We observe finally that both this and other circuits have upheld dismissals in other cases involving offenses which appear less serious or concerning employees with longer service records than McClaskey's. See Book v. United States Postal Service, 675 F.2d 158 (8th Cir. 1982) (per curiam) (postmaster discharged for unofficial use and unauthorized possession of Postal Service property worth approximately $22); Brewer v. United States Postal Service, 647 F.2d 1093, 227 Ct.Cl. 276 (postal employee of 25 years discharged for falsifying another employee's timecard and removing an undeliverable piece of third-class mail from the post office); Alsbury v. United States Postal Service, 530 F.2d 852 (9th Cir. 1976) (employee discharged for removing several items of postal property upon his transfer to a new post office). We conclude that the penalty imposed by the board here was not so disproportionate to the offense as to amount to an abuse of discretion.
Where an employee is removed for off-duty or off-work premises conduct, section 7513(a) has been read as requiring a nexus between the conduct and the efficiency of the service. See, e.g., Graybill v. United States Postal Service, 782 F.2d at 1573; Crofoot v. United States Government Printing Office, 761 F.2d at 664; Book v. United States Postal Service, 675 F.2d 158, 161 (8th Cir. 1982). Munnelly asserts that his activities connected with the Omaha Public Power District were wholly unrelated to his duties and responsibilities as postmaster, and the NADC findings regarding his activities could therefore have no effect on Munnelly's job performance or on the efficient operation of the Omaha Post Office.
In two recent unauthorized possession cases where the employee was in a position of trust, the penalty of removal was upheld. Book v. United States Postal Service, 675 F.2d 158 (8th Cir. 1982) (demonstrated lack of trustworthiness was directly connected to employee's job performance and position); Jones v. Department of the Navy, 83 FMSR ¶ 5009 (MSPB 1983) (removal an appropriate penalty since the employee's honesty and integrity were important to the agency in view of the position of trust he occupied in the care and control of the items he was charged with stealing). It is not just the dollar amount of the theft but the attitude of the employee that matters.
Adams concedes the propriety of adverse inferences in civil cases when a party is silent in the face of probative adverse evidence. See Baxter v. Palmigiano, 425 U.S. 308, 318-19, 96, S.Ct. 1551, 1557-58, 47 L.Ed.2d 810 (1976); Book v. Postal Service, 675 F.2d 158 (8th Cir. 1982). The briefs say failure to deny the charges is irrelevant because the agency had not presented sufficient adverse evidence.
When an employee is dismissed for an offense involving deliberate deception, the required nexus between the misconduct and the efficiency of the service is obvious. McClaskey v. U.S. Dept. of Energy, 720 F.2d at 589; Book v. U.S. Postal Service, 675 F.2d 158 (8th Cir. 1982). Because the plaintiff's falsification and unsatisfactory attendance were clearly job related, such on duty misconduct raises a presumption that the required nexus has been met. McClaskey, at 589.
In addition, federal courts have held that the pendency of related criminal proceedings is irrelevant in determining whether to draw an adverse inference, see e.g., Diebold v. Civil Service Commission, 611 F.2d 697, 701 (8th Cir. 1979) (holding that the fact that the defendant asserting the privilege in a civil action has already been indicted "has no bearing on the constitutional issues involved"); Roberts v. Taylor, 540 F.2d 540, 542 (1st Cir. 1976) (stating that the Baxter decision does not "accord leeway" for distinctions between a situation in which criminal charges are pending and a situation in which only a possibility of criminal charges are involved), cert. denied sub nom., Roberts v. Director, Department of Corrections, 429 U.S. 1076, 97 S.Ct. 819, 50 L.Ed.2d 796 (1977), and many decisions have drawn an adverse inference when criminal charges are pending. See e.g., Hoover v. Knight, 678 F.2d 578, 582 n. 1 (5th Cir. 1982); Book v. United States Postal Service, 675 F.2d 158, 160 n. 4 (8th Cir. 1982) (per curiam); Arthurs v. Stern, 560 F.2d 477, 478 (1st Cir. 1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 768, 54 L.Ed.2d 782 (1978); Rhode Island v. Cardillo, 592 F. Supp. 655, 658 (D.R.I. 1984); Marcello v. Long Island Railroad, 465 F. Supp. 54, 61 (S.D.N.Y. 1979). The permissible adverse inference has been used, however, only for the purpose of determining the scope of Tome's liability, following a determination of his liability without use of that inference.
Although a federal court may not second guess the wisdom of administrative personnel decisions, federal courts routinely review dismissals of Postal Service employees for the limited purpose of ensuring that such decisions are neither arbitrary nor capricious — precisely the sort of review requested by plaintiff in this case. Book v. U.S. Postal Service, 675 F.2d 158 (8th Cir. 1982); Yacavone v. Bolger, 645 F.2d 1028 (D.C. Cir. 1981), cert. denied, 454 U.S. 844, 102 S.Ct. 159, 70 L.Ed.2d 130 (1981); Adkins v. Hampton, 586 F.2d 1070 (5th Cir. 1978); Alsbury v. U.S. Postal Service, 530 F.2d 852 (9th Cir. 1976), cert. denied, 429 U.S. 828, 97 S.Ct. 85, 50 L.Ed.2d 91 (1976); Ross v. U.S. Postal Service, 556 F. Supp. 729 (N.D.Ala. 1983); Poole v. U.S. Postal Service, 540 F. Supp. 105 (S.D.Ohio 1982); Oates v. U.S. Postal Service, 444 F. Supp. 100 (S.D.N Y 1978); Withers v. U.S. Postal Service, 417 F. Supp. 1 (W.D.Mo. 1976). Additionally, federal courts have also exercised their inherent power of review over "arbitrary or capricious" agency action in cases involving the dismissal of probationary Postal employees. Jordan v. Bolger, 522 F. Supp. 1197 (N.D.Miss.