attention of the authorities. That factor is missing here because the column was published and circulated to union members and indirectly to Postal Service management. In addition, Gordon's statement about the fabrication was not inherently incredible. It was consistent with his known flamboyance in writing style and personality. Moreover, Gordon was a long-time employee with several awards and commendations for unusual dedication to his job. He was respected in his duties as a union steward and he was entrusted by the Postal Service to the sensitive position of registry clerk, guarding and accounting for valuables sent through the mail.
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.
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 most reasonable. This is a close case. What tips the balance is the precipitous behavior of the Postal Service in a situation that called for a more measured and careful response.
Plaintiffs having met their burden, the Postal Service is entitled to show it would have reached the same decision in the absence of the protected speech. No such showing has been made here. As discussed above, the Court does not dispute the defendant's contention that it could use the protected speech as evidence for unprotected dischargeable conduct. The dispute is with the defendant's assertion that the sole motive for the discharge was Gordon's unprotected conduct. Defendant's Trial Brief at 14. The Court has already found against the Postal Service on this issue, even when the burden of proof was on the plaintiffs.
The Court believes reinstatement is the proper equitable relief to be granted in this case but that full back pay is not appropriate. While the Court earlier held that plaintiffs' interest in free speech was strong enough in relation to the government's interest in this case that discharge based on speech was not appropriate, 598 F. Supp. at 570-72, this did not preclude some lesser form of reasonable discipline. Gordon conceded by his retraction that his statement about the Crane letter was ill-advised. It created a clear implication that postal workers could disclose the contents of mail they had seen at work if it suited their personal advantage. Under these circumstances, an award of back pay would appear to create an inappropriate windfall for plaintiff.
Therefore, it is the Court's view that Gordon should be reinstated to his prior rank but that the Postal Service is entitled to impose some appropriate penalty short of discharge consistent with the agency's established procedures. The parties have already agreed to try to settle the appropriate amount of back pay. Because this entails consideration of technical contract provisions regarding back pay, seniority rights, pension benefits and other benefits, the Court believes that barring agreement by counsel settling the penalty and related adjustments, the appropriate forum for settling these details is not this Court but the established mechanism under the union's contract with the Postal Service. Accordingly, the decision of the appropriate penalty to be imposed on Gordon in the light of this Memorandum, and the adjustments to his pay and benefits in accordance with that penalty, will be remanded for determination by the Postal Service.
Judgment shall be entered for plaintiffs. An appropriate Order is filed herewith.
This matter having come before the Court for resolution on a stipulated record, and the Court having this day filed a Memorandum constituting its findings of fact and conclusions of law, it is hereby
ORDERED that judgment is entered for plaintiffs; and it is further
ORDERED that defendant United States Postal Service is directed within 30 days to reinstate plaintiff Gordon to his prior rank at the time of discharge; and it is further
ORDERED that absent agreement of counsel, the case is remanded to the Postal Service for further proceedings consistent with this Memorandum to determine the appropriate penalty short of discharge and to resolve issues of back pay and benefits consistent with such penalty by appropriate procedures.