United States District Court, D. Colorado
ROBERT E. GOODSON, Plaintiff,
MEGAN J. BRENNAN, Postmaster General of the United States Postal Service, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Kristen L. Mix, United States Magistrate Judge
matter is before the Court on Defendant's Motion
for Summary Judgment [#75] (the “Motion”),
and Plaintiff's Motion for Summary Judgment and
Opposition to Defendant's Motion for Summary
Judgment [#83] (the
“Response”). Plaintiff, who proceeds in this matter
as a pro se litigant,  filed a Response [#83] in opposition to
the Motion, and Defendant filed a Reply [#84]. Pursuant to 28
U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c), the
Motion [#75] has been referred to the undersigned for a
recommendation. See [#79]. The Court has reviewed
the Motion, Response, Reply, the entire case file, and the
applicable law, and is sufficiently advised in the premises.
For the reasons set forth below, the Court respectfully
RECOMMENDS that the Motion [#75] be
Summary of the Case
asserts claims under Title VII for employment discrimination
based on his race (African American) and unlawful retaliation
due to his participation in protected activity. Am.
Compl. [#20] at 2. Plaintiff is a resident of Aurora,
Colorado, and is a former employee of the United States
Postal Service (“USPS”), where he worked at the
Hoffman Heights postal station. Id. at 2. Defendant,
who is the Postmaster General of USPS, is responsible for the
overall administration of USPS' operations nationwide.
Id. Plaintiff began his employment with USPS in May
of 1985. Id. Plaintiff alleges that he was
discriminated and retaliated against by his white
supervisors, Donna Flaherty (“Flaherty”) and
James Mayo (“Mayo”). Am. Compl. [#20] at
following summary construes the evidence in the light most
favorable to Plaintiff, as the nonmovant. See Ellis v.
J.R.'s Country Stores, Inc., 779 F.3d 1184, 1186
(10th Cir. 2015) (“We . . . recit[e] all
summary-judgment evidence in the light most favorable to . .
. the nonmovant.”). Following a physical altercation
between Plaintiff and another employee, David Fowler
(“Fowler”), on September 3, 2011, Plaintiff never
returned to work. Plaintiff's Interrogatory
Responses [#75-1] at 17; Plaintiff's Depo.
[#75-2] at 113-14. Plaintiff was approved for Family and
Medical Leave Act (“FMLA”) leave from November
22, 2011, to July 22, 2012, not to exceed 480 hours. FMLA
Designation Notice from U.S. DOL [#83] at 74. Plaintiff
alleges that he also used a large amount of extended sick and
annual leave that he had accumulated over his long tenure
with USPS. Am. Compl. [#20] at 8.
October 30, 2012, management officials Bessie Jones
(“Jones”) and Linda Delancy
(“Delancy”), issued a Notice of Removal proposing
to terminate Plaintiff's employment with USPS because he
had been classified as Away Without Leave
(“AWOL”). Plaintiff's EEO Investigative
Affidavit [#75-1] at 63. A union grievance was filed,
and Plaintiff's termination was reduced to a seven-day
suspension as a result of a pre-arbitration settlement
reached on April 2, 2013. See Pre-Arb. Settlement
[#75-2] at 26. Plaintiff did not return to work and a second
Notice of Removal was issued on August 22, 2013. August
22, 2013 Notice of Removal [#75-2] at 33.
asserts the following specific allegations in support of his
Title VII claims:
1: Soliciting a supervisor to make a false statement
against Plaintiff in order to subject him to discipline.
Plaintiff alleges that his former supervisor, Ms. Flaherty,
either encouraged Mr. Mayo to write a false statement - or
knowingly accepted Mr. Mayo's false statement - that
Plaintiff encouraged other African American mail carriers to
disregard instructions Ms. Flaherty gave regarding the
requirement to call-in if they were going to be on their
route past 6:00 p.m. EEO Form [#75-1] at 34. Mr.
Mayo's alleged false statement is in a handwritten note
that Plaintiff alleges was wadded up, thrown away, and
retrieved from the trash by another Postal employee.
Note [#75-2] at 9; Plaintiff's Depo.
[#75-2] at 99-100.
2: Giving Plaintiff improper and conflicting
instructions to cause him to later be subjected to discipline
for failure to follow instructions. Specifically, Plaintiff
alleges that on September 16, 2010, Ms. Flaherty improperly
instructed him to (1) “not complete MBU box
maintenance, ” (2) take a short-cut across the lawn of
a residence, which was unsafe, (3) “pike” his
mail as he was crossing the street, and (4) mark up mail in
the office, contrary to instructions he and the other
carriers had been given at a meeting. EEO Form
[#75-1] at 36.
3: Engaging in improper observations of Plaintiff while
he performed his job duties on his assigned mail routes
contrary to the provisions of the national labor agreement.
