author: McENTEE, Circuit Judge.

text:
    Michael KUKURUZA, Plaintiff-Appellee, v. GENERAL ELECTRIC COMPANY, Defendant-Appellant.
    No. 74-1247.
    United States Court of Appeals, First Circuit.
    Argued Nov. 6, 1974.
    Decided Feb. 14, 1975.

      Walter G'. Murphy, Boston, Mass., with whom Murphy & Mitchell, Boston, Mass., was on brief, for defendant-appellant.
    Albert P. Zabin, Boston, Mass., with whom Schneider, Reilly, Zabin & Connolly, P.C., Boston, Mass., was on brief, for plaintiff-appellee.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   McENTEE, Circuit Judge.

Defendant General Electric Company appeals from a judgment for $175,301 entered against it following a verdict for plaintiff Kukuruza, who was severely injured when he fell from an overhead crane in a GE plant. Most of the facts were sharply disputed, but the relevant evidence is as follows: Kukuruza was an employee of W. T. Kenney Company, which entered into a contract with GE to paint the ceilings in the main floor, the walls, and the main bay crane at the GE plant in Medford, Massachusetts. It was stipulated that at the time of his fall Kukuruza was engaged as an employee of an independent contractor. Before the work began on November 29, 1968, George Caracostas, GE’s plant and safety engineer at the Medford plant, spoke with Edward Kenney, secretary-treasurer of W. T. Kenney Company, and James Kenney, a foreman, about safety procedures. He explained that when the crane was to be worked on the GE safety procedure was to shut off its power by throwing the switch, to remove the fuses, and to tie a red tag across the handle warning that the switch could only be closed by the person who had signed the red tag. Caracostas told the Kenneys that the Kenney employees were never to touch the switch. Though Edward Kenney confirmed that he and James Kenney received these instructions, and though he testified that he instructed his foreman to relay them to the Kenney workers, Kukuruza testified that he was not told anything about the red tag procedures.

The overhead crane from which plaintiff fell travels on two horizontal and parallel I beams. There were electric cables on the crane and along its I beams. Plaintiff testified that he knew these were bare copper wires and thus dangerous. On December 2, 1968, plaintiff had put a primer coat of paint on the crane. On December 10, his second day at the job site, he had climbed up a ladder to the crane and begun assemblying his staging. At that point someone told him to come down so the crane could be used. When hollers to put on the power were heard, George Roundbehler, the Kenney foreman, pointed out the switch and told Kukuruza to put the power on. Plaintiff did so and testified he observed no red tag. The crane was used for a while, according to testimony of some of Kukuruza’s coworkers, but the period of time was variously stated as at least 15-20 minutes and at least an hour. Edward Kenney testified that when he left the plant at 4:15 p. m. that day, before plaintiff’s fall, he saw that the red tag was on the switch and it was shut down. Caracostas also testified he looked at the switch after the accident and it was red-tagged and the fuses were on the bench.

The plaintiff testified that GE workers, after they had finished with the crane, told him it was all right to use the crane; but he could not identify these workers more specifically. A number of GE workers testified they did not hear anyone tell him it was safe to go back up. He then put his ladder against the catwalk and climbed up to the crane again. He stated that he took no steps to check whether the power was off. Before the interruption plaintiff, a licensed rigger, had placed three planks, six feet long, so that they extended from one I beam to the other and rested on the flanges. He had also brought up a toothpick, which is a staging device shaped like an aluminum ladder with plywood covering the rungs but with exposed aluminum sides. When plaintiff reached the staging area after the interruption, he put the toothpick on top of the three planks to use as a walking plank and tied the toothpick with a rope to a pipe or angle iron so that it was touching one end of the crane. Then he put his left foot on the flange of the I beam, leaving his right foot on the toothpick, and reached over the I beam for his paint. As he put his hands on the I beam, he stated that he got a jolt, stiffened out, and fell. This account by the plaintiff of how the accident happened was sharply disputed by a number of GE employees who testified that they had seen him pushing a board with one foot shortly before the fall. The plaintiff’s answers to interrogatories had also stated, in essence, that the accident had occurred because he slipped on improper planking. The rest of the facts are stated as needed in the opinion.

We begin our consideration of the errors alleged by defendant by examining whether the expert testimony of one Galagan, a consulting electrical engineer, who testified to having specialized knowledge on “high voltage hazards” and “electric shocks,” was properly admitted. Plaintiff had testified he felt a “jolt” and stiffened up just before he fell, and Galagan was allowed to testify, over objection, that from plaintiff’s version it “sounded like” and “appeared to me” that plaintiff received a high-impedance shock “of short duration but sufficient to cause surprise that he got the shock and caused the involuntary movement on his part.” Galagan further testified that the “most likely cause of the shock” was a “potential difference,” that is, a difference in voltage between the plaintiff himself and the part of the crane he touched. In his opinion the probable cause of this potential difference was current leakage through the insulation of the wiring or around the terminal blocks or around the terminals of the motor.

Defendant objected to use of the word “shock,” on the ground that the word “jolt” used by plaintiff did not permit a clear inference that the sensation plaintiff felt was electrically induced. But Galagan’s qualifications were adequate to allow him to express an opinion that plaintiff’s “jolt” under the circumstances described an electric shock. See Cain v. Southern Massachusetts Tel. Co., 219 Mass. 504, 107 N.E. 380 (1914).

Galagan based his testimony in part on the wiring diagrams of the crane and upon his examination of the crane some 5V2 years after the accident. Defendant objects that this evidence was admissible only if the trial judge first found that the condition of the crane was substantially identical at the time of the accident and the time of the inspection, and that plaintiff had the burden of proving this substantial identity. At most the trial judge needed only to conclude that a prima facie showing of substantial identity had been made, since the weight to be given to the evidence about the similarity of the conditions was plainly for the jury. Hines v. Stanley G. I. Electric Mfg. Co., 203 Mass. 288, 292, 89 N.E. 628, 630 (1909). The trial judge implicitly found substantial identity when after a bench conference he refused a motion to strike Galagan’s testimony. At the bench conference counsel for defendant conceded the accuracy of the wiring diagrams upon which Galagan relied in part, and he stated that no relevant differences in the crane were known to him. Cf. Guinan v. Famous Players-Lasky Corp., 267 Mass. 501, 522, 167 N.E. 235, 245 (1929) (jury view). Moreover, GE’s manager later testified that at the relevant times the crane was substantially the same electrically. Since defendant offered no evidence to show dissimilarity, e. g., Lee v. Commonwealth, 1972 Mass.Adv.Sh. 646, 281 N.E.2d 239, it was not prejudiced by the trial court’s refusal to strike Galagan’s testimony for this reason.

Defendant’s last theory to exclude Galagan’s testimony was that since he made no tests to determine whether any potential difference actually existed and since he could not say whether there was any leakage either at the time of the accident or at the time of his examination, his testimony was mere speculation and hence inadmissible. Defendant’s principle that “mere guesswork masquerading as expert testimony must be stricken” is sound, but the cases to which he analogizes the instant case are distinguishable.

Nass v. Duxbury, 327 Mass. 396, 99 N.E.2d 54 (1951), is the case most helpful to GE. In Nass the expert witness’s testimony that the sand defendant dumped on the beach would have changed the channel of the river was dismissed as insufficient to sustain a verdict for plaintiff because, among other inadequacies, there was no evidence in the case “that the sand allegedly in the channel was of the same texture or composition as that on the defendant’s beach.” 327 Mass, at 402, 99 N.E.2d at 57. The court held that the expert’s testimony did not foreclose other equally likely causes for the damages to plaintiff’s land. In Nass the expert’s attempt to show a causal connection between the presence of a blockade in the south channel and the defendant’s dumping of sand on his land adjacent to the south channel was treated as a mere guess or conjecture by the court. No such deficient causal connection is present in Galagan’s testimony. Plaintiff’s testimony of a “jolt” coupled with “stiffening,” in the absence of any other explanation, provided a sufficient predicate for the expert’s testimony of a high impedance shock, the most likely cause of which was a potential difference caused by current leakage. And taken collectively plaintiff’s testimony and the expert’s evaluation permitted a reasonable inference of a probable causal connection between an electrical shock and the fall. Nass would require reversal if there were no evidence that plaintiff received a shock, or if there were no evidence as to what he touched before he fell, but there was evidence as to both.

Galagan did not conduct any tests on the crane to verify his explanation that there must have been current leakage in 1968, while James Kirtley, the defendant’s expert and an assistant professor at MIT, testified that the tests he conducted in 1974 did not disclose any current leakage. Galagan’s failure to offer real evidence of current leakage does not mean plaintiff failed to establish a prima facie causal connection casting liability upon the defendant. The jurors could have discounted Kirtley’s tests because they were performed long after the accident, or they could have discounted his testimony because he had an ongoing contract to do consulting work for GE. Galagan’s failure to test for current leakage would entitle the jury to reject his opinion in favor of another explanation, but the defendant was not thereby entitled to have the opinion excluded or the case dismissed.

