. While Gordon at one point declined to name the friend who had seen the Crane letter, he was never pressed on the point and he did produce the man at the arbitration hearing. The Postal Service did find that Gordon had worked third-class mail for a 45-minute period and a 90-minute period during the time that the Crane letter may have been processed by the Royal Oak post office, but these brief stints did not render it substantially more likely that he had seen the Crane letter on the job. The lack of evidence supporting the discharge on the permissible ground was still apparent: the arbitrator himself failed to decide whether Gordon had in fact violated the regulations.

 Plaintiffs of course have the burden of proof of showing improper motivation for the discharge. *fn6" There is no direct evidence of improper motivation, but that is often the case when one is attempting to show that a stated and permissible ground for a decision is pretextual, or at least that it was fatally mixed with an impermissible ground. In the absence of direct evidence, plaintiffs in such cases can meet their burden by circumstantial evidence. Clark v. Library of Congress, 242 U.S. App. D.C. 241, 750 F.2d 89, 101-02 (D.C. Cir. 1984). Courts are required to consider the possible inferences from a set of facts and to draw those inferences that seem ...


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