Plaintiff alleges that on September 16, 2010, he was subject
to being observed on his route improperly, which violated
USPS policies. EEO Form [#75-1] at 38. The alleged
improper conduct included that Plaintiff was observed in a
covert manner, without the notice required for a route
inspection, and that photographs were taken of
Plaintiff's vehicle. Id. at 36, 38.
4: Charging Plaintiff with failure to follow
instructions. On October 15, 2010, Ms. Flaherty issued an
Official Disciplinary Letter of Warning alleging that
Plaintiff parked in a “No Parking/Fire Lane” on
September 17, 2010, although he had been instructed not to
park there on September 16, 2010. Warning Letter
[#75-1] at 51-52. A union grievance was filed, after which
the Dispute Resolution Team ordered that the Warning Letter
be removed from Plaintiff's personnel file because the
Team agreed that management had made errors in recreating or
altering the documents that were the basis of the discipline.
Decision of Dispute Resolution Team [#75-1] at 56.
5: Encouraging Plaintiff's co-workers to engage in
conflicts with him with respect to overtime. Plaintiff
alleges that on November 4, 2010, Plaintiff overheard another
mail carrier ask Ms. Flaherty for overtime on Route 11.
EEO Form [#75-1] at 42. Ms. Flaherty responded that
Route 11 was already assigned to Plaintiff and that the two
mail carriers should “fight it out.” Id.
6: Hiding Plaintiff's mail scanner. Plaintiff
alleges that on December 1, 2010, Mr. Mayo and Ms. Flaherty
took and hid his mail scanner in order to negatively affect
Plaintiff's job performance and threaten him with having
to pay out of pocket for losing the scanner. EEO
Form [#75-1] at 44.
7: Improperly processing two FMLA requests for leave,
while properly processing the FMLA leave requests of two
white letter carriers. Plaintiff alleges that he needed to
take FMLA leave due to his worsening blood pressure
condition. Plaintiff's Interrogatory Responses
[#75-1] at 19. He filled out the necessary parts of the forms
and submitted them to Ms. Flaherty on February 11, 2011.
Id. Ms. Flaherty refused to fill out the paperwork
until she was ordered to do so on March 8, 2011, after
Plaintiff complained to the union and USPS management.
Id. at 19-20. Ms. Flaherty refused to follow
instructions with regard to Plaintiff's next three
written requests for FMLA as well. Id. at 20. Two
white mail carriers requested FMLA leave, and their requests
were properly processed by Ms. Flaherty. Id.
8: Improperly handling the September 2, 2011 incident in
which there was a physical altercation between Plaintiff and
Mr. Fowler, a white letter carrier. Mr. Fowler punched
Plaintiff in the back, and then Plaintiff lightly hit Mr.
Fowler in the stomach to demonstrate how Mr. Fowler had hit
him. Police Report [#83-1] at 41-42. Ms. Flaherty
either called or ordered someone to call the Aurora Police
Department. Plaintiff's Interrogatory Responses
[#75-1] at 17. Ms. Flaherty, acting contrary to USPS'
established protocol, directed Plaintiff to leave the
building to deliver mail, while directing Mr. Fowler to go to
an office within the building. Id. Plaintiff asserts
that Mr. Mayo should have handled the incident because Mr.
Mayo was Plaintiff and Mr. Fowler's direct supervisor.
Id. at 18. Plaintiff also asserts that Ms. Flaherty
should not have directed Plaintiff to leave the building, and
believes that she did so in order to make it appear to the
police that Plaintiff “fled the scene.”
Id. Because Plaintiff was suspicious of Ms.
Flaherty's instructions, Plaintiff called the Aurora
police, who ordered him to return to the postal station.
Id. Plaintiff complied. Id. Both parties
gave their statements to the police, and no charges were
filed because Plaintiff and Mr. Fowler refused to prosecute.
Police Report [#83-1] at 42.
9: Terminating Plaintiff based on incorrectly
classifying him as AWOL when he was on previously approved
sick, annual, or FMLA leave. Ms. Jones and Ms. Delancy issued
the first Notice of Removal on October 30, 2012, which
charged Plaintiff with being AWOL. EEO Form [#75-1]
at 63; Oct. 30, 2012 Notice of Removal [#75-2] at
27. The Notice of Removal states that Plaintiff incurred 728
hours of unscheduled absences between June 2, 2012, and
August 11, 2012, and from August 20, 2012, to October 18,
2012. [#75-2] at 28. The Notice of Removal summarized several
letters sent to Plaintiff over a period of several months.