The case at bar is most analogous to Gelinas v. New England Power Co., 1971 Mass.Adv.Sh. 429, 268 N.E.2d 336. In that case the plaintiff was working on a conveyor whose highest point was 19 feet above the ground and some 11 feet below the defendant’s live wires. In attempting to show how he suffered an electrical shock because of the defendant’s negligence, the plaintiff introduced testimony from an expert in the electrical field. The expert stated “[i]t was his opinion that electricity from the defendant’s wires arced to the conveyor through a piece of wire hanging from the defendant’s wires and going down to within a foot of the conveyor.” 1971 Mass.Adv.Sh. at 432, 268 N.E.2d at 338. This evidence was held sufficient to allow the jury to find that the defendant was negligent in not maintaining its wires properly, even though such a hanging wire was not actually seen. Similarly in the case at bar, the plaintiff’s expert could explain the facts to which plaintiff testified as probably being caused by current leakage without proving that there actually was current leakage. Hence defendant’s motion to strike Galagan’s testimony was properly denied.

GE argues that the district court erred in denying its motion for a directed verdict. Its claim is that since the dangers of working on the crane were open and obvious, rather than hidden, there was no duty to the plaintiff which the defendant failed to perform. Viewing the evidence in the light most favorable to the plaintiff, as required in considering a motion for a directed verdict, we must treat this case as involving a hidden defect. Plaintiff’s expert witness testified that the most probable cause of the shock plaintiff received was a difference in potential between the plaintiff and the I beam he was touching, which difference was caused by current leakage. Massachusetts law is clear that the duty defendant owed this plaintiff, the employee of an independent contractor working on defendant’s premises, was the same duty defendant owed its own employees. Sparks v. Kepnes, 339 Mass. 349, 351, 159 N.E.2d 109, 110-11 (1959); Williams v. United Men’s Shop, Inc., 317 Mass. 319, 320, 58 N.E.2d 2, 3 (1944). That duty was to disclose hidden defects which GE knew of or could have discovered by exercising reasonable care. Hannon v. Hayes-Bickford Lunch System, 336 Mass. 268, 272, 145 N.E.2d 191, 193 (1957); Gallo v. Leahy, 297 Mass. 265, 268, 8 N.E.2d 782, 784 (1937). The testimony by plaintiff’s expert made it a jury question whether

there was a hidden defect which caused plaintiff’s injuries. Since GE controlled the premises and maintained the crane, the jury could decide that if it had exercised reasonable care GE would have discovered the defect. Thus the directed verdict was properly refused.

The cases defendant relies on do not change this conclusion. First, defendant cites Burr v. Massachusetts Electric Co., 356 Mass. 144, 248 N.E.2d 492 (1969), where the employee of an independent contractor was electrocuted when he contacted a live wire. The defendant there had hired the contractor to trim trees to prevent them from interfering with electric wires maintained by that defendant. The court held the defendant’s motion for a directed verdict should have been granted, saying:

“Burr knew of the existence and location of the wires; and even if not warned of their danger, he should have realized that they might be energized. There is no duty to warn of dangers which are obvious or could be discovered by reasonable inspection and therefore there was no breach of duty owed by defendant to Burr.” 356 Mass, at 147, 248 N.E.2d at 495.

In Burr plaintiff suffered his injury by carelessly touching the wire as he raised himself in the elevated bucket. There was no hidden defect. For example, if the wire, having deteriorated over time, had suddenly broken and hit plaintiff, a jury issue would undoubtedly have been presented. Cf. Gelinas v. New England Power Co., supra (plaintiff injured when electricity arced from defendant’s line to conveyor whose highest point was more than 10 feet below wire). Again, if the pole supporting defendant’s wire had suddenly collapsed from some hidden defect and brought the wire down on top of the plaintiff, defendant would not have been entitled to a directed verdict merely because the plaintiff knew electricity was dangerous and electricity was the immediate cause of the plaintiff’s injuries.

Lawler v. General Electric Co., 1973 Mass.App.Adv.Sh. 255, 294 N.E.2d 535, where the plaintiff received an electric shock while working around a General Electric crane, fails to support defendant’s position. The plaintiff in that case, knowing that the defendant owed him no duty to warn of obvious dangers, tried to argue that “irrespective of the red tag»procedure [also used there to warn whether the power was turned on], once the crane was turned on a duty arose on the defendant to warn all of the employees of the danger.” 294 N.E.2d at 538. The plaintiff was attempting to ignore the red tag safety procedure and use the passage of two weeks time to turn the previously obvious danger into a hidden defect. Since the court rejected this effort to transform an obvious danger into a hidden defect, the result followed that there was no evidence of a hidden defect which could be relied upon to recover. In contrast, this case contained evidence of a hidden defect for which defendant could be held liable.

GE next complains that Kukuruza voluntarily assumed the risk of injury as a matter of law. We do not agree. That Kukuruza knew that electricity and bare wires were dangerous does not mean he assumed the risk of shock from current leakage. See Ryan v. Gray, 316 Mass. 259, 261, 55 N.E.2d 700, 701 (1944) (dim light in hall leading to closet; plaintiff did not assume risk of there being no floor in closet). Plaintiff’s fall was precipitated by contact with the I beam, yet there was no evidence that he knew contact with it would be dangerous. “Intelligent appreciation of the risk cannot necessarily be predicated upon a mere knowledge of some danger,” McCarthy v. Morse, 197 Mass. 332, 336, 83 N.E. 1109, 1110 (1908), so knowledge of the danger posed by the wires does not establish knowledge that the I beam was also dangerous. See also Gobern v. Metals & Controls, Inc., 418 F.2d 290, 296 (1st Cir. 1969); Stewart v. Roy Bros. Inc., 358 Mass. 446, 453, 265 N.E.2d 357, 362 (1970) (plaintiff loading flammable liquid did not assume risk of burns caused by defendant’s negligence).

Similar infirmities require rejection of defendant’s argument that he proved plaintiff’s contributory negligence as a matter of law. Defendant’s argument is that since Kukuruza himself had turned on the power and since he knew of the danger the bare wires presented it was contributory negligence as a matter of law to return to work without checking the easily accessible switch. We note that it is a rare case where it can be ruled as a matter of law that defendant satisfied his burden of proving contributory negligence. See Halley v. Hugh Nawn, Inc., 356 Mass. 28, 30, 248 N.E.2d 5, 7 (1969). This is not such a case. Plaintiff testified that he was assured by GE employees that it was safe to resume work on the crane. Thus the jury could conclude that Kukuruza acted as a reasonably prudent person in not checking the switch. We cannot rule that Kukuruza “has by his own want of ordinary prudence contributed to the injury ..” Duggan v. Bay State St. Ry., 230 Mass. 370, 377, 119 N.E. 757, 759 (1918).

GE next asserts that an alleged admission by plaintiff was erroneously excluded from evidence. According to GE, the excluded document — an agreement for compensation from the company providing workmen’s compensation for the plaintiff — would have shown that the cause of the accident was not an electric shock but the mere slippage of a board from under his feet. The document, dated some seven weeks after the fall and allegedly signed by the plaintiff, stated in relevant part: “Cause of accidént[:] ‘Employee was painting a crane 20' above ground when board slipped from beneath his feet causing him to fall on ground.’ ” One reason the court gave for excluding this document was that it was cumulative evidence. GE had already introduced parts of the plaintiff’s interrogatory answers to the effect that the movement of the planking had thrown him to the ground and that the planks were greasy and not capable of being properly secured. And plaintiff had admitted that these interrogatory passages mentioned nothing about a jolt. Apparently the trial court ruled that the statement in the document was cumulative because GE had already presented to the jury its position that the testimony about a jolt was at best an afterthought and at worst a fabrication. But that reasoning was erroneous. A trial judge cannot keep relevant and material evidence from the jury simply because they already have before them evidence which, if believed, would warrant their adopting the view which the evidence was offered to support. Lipinsky v. Middlesex Supply Inc., 352 Mass. 771, 225 N.E.2d 359 (1967) (error to exclude document, even though it only corroborated much oral testimony); Perkins v. Rice, 187 Mass. 28, 72 N.E. 323 (1904); 1 G. Mottla, Proof of Cases in Massachusetts § 567 (2d ed. 1966).

