The U.S. Court of Appeals for the Federal Circuit upheld the removal from federal service of a postal carrier who appeared to buy marijuana from the postal truck of a co-worker while on duty.
The employee began working for the U.S. Postal Service in 1989. At the time of his removal, he worked as a city carrier at the Fort Dearborn Station in Chicago. His removal was the result of a Postal Service Office of Inspector General (OIG) investigation revealing that a co-worker, another letter carrier, was selling marijuana from a Postal Service vehicle.
Surveillance video of the co-worker's assigned Postal Service vehicle showed the employee and several other Postal Service employees engaged in alleged narcotics transactions with the co-worker while on duty. The co-worker later admitted to selling marijuana from his Postal Service vehicle. Six other letter carriers who were observed in the surveillance video admitted to purchasing marijuana from him. The employee denied purchasing marijuana from him while on duty.
The surveillance video of the co-worker's Postal Service vehicle showed two interactions between the co-worker and the employee. The first was filmed while the employee was on duty and in uniform. The video showed the co-worker placing an item in the cup holder of his Postal Service vehicle. The employee entered the vehicle 20 minutes later and took what appeared to be money from his pocket and handed it to the co-worker, who pointed to the cup holder in which he previously placed the unknown item. The employee removed the item, which appeared to be in a small plastic bag, and left the vehicle. After the employee's departure, the co-worker counted what appeared to be a sum of money.
The second interaction again occurred while the employee was on duty and in uniform. The employee and the co-worker were inside the co-worker's Postal Service vehicle, smoking what appeared to be a rolled cigar while the co-worker was driving. The employee exited the vehicle, leaving behind his priority mail parcels and scanner.
OIG issued a report of its investigation, which summarized the co-worker's interactions with several Postal Service workers, including the employee. Subsequently, the Postal Service performed two predisciplinary interviews of the employee in which the worker invoked his Fifth Amendment right to remain silent and declined to answer any questions.
In December 2017, the customer services manager issued a notice of proposed removal for the employee for "Unacceptable Conduct/Purchase and/or Possession of an Illegal Drug While on the Clock and in Uniform." Following receipt of the notice of proposed removal, the employee met with the deciding official. During the meeting with the deciding official, the employee stated that he was "so embarrassed" and really wanted to apologize for "this little mistake."
In February 2018, the deciding official issued a final decision sustaining the unacceptable conduct charge and removing the employee from federal service. Five of the seven other employees who had been removed for purchasing marijuana from the co-worker appealed their terminations through grievance arbitration. The arbitrators mitigated the penalty of removal to long-term suspensions, and the employees were permitted to return to duty without back pay.
Instead of choosing arbitration, the employee appealed his termination to the U.S. Merit Systems Protection Board, requesting mitigation of the penalty of removal. His appeal went to an administrative judge, who held an evidentiary hearing. At the hearing, the administrative judge rejected the employee's request for mitigation, reasoning that preponderance of the evidence demonstrated that he purchased marijuana from the co-worker while on duty.
The employee appealed to the U.S. Court of Appeals for the Federal Circuit. He argued that the Postal Service failed to prove that he purchased marijuana while on duty and in uniform, and that his removal from service was inconsistent with the arbitrators' decisions to mitigate the penalties imposed on other Postal Service employees who purchased marijuana from the co-worker.
The Federal Circuit found the evidence sufficient to uphold removal, as the standard was not proof beyond a reasonable doubt but merely a preponderance of the evidence. It further found that the arbitration decisions were not binding on the court and noted that the other Postal Service employees took responsibility for their actions, which supported their lesser punishment.
The Federal Circuit thus upheld the removal of the plaintiff from employment.
Holmes v. United States Postal Service, Fed. Cir., No. 2019-1973 (Feb. 8, 2021).
Professional Pointer: With changing marijuana laws, employers should exercise caution in firing employees for off-duty marijuana use. However, when evidence demonstrates use or purchase while at work and the employee does not accept responsibility, the courts will generally uphold discharge.
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.
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