For example, Plaintiff was notified in a June 1, 2012 letter
from Andy Weaver (“Weaver”) that he had 72 hours
to submit acceptable medical documentation to the “GMF
Medical Unit, ” or he would be placed in AWOL status
effective June 2, 2012. June 1, 2012 Letter [#75-2]
at 15-16. The letter also advised Plaintiff that his FMLA
leave had been exhausted on March 9, 2012. Id.
Plaintiff responded on June 6, 2012, that he believed that he
had already provided the proper documentation to the proper
place, but would fax the documentation once more. [#75-2] at
17. Mr. Mayo sent a letter on June 14, 2012, stating that the
GMF Medical Unit had not received acceptable documentation
covering Plaintiff's absences from March 20, 2012, to the
date of the letter and he was therefore in AWOL status.
[#75-2] at 18. He was also set for an investigative
interview. Id. Plaintiff responded with a letter
dated June 18, 2012, stating that he believed that Mr.
Mayo's representation that the GMF Medical Unit had not
received his documentation was false and that he would not
attend the “bogus baseless investigative
interview.” [#75-2] at 21. Further letters were
exchanged advising Plaintiff that his FMLA leave had expired,
that he was required to use the ERMS system to request leave,
and scheduling him for investigative interviews. Oct. 30,
2012 Notice of Removal [#75-2] at 27-32.
Jones issued a letter to Plaintiff dated October 1, 2012,
asking Plaintiff to provide documentation of his status,
instructing him to report for an investigative interview on
October 5, 2012, and warning that failure to follow the
instructions might result in disciplinary actions including
removal. Oct. 30, 2012 Notice of Removal [#75-2] at
30. Plaintiff responded by letter on October 3, 2012, stating
that he would not be attending the “bogus interview on
October 5, 2012, ” and Ms. Jones issued the Notice of
Removal October 30, 2012. Id. at 72-73. Plaintiff
filed a grievance and a settlement was reached, giving
Plaintiff a seven-day suspension in lieu of removal. See
Pre-Arb. Settlement [#75-2] at 26.
second Notice of Removal was issued on August 22, 2013,
management officials Ms. Jones and Anthony Kidd. Ms.
Jones' EEO Supp. [#75-2] at 79; August 22, 2013
Notice of Removal [#75-2] at 33. Ms. Jones represents
that Plaintiff's employment was terminated “due to
his failure to have regular attendance; he was AWOL.”
Ms. Jones' EEO Supp. [#75-2] at 79 The Notice of
Removal states that Plaintiff incurred 448 hours of
unscheduled absences between May 28, 2013, and August 9,
2013. August 22, 2013 Notice of Removal [#75-2] at
seeks entry of summary judgment in her favor on each aspect
of Plaintiff's claims, on the grounds that the above
allegations either do not constitute adverse employment
actions, do not give rise to an inference of discrimination,
or that Defendant's reasons for taking such actions were
non-discriminatory. See Motion [#75] at 7.
Standard of Review
purpose of a motion for summary judgment pursuant to
Fed.R.Civ.P. 56 is to assess whether trial is necessary.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). An issue is genuine if the evidence is such that a
reasonable jury could resolve the issue in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A fact is material if it might
affect the outcome of the case under the governing
substantive law. Id.
burden is on the movant to show the absence of a genuine
issue of material fact. Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing
Celotex, 477 U.S. at 323). When the movant does not
bear the ultimate burden of persuasion at trial, the
“movant may make its prima facie demonstration [of the
absence of a genuine issue of material fact] simply by
pointing out to the [C]ourt a lack of evidence for the
nonmovant on an essential element of the nonmovant's
claim.” Id. at 671. If the movant carries the
initial burden of making a prima facie showing of a lack of
evidence, the burden shifts to the nonmovant to put forth
sufficient evidence for each essential element of his claim
such that a reasonable jury could find in his favor. See
Anderson, 477 U.S. at 248; Simms v. Okla. ex rel.
Dep't of Mental Health & Substance Abuse Servs.,
165 F.3d 1321, 1326 (10th Cir. 1999), abrogation recognized
by Eisenhour v. Weber Cty., 744 F.3d 1220, 1227
(10th Cir. 2014). Conclusory statements based merely on
conjecture, speculation, or subjective belief are not
competent summary judgment evidence. Bones v. Honeywell
Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). The
nonmoving party's evidence must be more than “mere
reargument of [his] case or a denial of an opponent's
allegation” or it will be disregarded. See 10B
Charles Alan Wright, et al., Federal Practice and Procedure
§ 2738 at 356 (3d ed. 1998).
documents that adhere to the evidentiary requirements of
Fed.R.Civ.P. 56 may be considered for purposes of summary
judgment. Rule 56(c) provides that:
(1) A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials[.] ...
(3) Materials Not Cited. The court need consider only the
cited materials, but it may consider other materials in the
(4) Affidavits or Declarations. An affidavit or declaration
used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in
evidence, and show that the affiant or ...