The exclusion of the compensation claim form was proper for a different reason, however. That a plaintiff made a compensation claim would normally be inadmissible. Goldstein v. Gontarz, 1974 Mass.Adv.Sh. 357, 365-66, 309 N.E.2d 196, 202-03. Thus we are faced with deciding whether the harm of exclusion to defendant outweighed the harm of admission to plaintiff. See United States v. Hopkinson, 492 F.2d 1041, 1043 (1st Cir. 1974). Admission of the document might have led the jurors to consider plaintiff’s claim unimportant or to refuse him a verdict or to reduce his recovery to avoid double recovery. See Goldstein v. Gontarz, supra. Weighed against this is the harm to defendant from excluding a representation as to the cause of the accident which was made when plaintiff’s memory was most fresh. Two factors convince us that the balance was properly struck in favor of excluding the document. First, the exclusion did not deprive GE of the only evidence it had suggesting that Kukuruza’s claim of electrical shock may have been a recent contrivance. As we have already indicated, the defendant did get this defense before the jury through plaintiff’s interrogatory answers. Second, GE never attempted to offer into evidence only the statement claimed to be an admission. Had defendant sought to block out the indications that the document was a compensation claim form, instead of trying to introduce the whole document, the anticipated prejudice to plaintiff might have been reduced enough to change the equities. In light of these considerations, we do not think the exclusion of the document was reversible error.

(This portion of the opinion, dealing with the common employment defense, is of no precedential value and is not released for publication. See 1st Cir. Rules, Appendix B.)

Relying on Lawler v. General Electric Co., supra, where the plaintiff received an electric shock from contacting a live wire on another General Electric crane, GE argues that the trial court incorrectly charged the jury on the standard of care required of it. The specific portion of the charge under challenge was as follows:

“In assessing the potential danger of a situation you are to consider all of the circumstances which existed at the time of this accident. On this score you may consider that electricity is a force of highly dangerous potential and that those employing it are held to a commensurately high standard of care.”

The defendant’s objection is that Lawler held such a charge to be improper in a case remarkably similar to the case at bar. The language in Lawler upon which defendant relies is as follows:

“The plaintiff argues that the highly dangerous character of electricity requires that the defendant be held to a correspondingly high degree of care in its use. . . . The application of this doctrine is limited to those cases where the victim of the accident was, in relation to the defendant, a member of the general public. . . . ” 294 N.E.2d at 537 (citations omitted, emphasis added).

This language does not support defendant’s claim that the charge was improper. What the Appeals Court of Massachusetts stated in Lawler was that the defendant was not required as a matter of law to exercise a high degree of care merely because it used electricity. But the court below did not instruct the jury to measure defendant’s conduct against a high degree of care. The trial court merely charged the jury that they “may consider” that electricity is dangerous and thus they may decide that reasonable care in the circumstances meant more than ordinary care. The crucial distinction is between requiring as a matter of law that the defendant exercise a high degree of care (which Lawler disapproved in a case like this) and allowing the jury to decide that a high degree of care was what was required of a reasonable defendant in the circumstances presented.

Lawler certainly does not stand for any rule that the jury cannot be told they can consider all the relevant factors, including the aspect of electricity, which is all the trial court did. Though Massachusetts employers do not owe their employees a general duty of due care, see Barrett v. Foster Grant Co., 450 F.2d 1146 (1st Cir. 1971), and the discussion infra, that does not always render unnecessary jury consideration of the reasonableness of an employer’s conduct. In applying the duty to disclose hidden defects of which the defendant knew or which it could discover in the exercise of reasonable care, the jury must consider what degree of care is reasonable. For example, the reasonable care a jury may require of an employer to discover whether there is a defect in a short ladder may be much less than the reasonable care the jury may require to discover whether there is current leakage on an overhead high-voltage crane. The challenged portion of the charge was in accordance with this principle, and hence was not erroneous, even if it was less carefully phrased than desirable. See note 7 supra.

GE’s last claim is that the trial court improperly charged the jury as to the duty of care it owed Kukuruza. The trial court gave the jury a straight negligence charge, thus imposing on GE the full duties of due care owed to a business invitee from the general public rather than the more limited duty to disclose hidden defects either known or discoverable in the exercise of due care. See Powers v. Bethlehem Steel Corp., 477 F.2d 643, 649 (1st Cir.), cert. denied, 414 U.S. 856, 94 S.Ct. 160, 38 L.Ed.2d 106 (1973); Barrett v. Foster Grant Co., supra; Gobern v. Metals & Controls, Inc., supra. These cases clearly demonstrate that the charge impermissibly broadened defendant’s duty. But the fact that the charge was far from exemplary in this respect does not necessarily entitle GE to a new trial. See Charles A. Wright, Inc. v. F. D. Rich Co., 354 F.2d 710, 713-14 (1st Cir.), cert. denied, 384 U.S. 960, 86 S.Ct. 1586, 16 L.Ed.2d 673 (1966). Before a new trial can be granted, we must find that the error in the charge prejudiced the defendant’s rights. Fed.R. Civ.P. 61. For reasons that follow, we do not think there was such prejudice.

The starting place for our analysis must be the presumption that the jury understood and heeded the charge. This is important because the court charged the jury that “[t]he defendant has no duty to alter or reconstruct its premises so as to make them safe, and the plaintiff is held to assume all obvious risks incidental to his work . . . See note 8 supra. In light of that fact, we are unable to conceive of any theory by which the jury could have found for plaintiff and still have followed the charge as a whole. For example, the jury could not — consistent with the charge — -have found the defendant liable because it did not have a red tag procedure until after the accident. That would have required GE to “alter or reconstruct its premises so as to make them safe,” and it would have exonerated plaintiff from assuming an “obvious risk incidental to his work.” Nor could the jury have found the defendant liable on a theory that it furnished defective boards for planking. That theory was abandoned before trial, for the reason that Kenney supplied the boards, not GE.

A third theory the jury might have entertained was that there was no latent defect, but that a negligent misrepresentation was made by a GE employee that the power was off, and on that basis the defendant was liable. However, this theory was not squarely presented to the jury. But even if the jury did so conclude, we are not persuaded that the defendant was prejudiced. If GE had been doing this job itself and a GE employee had negligently told a fellow employee that the power was off, with the result that the fellow employee was injured when he accidentally touched a live wire, GE would have been liable to the plaintiff employee. Keeley v. Boston Elevated Ry., 192 Mass. 481, 78 N.E. 490 (1906) (night laborer on railway injured when power turned on to track without notice); cf. Hopkins v. O’Leary, 176 Mass. 258, 57 N.E. 342 (1900) (explosives). Since GE owes no less a duty to employees of Kenney than it owes to its own employees, Gray v. Boston, Revere Beach & Lynn R.R., 261 Mass. 479, 159 N.E. 441 (1928), it follows that GE would be liable to Kukuruza if he was injured because a GE employee told him it was safe to go back up when in fact it was dangerous.

The fourth and only remaining theory for the jury was that of a latent defect. The only way the jury could have imposed liability on the defendant via that theory would be by finding as a fact that a GE employee told plaintiff it was safe to go back up. Absent such a finding, the contributory negligence problems identified in note 11 supra would again make it impossible for a conscientious jury to comply with the charge. But neither this finding nor the finding that there was a latent defect would have been prejudiced by the straight negligence charge. In short, on the facts of this case we cannot see how the charge, even given its inadequacies, was prejudicial to the defendant.

Affirmed.

      . In Kennedy v. U-Haul Co., 1971 Mass. Adv.Sh. 1211, 271 N.E.2d 346, the expert witness was not familiar with plastic to any great extent and yet he testified that a cap in the truck braking system was negligently designed because it was made of plastic. No claim is made here that Galagan was unfamiliar with electrical matters, such as circuitry and potential differences.
      In King’s Case, 352 Mass. 488, 225 N.E.2d 900 (1967), there was no evidence that the employee’s death was causally related to his accident except the expert’s testimony. That testimony only established that it was mathematically more likely that there was a causal relation. But it was held that mathematical probability alone was insufficient to prove a conclusion by a preponderance of the evidence. Mathematical probabilities, however, are not at issue in this case.
      Dolan v. Suffolk Franklin Savings Bank, 355 Mass. 665, 246 N.E.2d 798 (1969), is clearly distinguishable. No evidence existed that the individual defendant’s husband was responsible for the fire. The theory that he could have been was mere speculation. This same weakness in the evidence existed in Milch v. Boston Consolidated Gas Co., 341 Mass. 230, 167 N.E.2d 845 (1960), also cited by defendant.

      . The defense theory in this case seemed to be either that defendant received no shock at all (e. g„ he slipped while he was rigging his scaffolding) or that he received his shock from touching a live wire. Both of these defenses were matters of the credibility of the plaintiff, and thus for the jury to decide. On the other hand, if the defense had been that while the plaintiff may have gotten a shock, it could equally well have been caused by mere static electricity generated on a cold, dry December afternoon in New England, cf. Friend v. Tropis Co., Ltd., 382 F.2d 633 (4th Cir. 1967), cert. denied, 390 U.S. 906, 88 S.Ct. 820, 19 L.Ed.2d 872 (1968), a Nass issue might have been more sharply raised. However, our review of the testimony of the experts offered by both sides does not persuade us that the latter defense was raised, and we will not speculate as to whether expert testimony could have supported it.

