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Green v. Brennan

United States District Court, D. Colorado

September 13, 2017

MARVIN GREEN, Plaintiff,
MEGAN J. BRENNAN, Postmaster General, United States Postal Service, Defendant.



         This matter is before me on the Motion for Summary Judgment previously filed by Defendant on November 12, 2012. [Doc #90] As discussed below, I have renewed this motion based on Defendant's request in open court on August 24, 2017. [Doc #175] Oral arguments would not materially assist me in my determination. After consideration of the parties' briefs and attachments, and in light of the Tenth Circuit and Supreme Court decisions in this cases, I DENY the motion for the reasons stated.

         I. BACKGROUND

         Plaintiff, Marvin Green, filed this lawsuit against his former employer, the Postmaster General, United States Postal Service (the “Postal Service”) in 2010. In his Amended Complaint Plaintiff brought five claims for retaliation pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. [Doc #20] On October 28, 2011, I dismissed three of those claims, pursuant to Fed.R.Civ.P. 12(b)(6), based on Plaintiff's failure to exhausted his administrative remedies. [Doc #26] The dismissal of those three claims has been affirmed on appeal. Green v. Donahoe, 760 F.3d 1135, 1141 (10th Cir. 2014).

         The two remaining claims of retaliation were based on the Postal Service's acts of: 1) placing Plaintiff on emergency off-duty status, and 2) constructive discharge via forced retirement. On February 4, 2013, I granted the Postal Service's Motion for Summary Judgment and dismissed Plaintiff's two remaining claims. [Doc #90] I ruled that Plaintiff's claim based on his emergency placement into off-duty status must be dismissed because he could not make out a prima facie case of retaliation in that he could not show that a reasonable employee would have found the act to be materially adverse. I likewise dismissed Plaintiff's retaliation claim based on constructive discharge on the basis that this claim was untimely, and thus not administratively exhausted, because Plaintiff did not contact the Equal Employment Opportunity (the “EEO”) office at the Postal Service within 45 days of the matter alleged to be discriminatory.

         On appeal of my summary judgment ruling on the emergency placement claim, the Tenth Circuit reversed. See Green v. Donahoe, supra, 760 F.3d at 1146. The Court ruled that Plaintiff presented evidence sufficient to establish the second element of his prima facie case that the act of placing him on emergency placement was materially adverse. Id. On appeal of my summary judgment ruling on the constructive discharge claim, the United States Supreme Court reversed the entry of summary judgment in favor of the Postal Service for Plaintiff's failure to exhaust his administrative remedies. Green v. Brennan, ___ U.S. ___, 136 S.Ct. 1769, 195 L.Ed.2d 44 (2016). The Supreme Court ruled that the 45-day clock during which a plaintiff must contact the EEO office for a constructive discharge claim begins running only after the employee resigns. Accordingly, the Court remanded the matter to the Tenth Circuit to determine that date. Id. 136 S.Ct. at 1782 (“[h]aving concluded that the limitations period for [Plaintiff's] constructive-discharge claim runs from the date he gave notice of his resignation, we leave it to the Tenth Circuit to determine when this in fact occurred”).

         On remand from Supreme Court, the Tenth Circuit subsequently determined that Plaintiff did not resign until February 9, 2010, when he submitted his retirement paperwork to the Postal Service (as opposed to December 16, 2009, when he signed the agreement). Green v. Brennan, 669 F. App'x 951 (10th Cir. 2016) (unpublished). Because it is undisputed that Plaintiff contacted the EEO office at the Postal Service within 45 days of that date, the parties agree that Plaintiff's retaliation claim based on constructive discharge was timely filed, and he did not fail to exhaust his administrative remedies on this claim.

         Therefore, following the appellate process, Plaintiff now has two retaliation claims at issue based on the Postal Service actions of: 1) placing him on emergency off-duty status; and 2) forcing him into retirement resulting in constructive discharge. At a Status/Scheduling Conference on August 24, 2017, the Postal Services made an oral motion requesting that I review its previously-filed Motion for Summary Judgment in order to rule on its unaddressed arguments. Because I initially granted summary judgment in favor of the Postal Service, and dismissed all of Plaintiff's claims, I did not reach the other grounds raised by the Postal Service for granting summary judgment in its favor. I granted the Postal Services request and, as such, I now reach those unaddressed arguments in this order.


         The underlying facts of this case, stated in the light most favorable to Plaintiff, are as follows. Plaintiff is an African-American man who began working for the Postal Service in 1973. In 2002, Plaintiff was promoted to an EAS-22 level Postmaster at the Englewood, Colorado post office, which was in the Colorado/ Wyoming district. At the time of the pertinent events, Plaintiff had no disciplinary reports in his permanent file.

         In early 2008, Plaintiff applied for an EAS-24 Postmaster position in Boulder, Colorado. He was not hired. Shortly thereafter, on August 14, 2008, Plaintiff filed a formal complaint with the Postal Service's EEO office alleging that Gregory Christ - who was Plaintiff's immediate supervisor from 2008 through July 2009 and who was responsible for selecting the Boulder Postmaster - had not hired Plaintiff because of his race. This complaint was ultimately resolved through a settlement.

         Following this activity, Plaintiff's relationship with his supervisors deteriorated and tensions between them were high. On May 14, 2009, Plaintiff filed an informal EEO complaint alleging that Mr. Christ had again discriminated against him because of his race, and had retaliated against him because of his prior EEO activity, by threatening, demeaning and harassing him. Plaintiff filed a similar informal EEO complaint on July 17, 2009. In it he alleged that Mr. Christ and Jarmin Smith, who replaced Mr. Christ as Plaintiff's immediate supervisor in July 2009, had also retaliated against him because of his EEO activity related to the Boulder Postmaster position. The Postal Service's EEO office completed its investigation and informed Plaintiff that he could file a formal charge, but he did not do so.

         Then, in late November of 2009, Plaintiff received a certified letter from Charmaine Ehrenshaft who was the Postal Service's Manager of Labor Relations for the Colorado/Wyoming district. The letter instructed Plaintiff to appear for an investigative interview regarding allegations of non-compliance with the Postal Service's employee grievance procedures.

         On December 11, 2009, Ms. Ehrenshaft and David Knight, her supervisor and the Manager of Human Resources for the Postal Service's Colorado/Wyoming district, conducted the investigative interview. Mr. Knight asked Plaintiff about the grievance issues and about whether he intentionally delaying signing return receipts for grievances. In addition, he also asked Plaintiff about certain allegations that another Postal Service employee had levied against him. As the investigation with Mr. Knight and Ms. Ehrenshaft concluded, two agents from the Postal Service's Office of Inspector General (the “OIG”) entered the room. The OIG, an independent branch of the Postal Service, had initiated its own investigation into whether Plaintiff had intentionally delayed the mail - a criminal offense - based on a congressional inquiry related ...

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