At issue: what is considered a “public place” under postal regulations

The following is an abbreviated version of the case:

On August 25, 2003, the Postal Service issued a proposed removal to Letter Carrier Gary Gose. On September 12, 2003, the deciding official found that removal was warranted. “The official concluded that Gose had “fail[ed] to use [a] satchel in the delivery of the mail” and had therefore failed to “observe our safety rules and policies.” The deciding official also stated that Gose had recently been “present for the service-safety talks concerning this subject” and had “acknowledged that [he] was aware of the requirement to use the satchel.” As evidence of Gose’s apparent propensity for not following instructions, the deciding official cited several suspensions for “Failure to Perform Your Duties in a Conscientious and Effective Manner / Failure to Follow Instructions” and one suspension for “Failure to Perform Your Duties in a Conscientious and Effective Manner / Unauthorized Extension of Lunch.”

As a final resolution of these matters, Gose entered into a Last Chance Agreement (LCA) on October 31, 2003. A key provision of the LCA was that Gose would “comply with all the applicable policies, rules and regulations with regard to his employment as a condition of this last chance agreement. Failure to comply . . . will constitute a basis that will result in Mr. Gose’s removal . . . .”

Gose’s Alleged Violation of the LCA—Drinking “in a public place” While in Uniform.

“On March 29, 2004, Douglas Potter, Customer Service Manager at the Wright Brothers Branch Post Office, proposed to remove Gose for violating the terms of the LCA. Potter wrote that on February 27, 2004, the Post Office had received a customer concern letter regarding Gose’s drinking while in uniform at Veterans of Foreign Wars (”VFW”) Post 9927, Kettering, Ohio. There were thirty signatures on the letter. Apparently, the members of the VFW were offended by the sight of someone drinking in uniform. As one member opined, “Well, I’m retired military. . . . You just don’t drink in uniform in a public place.” The administrative judge (”AJ”) never expressly considered Gose’s argument that the VFW had written the letter to his employer in retaliation for Gose’s complaining about alleged accounting discrepancies in the VFW post’s books. The motives of the VFW, however, are not relevant to this appeal and will not be further considered.”

“Potter stated that Gose’s actions had indeed violated several USPS standards of conduct as expressed in the Employee and Labor Relations Manual (”ELM”). These provisions were (1) § 661.3(f) (engaging in actions “whether or not specifically prohibited by the Code, which might result in or create the appearance of . . . . affecting adversely the confidence of the public in the integrity of the Postal Service”); (2) § 661.53 (engaging in “conduct prejudicial to the Postal Service”); (3) § 661.54 (”drink[ing] intoxicating beverages in a public place while in uniform”);1 and (4) § 666.2 (failing to “conduct [himself] during and outside of working hours in a manner which reflects favorably upon the Postal Service . . . .”).

“Because Gose does not dispute that he drank at the VFW post while in uniform while the LCA was in effect, the dispute in this case centers solely on whether or not the VFW is a “public place,” as that phrase is used in the relevant postal regulation. During the appeal to the MSPB, Ashworth testified before the administrative judge (”AJ”) that to the Postal Service “any place is a public place that we serve. . . . [E]very citizen is a customer of ours.” Ashworth explained that the VFW “is a private place for membership, but as far as the Postal Service [is concerned] – as I say, any place . . . is public.” Similarly, Tod O’Reilly (”O’Reilly”), Manager of Customer Service, testified that “[postal employees] are always in public” except “when we’re in our own homes.”

“Because, according to the Postal Service, a public place exists wherever there is a postal customer, and because by the agency’s own account, “every citizen is [its] customer,” we reach the logical conclusion that, in the agency’s view, a public place exists wherever there is a citizen. This definition would classify as “public places” even employees’ private homes, at least to the extent that the employee is not alone there. In short, the problem with this interpretation is that it effectively reads language out of the regulation. If the agency had wished to promulgate a regulation that prohibited drinking in uniform while “in the presence of others,” it might have done so. However, it did not. Instead, it promulgated a regulation that specifically forbade such activity only “in a public place.” (emphasis added). An agency interpretation that effectively eviscerates regulatory language is per se inconsistent with the regulation and may be accorded no deference.”

“Rejecting the agency’s regulatory construction, we now turn to the meaning of the phrase “in a public place.” 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. If the Postal Service wishes to further restrict drinking by its off-duty uniformed employees, it may promulgate a new regulation. To be clear, here we express no view on whether such a regulation would constitute an impermissible intrusion on employees’ privacy interests.”

“For the reasons stated above, we conclude that the Board acted in an arbitrary and capricious manner in affirming the agency’s action after erroneously deferring to the agency’s unreasonable interpretation of its regulation. Accordingly, Gose is to be immediately reinstated to his position, with back pay and credit, for all purposes, for the period of his improper removal from the Postal Service. We also deem Gose not to have breached the terms of the LCA, such that, inter alia, the agency is obligated to comply with its obligations thereunder, including its obligation to remove “all citable disciplinary actions” in Gose’s record. We remand to the Board for further action consistent with this opinion.”

 Gary Gose vs USPS (PDF)