      . Defendant’s brief states, “It matters little whether plaintiff was injured by contacting live wires or by contacting I beams energized from current leakage.” Since the live wires were an obvious danger while the energized I beams were a hidden danger, there is clearly a crucial difference between the two possibilities.

      . Defendant apparently would have us hold that the switch box controlling power to the crane was itself the open defect: “The plaintiff is bound to know of defects which are open to view or which could have been if properly examined, as was the crane switch box here.” The gravamen of this argument is that no plaintiff (except perhaps a plaintiff who had to have power to the crane to perform his job) could recover for an electricity-connected injury unless he had first assured himself — by personally checking the switch box — that the power was off. We cannot accept such a broad rule. While failure to check the switch might be evidence of contributory negligence, defendant had not completely discharged his duty to plaintiff by making a switch box available for plaintiff’s inspection. Lawler does not state that defendant has no duty to plaintiff if the latter could have checked the switch box. That case turned on the fact that plaintiff ignored a known safety procedure. But Kukuruza testified he was never told about any red tag safety procedure.

      . GE also objects that the trial court failed to charge the jury on the defense of assumption of the risk. The claim is that if the jury had been properly instructed they could have chosen to disbelieve plaintiff’s testimony that he was assured it was all right to return to work and thus could have found for GE. This claim is without merit. The trial court’s charge adequately informed the jury that if the condition which caused plaintiff’s injuries was open and obvious, the verdict should be for the defendant.

      . Prevailing on a claim that the trial court ruled incorrectly on this question is not enough to secure a new trial for the appellant. The error must also be shown to have injuriously affected “the substantial rights of the parties.” Mass.Gen.Laws Ann. c. 231, § 132 (1959); Fed.R.Civ.P. 61. We do not reach that issue in this case, however, since we uphold the exclusion of the compensation claim form on another ground.

      . In explicating the challenged sentence in the charge, one could argue that it states two mandatory rules of law (“that electricity is a force of highly dangerous potential” and “that those employing it are held to a commensurately high standard of care”) rather than a possible finding of fact and resultant legal conclusion which the jury may entertain at its option. Though this construction of the sentence might be defensible if the sentence is viewed in isolation, in context the sentence has the meaning given it in the text above. In introducing this part of the charge, the judge said, “The law does not say how a reasonably careful person would act under those circumstances [the ones shown by the evidence to have existed in this case]. That is for you to decide.” This clearly left to the jury the task of giving content to the notion of reasonable care in the circumstances of this case; read in its light the challenged sentence merely calls the jury’s attention to one of those circumstances.

      . The charge was as follows:
      “The degree of care required of the defendant in this case is reasonable care or due care. This standard never varies, but the care which it is reasonable to require of a defendant varies according to the circumstances involved.
      “For example, the greater the potential danger, the greater the care which must be exercised.
      “In assessing the potential danger of a situation, you are to consider all the circumstances which existed at the time of this accident.
      “On this score you may consider that electricity is a force of highly dangerous potential and that those employing it are held to a commensurately high standard of care.
      “It is for you to determine what procedures for supervising the use of electricity were actually employed by G. E. on the day and time in question and then determine whether such procedures were reasonably adequate considering all the circumstances.
      “If you find that the procedures actually , employed by the defendant on the day and time in question were reasonable, then you should find for the defendant.
      “If, on the other hand, you find that the procedures followed by the defendant on the day and time in question do not constitute reasonable care under all the circumstances, then you should find for the plaintiff.
      “In addition, in weighing the reasonableness of defendant’s conduct, you are to have in mind that General Electric owed the plaintiff the duty of disclosing to him hidden defects which G. E. knew about or which by exercise of reasonable care it should have known about.”
      The court’s use of the words “In addition” before its correct statement of the defendant’s duty makes somewhat difficult an argument that the court cured its earlier error. However, the argument becomes more plausible when the next paragraph of the charge is read:
      “The defendant has no duty to alter or reconstruct its premises so as to make them safe, and the plaintiff is held to assume all obvious risks incidental to his work; but the plaintiff is not held to having assumed the risk of a defective condition on the defendant’s premises which was not open and obvious to him.”
      In any event, since we decide infra that the error was harmless, we need not consider whether it was cured by subsequent instructions.

      . E. g., Cole v. Boston Edison Co., 338 Mass. 661, 669, 157 N.E.2d 209, 214 (1959); Krinsky v. Whitney, 315 Mass. 661, 670, 54 N.E.2d 36, 41 (1944); Whitney v. Bayley, 86 Mass. (4 Allen) 173, 175 (1862).

      . We acknowledge that a jury charge could be so unclear that an appellate court would be unwilling to indulge the presumption that the jury heeded one part of the instruction and thereby limited the apparently broader import of a separate part. However, this charge was not so confusing as to undermine the presumption that the jury understood it and followed it.

      . Just prior to the quoted passage, the judge had instructed the jury: “It is for you to determine what procedures for supervising the use of electricity were actually employed by G.E. on the day and time in question and then determine whether such procedures were’ reasonably adequate considering all the circumstances.” This language can be understood as telling the jury that it is their job to determine the facts and apply the law to them, but even if it were understood as imposing a duty to have a red tag procedure it would not support a jury verdict for plaintiff either because of the absence of causation or because of contributory negligence. Causation would be absent because the plaintiff admitted that he did not check the switch before climbing back up to the crane. Contributory negligence would be present because, as the defendant itself argued, the situation would be that the man who had put the power back on went up to the crane shortly thereafter without any reason to believe the power was off. (This contributory negligence observation assumes that the sole basis for liability was the absence of a red tag procedure, rather than a jury finding that a GE employee negligently assured Kukuruza it was safe, which is considered separately.)

      . Lawler v. General Electric Co., supra, might be read for the proposition that the defendant is not liable for negligently misleading the plaintiff that there is no danger if the danger would have been obvious in the absence of such a statement. In Lawler the plaintiff claimed that he had been told that the GE crane involved there had been permanently turned off and that in the event it was turned on again everyone on the job would be notified. 294 N.E.2d at 537. However, there are numerous reasons to distinguish Lawler. First, the effect of a negligent misrepresentation was never considered. We will not assume from Lawler’s silence on this point that negligent assurances of safety create no liability. Second, the facts do not make clear who allegedly made the false representation to Lawler. It is possible that the representation was not made by any GE employee. See id. at n. 1. Third, it is likely that the court regarded reliance on the representation as unreasonable, because of other knowledge Lawler had: “In the present case, a well-defined procedure had been agreed to by the contractors in the event the crane wires were energized. The plaintiff knew this procedure, and a reasonable inspection of the switch box would have revealed the danger.” 294 N.E.2d at 538. “The plaintiff cannot ignore the fact that the red tag safety procedure was in effect during this time [the two weeks preceding the accident], indicating that the danger remained open and obvious. There was no reason for the defendant to believe that an additional warning was needed.” Id. In short, Lawler was not treated as a case where a negligent misstatement by defendant was the cause of plaintiffs injury.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William Maynard SAWYER, Petitioner, v. Garrell S. MULLANEY, Warden, Maine State Prison, and the State of Maine, Respondents.
    No. Misc. 74-8087.
    United States Court of Appeals, First Circuit.
    Submitted Nov. 29, 1974.
    Decided Feb. 21, 1975.
    William Maynard Sawyer, pro se, on application and memorandum in support thereof.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   PER CURIAM.

Petitioner, a prisoner at the Maine State Prison, filed a petition for a writ of habeas corpus. The district court dismissed the petition and denied a certificate of probable cause. The case is now before us for a determination on whether a certificate should issue and counsel should be appointed.

Petitioner was convicted of breaking, entering and larceny in the nighttime on the uncorroborated testimony of one Doughty, who claimed to have committed the theft along with the petitioner. Petitioner’s claim is that he was denied due process of law and his Sixth Amendment right to present two witnesses at a hearing on his motion for a new trial.

Doughty has on two occasions, contrary to his testimony at trial, stated that petitioner was not involved at all in the crime. The first occasion was prior to trial, and on the stand Doughty admitted that he had gone to petitioner’s attorney’s office and renounced his accusation of petitioner. At trial, Doughty attributed his recantation to fear of petitioner and' the effects of beer which he had consumed. About a year and a half after the trial, Doughty went to the Penobscot County Sheriff’s office and, under questioning by petitioner’s attorney (not the same one before whom the other statement was made) and in the presence of witnesses, made a sworn statement that petitioner was not involved in the crime and had been implicated only because of a grudge.

This statement formed the basis for a motion for retrial on the basis of newly discovered evidence. A hearing was held before a Superior Court Justice, and the motion was denied. Doughty testified at the hearing and, although he admitted making the statement, once again asserted the truth of the story he had told at trial. He said the statement exonerating petitioner had been made only because of threats and the fact that he had been drinking heavily. Petitioner’s counsel offered to produce two deputy sheriffs to testify that Doughty was not drunk at the time of the sworn statement given at the Sheriff’s office, but the Justice refused to hear these witnesses. The direct appeal and the refusal to grant a new trial were heard together by the Maine Supreme Judicial Court and the appeals were denied. 314 A.2d 830.

