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Goodson v. Brennan

United States District Court, D. Colorado

February 27, 2018

MEGAN J. BRENNAN, Postmaster General of the United States Postal Service, Defendant.


          Kristen L. Mix, United States Magistrate Judge

         This matter is before the Court on Defendant's Motion for Summary Judgment [#75][1] (the “Motion”), and Plaintiff's Motion for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment [#83] (the “Response”).[2] Plaintiff, who proceeds in this matter as a pro se litigant, [3] filed a Response [#83][4] 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 GRANTED.

         I. Summary of the Case

         Plaintiff 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 3.

         The 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.

         On 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.

         Plaintiff asserts the following specific allegations in support of his Title VII claims:[5]

         Allegation 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.

         Allegation 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.

         Allegation 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.

         Allegation 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.

         Allegation 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.

         Allegation 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.

         Allegation 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.

         Allegation 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.

         Allegation 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[6] to request leave, and scheduling him for investigative interviews. Oct. 30, 2012 Notice of Removal [#75-2] at 27-32.

         Ms. 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.

         The second Notice of Removal was issued on August 22, 2013, [7] by 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 33.

         Defendant 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.

         II. Standard of Review

         The 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.

         The 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).

         Only 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 record.
(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 ...

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