United States District Court, D. Colorado
T. BABCOCK, JUDGE.
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.
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.
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.
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
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.
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.
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.
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.
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.
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
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 ...