The Court, while observing that it would have been “preferable for the Justice to have heard the proffered testimony”, 314 A.2d at 834, noted that the Justice had been aware of the first recantation, that the jury had accepted the witness’ explanation of it, and that, while the witness claimed to have been “drinking quite heavy, too, at the time”, he had not attributed his recantation to being drunk. The pertinent standard at the hearing was whether the new evidence, which was merely cumulative and impeaching, made it clear that a new trial would result in a different verdict. The Supreme Judicial Court held that it could not say that the hearing Justice was clearly wrong in reaching a negative answer.

Even in reviewing denials of motions for new trials in federal courts, we recognize a wide degree of discretion on the part of the trial judge. It is a remedy which is “sparingly used”. United States v. Zannino, 468 F.2d 1299 (1st Cir. 1972), quoting from United States v. Leach, 427 F.2d 1107, 1111 (1st Cir. 1970). While we have no doubt thát jurisdiction exists to review state court denials of motions for new trial, see, e. g., Petition of Wright, 282 F.Supp. 999 (W.D.Ark.1968), success in habeas must necessarily rest on the presence of error of constitutional magnitude. In this case we agree with the Supreme Judicial Court that the preferable course, where the credibility of the state’s key witness was being challenged, would have been to receive the evidence. But, having in mind the knowledge of both recantations on the part of the hearing Justice, the tangential nature of the proffered impeachment, and the discretion reposed in him, we cannot find constitutional error. Indeed, we find no substantial constitutional issue.

The request for a certificate of probable cause is denied.

       The Justice advised Doughty that he might be subject to a perjury charge if his testimony at the hearing conflicted with his prior sworn statement, and petitioner suggests that this was coercive. We find this allegation to be insubstantial.


author: TAMM, Circuit Judge: PER CURIAM. BAZELON, Chief Judge.

text:
    Albert GUEORY v. Robert E. HAMPTON (Chairman of the United States Civil Service Commission), et al., Appellants.
    No. 73-1842.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 18, 1974.
    Decided Sept. 9, 1974.
    Rehearing Denied April 3, 1975.
    Stanton R. Koppel, Atty., Dept, of Justice, with whom Irving Jaffe, Acting Asst. Atty. Gen., Harold H. Titus, Jr., U. S. Atty., at the time the brief was filed, and Leonard Sehaitman, Atty., Dept, of Justice, were on the brief, for appellants. Earl J. Silbert, U. S. Atty., Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, and Nathan Dodell, Asst. U. S. Atty., also entered appearances for appellants.
    Ellen M. Scully, Washington, D. C., with whom Edward M. Basile, Washington, D. C., was on the brief, for appellee.
    Before EDWARDS, United States Circuit Judge for the Sixth Circuit, and TAMM and WILKEY, Circuit Judges.

       Sitting by designation pursuant to 28 U.S.C. § 291(a).

       Sitting by designation pursuant to Title 28 U.S. Code Section 291(a).

   TAMM, Circuit Judge:

Appellee Gueory filed an action for a declaratory judgment in the district court seeking a determination that his removal from employment with the United States Postal Service violated section 752.104(a) of the Civil Service Regulations. The district court granted plaintiff’s motion for summary judgment, concluding that as a matter of law there must be a specific showing as to how plaintiff’s criminal conduct, which was the asserted justification for his removal, deleteriously affected Gueory’s suitability for employment within the meaning of the Civil Service Regulations. The court then ordered the case remanded to the Civil Service Commission for further findings. Appellants seek review of that order, and for the reasons stated below, we reverse the decision of the district court.

I

On January 25, 1970, Mr. Gueory was arrested and charged with homicide arising out of a late night street incident. Indicted for second degree murder, Gueory went to trial in the district court on August 26, 1970. After two days of trial, he pleaded guilty to a reduced charge of manslaughter and was given a suspended sentence of two to seven years and placed on probation for five years. United States v. Gueory, Crim. No. 835-70 (D.D.C. Nov. 23, 1970). Appellee admits that he shot and killed a man. Appellee’s Br. at 4.

On September 24, 1970, Gueory was sent notice of his proposed removal from his position as Foreman, Laborers and Janitors, United States Post Office at Washington, D. C., based upon his conviction for manslaughter. Gueory, a veterans, preference eligible employee, could be removed “only for such cause as will promote the efficiency of the service.” 5 U.S.C. § 7512(a). The regulation, 5 C.F.R, § 752.104(a), promulgated under the statute, tracks the statutory standard and then continues that among the reasons that would constitute cause are the reasons listed for the disqualification of a prospective applicant in section 731.201. Section 731.201 provides that the Commission, inter alia, could instruct an agency to remove an appointee for:

(b) Criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct,

On October 16, 1970, the Postal Service Regional Director notified him that the charges were “fully supported by the evidence” which warrant “your removal to promote the efficiency of the service.” J.A. at 26. Gueory appealed his removal to the Assistant Postmaster General. On December 17, 1970, Gueory appeared at a hearing, represented by counsel, where he was allowed to testify and to confront and cross-examine management’s witness, J.A. 28-35. On April 14, 1971, the Assistant Postmaster General sustained Gueory’s removal, finding that “the charge is supported by substantial evidence of record” and that the arguments advanced in favor of leniency did not mitigate the seriousness of Gueory’s actions. J.A. at 38.

Gueory next appealed to the Civil Service Commission Examining Office. He received a full hearing on July 16, 1971, where he again testified and was represented by counsel. J.A. at 40-60. While admitting his manslaughter conviction, he argued that in view of his work record, background, and reputation, his removal would not promote the efficiency of the Service. Moreover, he asserted that the Postal Service must demonstrate specifically the relationship between his criminal conduct and the efficiency of the Service. Tr. at 46-47, J. A. at 57-58.

Plaintiff, however, gave conflicting testimony about the circumstances surrounding the fatal incident. In his argument during the December 17th hearing, Gueory’s attorney had admitted that his client had a few beers with his wife before returning home the evening of the shooting. According to his attorney, Gueory then left home at 3:00 a. m. after a domestic quarrel, and the shooting occurred outside his home thereafter. J.A. at 31. During his testimony before the Civil Service Appeals Examining Office, however, Gueory did not mention stopping off for beers nor the domestic quarrel, but testified he had merely left to get a cup of coffee immediately after arriving home with his wife. Tr. at 17, J.A. at 41.

On August 11, 1971, the Appeals Examining Office upheld plaintiff’s removal. The appeal examiners found “reason to question Mr. Gueory’s credibility,” J. A. at 71, and concluded that “Gueory did kill a fellow human being when there was no necessity for the killing to have occurred.” J.A. at 72. Holding that “there is no requirement in the law or the Civil Service regulations that an agency must state in what way a proposed removal will promote the efficiency of the service,” the appeal examiners found “nothing improper in an agency’s proposing the removal of one of its employees because he resorted to an act of such violence that he deprived another human being of his life.” Hence, the agency’s action “was not arbitrary, unreasonable or capricious, but was for such cause as will promote the efficiency of the service.” Id.

Gueory appealed to the Civil Service Board of Appeals and Review. On December 3, 1971, the Board affirmed, noting the contradictions in Gueory’s testimony, and concluded that “the removal action was for such cause as will promote the efficiency of the service within the meaning of that language in Section 752.104(a) of the Civil Service Regulations.” J.A. at 101.

Plaintiff then initiated this present action in district court to review the Civil Service Commission’s final decision. The district court granted Plaintiff’s summary judgment motion and found as a matter of law that there must be a specific showing of how the manslaughter conviction adversely affected Gueory’s suitability for employment under Civil Service Regulations. The court remanded the case to the Civil Service Commission so that it could make a finding as to whether the United States Postal Service met its burden of establishing the specific connection. Gueory v. Hampton, C.A. 410-72 (D.D. C. April 19, 1973), J.A. at 17. This appeal followed.

II

Appellee makes the threshold argument that the district court’s order is not a final order within the meaning of 28 U.S.C. § 1291 and is therefore not appealable at this time. Appellee argues that since the district court ordered a remand to the Civil Service Commission, there exists no appealable final decision. Appellee’s Br. at 9-10. We disagree.

Under section 1291, an' appeal may be taken from any final order of a district court. However, as the Supreme Court has repeatedly held, “the requirement of finality is to be given a ‘practical rather than a technical construction.’ ” See, e. g., Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964), quoting Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Thus, orders which remanded causes to the appropriate administrative or executive agency have been considered final and appealable by the courts. See Citizens to Preserve Overton Park v. Brinegar, 494 F.2d 1212 (6th Cir. 1973); Cohen v. Perales, 412 F.2d 44, 48-49 (5th Cir. 1969), rev’d. on other grounds, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).

Under such a practical construction, the district court’s order in this case is clearly final. The remand to the Civil Service Commission is appealable because if review were not allowed now, the Government would probably never be able to test the legal correctness of the finding that in a dismissal for “criminal conduct” there must be an additional statement of exactly how the conduct diminishes the efficiency of the service.

Ill

In turning to the merits, we must at the outset be cognizant of the limited review function of both the district court and court of appeals in employee adverse action litigation. Our prior opinions establish that the judicial review of civil service firings should be governed by the principles generally applicable to judicial review of administrative action. Polcover v. Secretary of Treasury, 155 U.S.App.D.C. 338, 477 F.2d 1223 (1973); Scott v. Macy, 131 U.S.App.D.C. 93, 402 F.2d 644, 647 n.6 (1968). Discretion primarily lies in the hands of the administrative agencies involved, and the courts will not substitute their own judgment for that of the agency’s. Review is thus limited to whether the agency denied the employee his appropriate procedural rights and whether the decision to remove the employee was arbitrary and capricious. Studemeyer v. Macy, 116 U.S.App.D.C. 120, 321 F.2d 386 (1963); Pelicone v. Hodges, 116 U.S.App.D.C. 32, 320 F.2d 754 (1963).

In the instant case, appellee Gueory was plainly afforded the entire panoply of procedural rights. As amply documented in the record, appellee vigorously pressed his ease, (assisted by counsel, through three separate reviews of the original decision to dismiss him, including two oral hearings.

Consequently, the ultimate question before us is whether Gueory’s dismissal, without an explicit showing of the deleterious effect his criminal conduct had on the efficiency of the service, was arbitrary and capricious.

The appropriate statute, 5 U.S.C. § 7512(a), requires that adverse action be taken only for cause which will promote the efficiency of the service. In Gueory’s case, the Postal Service invoked interpretive regulations which set out criminal conduct as a sufficient cause that would promote the efficiency of the service, 5 C.F.R. §§ 752.104(a), 731.-201(b). The question, therefore, for judicial review is whether those interpretive regulations are valid, and if so, whether appellee’s conduct falls within the ambit of the regulation.

Our review of an interpretive regulation is limited. Such interpretive rules are “ ‘of controlling weight unless [they are] plainly erroneous or inconsistent with the regulation.’ ” Immigration and Naturalization Service v. Stanisic, 395 U.S. 62, 72, 89 S.Ct. 1519, 1526, 23 L.Ed.2d 101 (1969), quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945). Under that standard, the inclusion of criminal conduct as a “cause which will promote the efficiency of the service” hardly seems plainly erroneous, inconsistent, arbitrary or capricious. Certainly, an employee’s conviction of a crime casts grave doubt on his reliability, trustworthiness and ethical conduct, all of which naturally affect the efficiency of the service. See Embrey v. Hampton, 470 F.2d 146 (4th Cir. 1972); Rodriguez v. Seamans, 150 U.S.App.D.C. 1, 463 F.2d 837, cert. denied, 409 U.S. 1094, 93 S.Ct. 704, 34 L.Ed.2d 664 (1972).

In concluding, however, that this logical nexus exists between the interpretive regulation and the statutory standard, we do so with caution. We readily recognize that the nexus may become attenuated if an agency attempts to invoke the regulation for activities of a minor nature, such as a traffic citation. We leave the difficult task of drawing a line of demarcation for a future time. No matter where that line is drawn, it is clear that manslaughter, the unlawful taking of a human life, falls in the area where the nexus is strong and secure.

Appellee contends that this case is controlled by our decisions in Scott v. Macy, 121 U.S.App.D.C. 205, 349 F.2d 182 (1965), and Norton v. Macy, 135 U. S.App.D.C. 214, 417 F.2d 1161 (1969). In Scott, we held by a 2-1 vote that the Civil Service Commission’s conclusion that the appellant was prospectively ineligible for Government employment based on a determination of “immoral conduct” and “homosexual conduct” could not stand. 349 F.2d at 185. In Norton, a divided panel held that a NASA employee’s discharge for “immoral conduct” based upon a record of an off-duty homosexual incident did not suggest any reasonable connection between the evidence and the efficiency of the service. 417 F.2d at 1167.

We find those cases distinguishable, not dispositive. As the Civil Service Commission recognized in its opinion, “[t]he cases cited by [Gueory] as requiring a showing of the connection between the alleged misbehavior and a removal to promote the efficiency of the service did not involve convictions of a crime.” J.A. at 101. 'in all cases involving criminal conduct, the reviewing courts have uniformly upheld the dismissals as promoting the efficiency of the service^ In Taffel v. Hampton, 463 F.2d 251 (5th Cir. 1972), for example, the Fifth Circuit upheld the dismissal of a Postal Service employee who was arrested for shoplifting, finding sufficient evidence to promote the efficiency of the service. See also Embrey v. Hampton, supra, 470 F.2d 146; Rodriguez v. Sea-mans, supra, 463 F.2d 837; Vigil v. Post Office, 406 F.2d 921 (10th Cir. 1969).

Moreover, the conclusion in Norton that the agency was required to do more than just demonstrate that “immoral conduct” had occurred was buttressed by arguing that the standard was both vague and overbroad and required the supervising agency to make moral pronouncements about its employees’ activities. 417 F.2d at 1163-1165. The court also recognized that enforcement of such a standard would require the agency to intrude into the employee’s privacy and would attach a social stigma or “badge of infamy” to that employee. Id. at 1164-1165. Such problems do not confront us here. The only moral judgment was made when Congress enacted the District of Columbia Code. Gueory’s conviction is on the public record, and if he wears any badge of infamy, he pinned it on himself by committing and then pleading guilty to a criminal 'homicide.

Appellee also argues that in applying the interpretive regulations against him, the Service invoked an unconstitutional irrebuttable presumption against him. In support of that contention, he cites cases including the Supreme Court’s recent decisions in Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973), and Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). It is true that the Court has condemned certain statutory presumptions as violative of due process. Appellee, however, woefully misconstrues the scope of these holdings. The Court strongly indicated that procedural due process is violated when these statutory presumptions are irrevocably applied against an individual who receives no opportunity for refutation. See 412 U.S. at 446-447, 93 S.Ct. 2230; 405 U.S. at 657-658, 92 S.Ct. 1208. See also Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974). Here, no such irrebuttable presumption was employed against appellee. As amply demonstrated in Part I supra, even if the interpretive regulation set up a presumption, Gueory was given opportunity after opportunity, hearing after hearing to rebut it. We find no due process violation.

IV

In light of our conclusion that the Service properly applied a rational interpretive regulation, we hold that the district court erred by ruling that as a matter of law a more specific showing was required. We recognize again that a mere incantation by an agency of the interpretive regulation in a situation involving less serious criminal conduct might necessitate a different result. However, under these circumstances, where the nexus between the regulation as applied and the statutory standard is clear, the reviewing courts should not disturb the discretionary determinations of the agency and Commission charged by Congress with primary responsibility in this area. The district court’s order, therefore, is vacated and the case is remanded with instructions to enter judgment for the defendants.

It is so ordered.

On Appellee’s Suggestion for Rehearing En Banc.

Before BAZELON, Chief Judge, WRIGHT, McGOWAN, EDWARDS , U.S. Circuit Judge for the Sixth Circuit, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.

ORDER

PER CURIAM.

It appearing that appellee’s suggestion for rehearing en banc having been transmitted to the full Court and there not being a majority of the Judges in regular active service in favor of having this case reheard en banc, it is

Ordered by the Court en banc that the aforesaid suggestion for rehearing en banc is denied.

Statement of Chief Judge Bazelon as to why the case should be reconsidered en banc.

BAZELON, Chief Judge.

Appellee Gueory was dismissed by the Postal Service after pleading guilty to a charge of manslaughter in the slaying of a man outside his home in southeast Washington, D. C. As a veteran’s preference eligible employee, Gueory could be removed “only for such cause as will promote the efficiency of the service.” 5 U.S.C. § 7512(a). This statutory standard has been interpreted by the Civil Service Commission in regulations which provide that “among the reasons that constitute ‘such cause as will promote the efficiency of the service’ ” is “criminal, infamous, dishonest, immoral or notoriously disgraceful conduct.” 5 C.F.R. §§ 752.104(a); 731.201(b). Gueory’s firing was predicated on his conviction for manslaughter.

In appeals from the initial decision within the Postal Service and before the Civil Service Commission, Gueory did not contest that he had killed a man. Instead he relied on a number of “mitigating factors” which, he contended, counteracted the adverse inferences that might ordinarily be drawn from an admission of guilt to a crime of this seriousness: 1) The man Gueory shot was approaching him in a menacing manner, apparently intent on robbing or assaulting him. The incident took place at night in a “high-crime” neighborhood.

2) The district judge imposed a suspended sentence and placed Gueory on five years’ probation. 3) Prior to this offense, Gueory had a “clean record.” 4) He had worked for the Postal Service for nine years, during which he had been promoted from janitor to laborer to supervisor of janitorial staff. His presentation included a letter from his immediate superior, John Q. Adams, commending him as “very polite, easy going, honest, reliable, efficient and well liked by his co-workers and superiors.” 5) Gueory continued to work for eight months after the killing and for one month after he entered his guilty plea, apparently at the same level of proficiency and without deterioration of his relationships with others on the job. 6) He offered 28 letters attesting to his good character from friends and co-workers.

Both the Postal Service and the Civil Service Commission concluded that these reasons offered for leniency did not “mitigate the seriousness of [the] actions as charged.” They further concluded that Gueory’s dismissal was “for such cause as will promote the efficiency of the service.” This conclusion' was not supported by evidence other than that Gueory had killed another “unnecessarily” or by any specification of employment-related concerns which might be relevant to Gueory’s case. The Civil Service Commission expressly found that “there is no requirement in the law or the Civil Service regulations that an agency must state in what way a proposed removal will promote the efficiency of the service.”

Un appeal from the final decision of the Civil Service Commission, the district court concluded that “as a matter of law there must be a specific showing how the criminal conduct in question had a deleterious effect on plaintiff’s suitability for employment within the meaning of Section 752.104(a) of the Civil Service Regulations,” and remanded to the Civil Service Commission “to make a finding as to whether the United States Postal Service has met the burden of establishing the connection between the criminal conduct and plaintiff’s suitability for employment.” The Government brought this appeal, in which a division of this court unanimously reversed the district court’s judgment, and this court denied rehearing and suggestion for rehearing en banc. Plagued by doubts both as to the result in this case, and as to the breadth of the court’s opinion, I wish to explain briefly why I think the decision should be reconsidered en banc.

In Norton v. Macy, which involved the same statutory provision and regulation in question here, we said:

[W]e have recognized that, besides complying with statutory procedural requirements, the employer agency must demonstrate some “rational basis” for its conclusion that a discharge “will promote the efficiency of the service.”

The court’s opinion in the present case rests on the premise that the connection between Gueory’s crime and the efficiency of the Service was “clear” and therefore needed no further demonstration.

The absence of any analysis -by the agencies makes testing this premise difficult. Several possible job-related factors are suggested in the Government’s briefs. The court’s opinion does not rely on these, in deference presumably to the rule that reviewing courts “cannot ‘accept appellate counsel’s post hoc rationalizations for agency action’; for an agency’s order must be upheld, if at all, ‘on the same basis articulated in the order by the agency itself.’ ” That rule is fully applicable here, as the work-relatedness determination required by the statute is not amenable to “independent judicial ascertainment as [a] ‘[question] of law.’ ” I make use of the Government attorneys’ presentation only to suggest the basis of my view that the nexus in this case is less than obvious.

There is no assertion that Gueory presented a risk of danger to other employees. He had never before been convicted of a violent act, and his immediate supervisor, among others, declared a belief that “he would do bodily harm only in self defense.” Further, as the Government’s brief acknowledges, “the fact that the employee was not jailed means that the sentencing judge did not consider the man to pose a threat of further violence to the community.” The Government’s brief does suggest that the continued employment of Gueory might have lessened public respect for the agency, reducing its effectiveness, and discouraging new applicants for jobs. But Gueory’s crime, given the circumstances under which it was committed, was not the sort likely to provoke significant public indignation. Moreover, since Gueory’s position apparently involved no regular contact with the public served, there can be little support for an “embarrassment-to-the-agency” rationale discussed in Norton. On the contrary, it might even appear that keeping Gueory on, despite his conviction, would actually have enhanced the image of the postal service as an employer sensitive to the individual circumstances and potential of its employees. The Government’s brief also suggests that Gueory’s crime might have caused him to lose the respect of both superiors and subordinates, undermining his effectiveness. Gueory’s numerous and favorable references from superiors and coworkers and his unblemished work record before and after his conviction suggest the contrary.

Even if the Service might have stood initially on the fact of the crime alone, the strength of Gueory’s showing demanded something in the nature of a rebuttal from the agency, a reasoned presentation going directly to the efficiency issue. Judicial review of administrative decisions contemplates a showing by the agency sufficient to allow the courts “to determine if [the agency] acted within the scope of [its] authority and if [the agency’s] action was justifiable under the applicable standard.” The exact nature of the showing required depends, of course, on a number of variables, including the strength and complexity of evidence offered by parties before the agency. International Harvester Co. v. Ruckelshaus expressed this relationship through the concept of a shifting “burden of proof.” The concept broadly illuminates the responsibility of an agency in cases such as this, where evidence introduced by a party tends to refute a presumption created by administrative rule.

I find further support for this result in a detailed consideration of our decision in Norton. In that case we dealt with a dismissal based on homosexual activities under a portion of the same regulation covering “immoral conduct.” The agency had made at least some attempt to isolate a nexus, claiming that “continued employment of appellant might ‘turn out to be embarrassing to the agency.’ ” We met this contention with the following observation:

A claim of possible embarrassment might, of course, be a vague way of referring to some specific potential interference with an agency’s performance; but it might also be a smokescreen hiding personal antipathies or moral judgments which are excluded by statute as grounds for dismissal.

The latter possibility led us to hold that “the unparticularized and unsubstantiated conclusion that such possible embarassment threatens the quality of the agency’s performance is an arbitrary ground for dismissal.”

On its face, a conclusion of unfitness which does nothing more than restate the applicable standard seems hardly less arbitrary. Norton and its predecessor Scott v. M'acy are distinguished on the ground that in the present case there is no danger of the agency’s intruding its own moral judgment on the activities of its employee, attaching “a social stigma or ‘badge of infamy’ to that employee.” Gueory was found guilty of conduct which Congress itself had prohibited, and stigmatized through provision for criminal sanctions. “[I]f he wears any badge of infamy,” the court’s opinion proclaims, “he pinned it on himself by committing and then pleading guilty to a criminal homicide.” But as the Fifth Circuit has suggested in a similar case, agency action in response to “criminal conduct” carries its own potential for abuse. Dismissal may be administered as a penalty for criminal behavior, although by law it is the judiciary and not the Postal Service, or any other arm of the executive, which is charged with the punishment of criminal offenses. And when misused in this way, dismissal represents a strong sanction indeed. Combined with a criminal record, it not only disqualifies the affected employee from other jobs in Government but also severely damages his prospects for private employment.

This last point is related to the failure of both the Postal Service and the Civil Service Commission to consider Gueory’s dismissal in light of national policy covering the employment of “rehabilitated offenders.” It is not open to serious\dispute that the full rehabilitation of '.offenders requires legitimate employment. Yet until recently at least there was widespread resistance to employing ex-offenders in Government as well as in private business. In 1966, the Civil Service Commission responded with a government-wide hiring policy which directed agencies “to take into consideration the social and humane need for the former offender’s rehabilitation as well as the requirements of the position.” The Commission cannot — with any consistency at least — insist that this need be considered with respect to hiring decisions while allowing it to be ignored in decisions to dismiss. The statute does not make efficiency the sole criterion, and indeed the thrust of the Commission’s directive is that humanitarian goals may justify some risks to the smooth functioning of governmental machinery.

The district court sent the case back to the Civil Service Commission solely for a determination of whether the Postal Service had met its “burden of establishing the connection between the criminal conduct and the plaintiff’s suitability for employment.” If this remand were expanded to encompass “further proceedings,” as the Government contends it should have been under FCC v. Pottsville Broadcasting, Inc., the agencies might well* be able to present evidence and reasons in support of Gueory’s dismissal that would require us to affirm. But even granting the likelihood that the agencies could justify their actions in this case, I cannot ignore the broad implications of the court’s decision for all government employees who at one time or another in their careers happen to run afoul of the law.

The court was not unaware of these implications:

In Concluding, however, that this logical nexus exists between the interpretive regulation and the statutory standard, we do so with caution. We readily recognize that the nexus may become attentuated if an agency attempts to invoke the regulation for activities of a minor nature, such as a traffic citation.

This passage assumes, as does the entire opinion, that the nexus is solely a function of the crime involved. But the foregoing analysis indicates that the relationship is determined by a number of factors whose interrelationship can be quite complex. If no specification or analysis of these factors is to be required in these cases, the courts will simply not be in a position to review the critical question of whether the nexus is sufficient to support the regulation’s application. My great concern remains that this case sets a dangerous precedent for the automatic imposition of a penalty in addition to that already provided for in the criminal code.

      . Joint Appendix at 23 (hereinafter J.A.). Gueory was also suspended from active duty at t..at time pending action on the charge. J.A. at 23. That suspension was subsequently reversed by the Civil Service Commission Appeals Examining Office on the ground that no emergency existed to justify the suspension, since the Postal Service had retained him on active status for seven months after his arrest. J.A. at 65. The Appeals Office awarded him pay for the period from Ms suspension until the effective date of his removal.

      . The parties do not dispute that Gueory’s removal was based upon “criminal conduct,” not any of the other grounds in the interpretive regulation.

      . The fact that Gueory only received a suspended sentence and probation does not destroy the nexus. Firings based on criminal arrest even where the employee was subsequently acquitted have been upheld. See Polcover v. Secretary of Treasury, 155. U.S. App.D.C. 338, 477 F.2d 1223, 1231-1232 (1973) ; Finfer v. Caplin, 344 F.2d 38, 41 (2d Cir.), cert. denied, 382 U.S. 883, 86 S.Ct. 177, 15 L.Ed.2d 124 (1965).

      . Gueory was convicted of violating 22 D.C. Code § 2405. United States v. Gueory, Crim. No. 835-70 (D.D.C. Nov. 20, 1970), J. A. at 22.

      . Gueory’s appeal from the initial decision of the Regional Director was decided April 14, 1971, by the Assistant Postmaster General. App. 37. Gueory then appealed to the Civil Service Commission, where his case was reviewed first by the Appeals Examining Office, App. 61, and then by the Board of Appeals and Review, App. 91, from which there was no further right of administrative appeal.

      . App. 97 (Gueory’s testimony before the Civil Service Commission, as reproduced in the opinion of the Board of Appeals and Review).

      . In proceedings before the Civil Service Commission, the Government stipulated that Gueory’s employment record was “satisfactory.” App. 23.

      . App. 75.

      . There is no indication on the record that his effectiveness was diminished during this period. At his hearing before the Appeals Examining Office of the Civil Service Commission, Gueory characterized his experience this way:
      I had continued [after the killing] among the employees that I supervised and those that were supervising over me. I had a good, excellent relationship with them. They was all sympathetic to my problem at the particular time, pertaining to the incident. I saw no effect at all that it would have had. And really, from my own just personal opinion and personal point of view it seemed like I had a better relationship because I don’t want it to appear that the incident would make me have status with them; but they was sympathetic because they understood the area and the situation
      App. 46.

      . The Government offered nothing to contradict these testimonials.

      . Decision of April 14, 1971, App. 38. See Decision of August 11, 1971 (Civil Service Appeals Examining Office), App. 72.

      . Decision of August 11, 1971 (Civil Service Appeals Examining Office), App. 72; Decision of December 3, 1971 (Civil Service Commission Board of Appeals and Review), App. 101. See Decision of April 14, 1971, App. 38.

      . App. 72.

      . 135 U.S.App.D.C. 214, 417 F.2d 1161, 1164 (1969).

      . Brief for Appellant Robert E. Hampton, at 14-16.

      . FPC v. Texaco, Inc., 417 U.S. 380, 94 S.Ct. 2315, 2326, 41 L.Ed.2d 141 (1974), citing Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962); SEC v. Chenery, 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947).

      . Local 833, United Auto Workers v. NLRB, 300 F.2d 699, 705 (D.C.Cir. 1962), cert. denied sub nom. Kohler Co. v. NLRB, 382 U.S. 836, 86 S.Ct. 82, 15 L.Ed.2d 79 (1965), citing Chae-Sik Lee v. Kennedy, 111 U.S.App.D.C. 35, 294 F.2d 231, 234 (D.C.Cir.), cert. denied 368 U.S. 926, 82 S.Ct. 362, 7 L.Ed.2d 190 (1961).

      . App. 75.

      . Brief for Appellant Robert E. Hampton, at 16.

      . Supra note 8, at 1167.

      . For a discussion of the Postal Service’s humanitarian obligations with respect to ex-offenders under existing policies, see text accompanying notes 29-30 infra.

      . Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971). See Kennecott Copper Corp. v. EPA, 149 U.S.App.D.C. 231, 462 F.2d 846, 849 (1972); Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584, 597 (1971).

      . 155 U.S.App.D.C. 411, 478 F.2d 615, 643 (1973).

      . My quarrel with the majority in that case did not go to the concept itself but to its use as a screen for “a substantive evaluation of the Administrator’s assumptions and methodology” in an area involving complex technological issues. International Harvester Co. v. Ruckelshaus, supra, 478 F.2d at 651 (Bazelon, C. J., concurring in the result).

      . Although I do not think it is necessary to go beyond the guidelines of administrative review, due process considerations point toward a similar conclusion. The court’s opinion brushes past appellee’s constitutional arguments, which appear to be based exclusively on the Supreme Court’s irrebuttable presumption cases, with the observation that “even if the interpretive regulation set up a presumption, Gueory was given opportunity after opportunity, hearing after hearing to rebut it.” 167 U.S.App.D.C. - at -, 510 F.2d 1222 at 1227. The “irrebuttable presumption cases,” e.g., Board of Education v. LaFleur, 414 U.S. 524, 94 S.Ct. 791, 38 L.Ed.2d 702 (1974); Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), all involved the failure to provide any opportunity to refute the appropriateness of the classification mandated by rule or statute. But this analysis ignores the fundamental concern of LaFleur and cases like it; the lack of a determination sensitive to the circumstances of each case. Meeting this concern requires not only that the agency take evidence, allowing the individual to present his side, but also that it give full and reasoned consideration to that evidence in arriving at its result. “The Executive may have discretion in hiring or firing, but ‘[discretionary power does not carry with it the right to its arbitrary exercise.’ ” Scott v. Macy, 121 U.S.App.D.C. 205, 349 F.2d 182, 184 (1965). Without a further showing by the Service, I am simply unable to conclude that it has made a decision responsive to the contours of this particular case.

      . 417 F.2d at 1167.

      . Id.

      . Id.

      . 121 U.S.App.D.C. 205, 349 F.2d 182 (1965).

      . 167 U.S.App.D.C. -, 510 F.2d 1222 at 1226.

      . Id. 167 U.S.App.D.C. at -, 510 F.2d at 1226.

      . Embrey v. Hampton, 470 F.2d 146 (5th Cir. 1972). Despite its recognition of this danger, the Embrey court upheld the dismissal of a Postal Service employee who had been convicted of fraud in an application for an F.H.A. loan. In that case, as in the one before us, there were “reasons for leniency” which included 21 years of exemplary service with the Post Office and a decision by the district judge in the criminal proceeding not to impose sentence, but the court refused to intervene on the ground that the determination about the efficiency of the Service belonged to the agency not the courts. The principle is certainly a sound one, but it does not require the courts to rest content with agency reasons which are not sufficient to insure that a determination responsive to the individual facts of each has indeed been made. The same observation leads me to attach little weight to the decision in Vigil v. Post Office of the United States, 406 F.2d 921 (10th Cir. 1969), which upheld the firing of a postal worker convicted of homosexual acts.
      The court’s opinion also draws support from Rodriguez v. Seamans, 150 U.S.App.D.C. 1, 463 F.2d 837 (1972). Whatever else may be said about Rodriguez, the court in that case at least found itself able to say that the specific act of which appellant was accused— falsification of records — went to his “reliability, veracity, trustworthiness, ethical conduct and certainly affects the efficiency of the service.” Id. at 843. In this case, the court is unable, or unwilling, to suggest the exact nature of the connection between Gueory’s act and his fitness to work, although it does make general observations about the ways in which “a crime” might affect efficiency. 167 U.S. App.D.C. - at -, 510 F.2d 1222 at 1226.

      . See, e. g., Bromberger, Rehabilitation and Occupational Licensing: A Conflict of Interests, 13 Wm. & Mary L. Rev. 794, 799 (1972) (footnotes omitted):
      Two surveys of private employers, conducted 10 years apart [in 1966 and 1956], reveal that over 60 percent have considerable reservations about employing ex-offenders. These reservations vary from a total refusal to restricting the hiring of offenders for certain specific positions. Trade unions may deny membership, and in occupations where insurance bonding is customary, persons with criminal records are almost unemployable.

      . Civil Service Comm’n, Federal Personnel Manual, ch. 306, subch. 7 (Employment of Public Offenders). The Federal Personnel Manual is the official medium of the Commission for issuing its personnel regulations and instructions, policy statements, and related material on Government-wide personnel programs to other agencies.

      . 309 U.S. 134, 60 S.Ct. 437, 84 L.Ed. 656 (1940). Pottsville and Fly v. Heitmeyer, 309 U.S. 146, 60 S.Ct. 443, 84 L.Ed. 664 (1940), are cited for the proposition that if in the agency’s judgment “new evidence was necessary to discharge its duty, the fact of a previously erroneous denial should not bar it from access to the necessary evidence for correct judgment.” Id. at 148, 60 S.Ct. at 444.

      . 167 U.S.App.D.C. at -, 510 F.2d 1222 at 1226.