Postal Manager’s Demotion for Dropping His Pants Upheld
Filed under: legal cases, postal, postal managers, postal news
The United States Court of Appeals, Federal Circuit ruled against former EAS-24 Postal Manager for unacceptable conduct.
Natty joined the Postal Service in 1990. By June 2010, he served as an EAS-24 Manager of Distribution Operations (MDO), supervising a total workforce of 130 employees, including six subordinate supervisors. On June 19, 2010, the agency demoted Natty to a PS-04 Part-Time Flex Mail Handler based on a finding of unacceptable conduct. Natty appealed his demotion and the Administrative Judge (“AJ”) found that Natty’s comments about race and sex, and the intentional dropping of his pants, supported the unacceptable conduct charge. Natty v. U.S. Postal Serv., No. SF-0752-10-0847-I-1 (M.S.P.B. Oct. 29, 2010). The AJ also found the agency’s action timely and Natty’s demotion to a non-managerial position within the agency’s discretion. Id. The AJ’s decision became the final decision of the Board after the Board denied Natty’s petition for review. Natty v. U. S. Postal Serv., No. SF-0752-10-0847-I-1 (M.S.P.B. May 6, 2011). Natty timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). Read more
Appeals Court Upholds Firing of Acting Postal Supervisor (204B) For Timecard Fraud
Acting Postal Supervisor was terminated for falsifying timecard but not his female boss (Postmaster)
Charles Wilcher, a 204B (acting) supervisor from the letter carrier craft, claimed he was “working” on July 5, 2006 when he spent the day with his Postmaster . She was also accused of getting paid for July 5, 2006 even though it was alleged that she did not actually work that day. She was initially demoted to the position of Supervisor of Customer Service, but was subsequently returned to her position as Vineland Postmaster. Eight months after the incident Wilcher was issued a Notice of Removal. After a grievance filed by the National Association of Letter Carriers (NALC) , a three-day arbitration hearing and two formal complaints filed with the EEOC, his removal was upheld. The District and Appeals Courts upheld Wilcher’s removal finding no discrimination. Read more
USPS Tests Are Secret Under FOIA
An applicant rejected for hire as an Electronic Technician, PS-11 was denied the right to visually review his test documents. The U.S. District Court in Pennsylvania wrote:
Plaintiff attempts to concoct a “scenario” to circumvent said exemptions. Plaintiff states that he “does dispute that the cited law [by the USPS] totally preclude[s] the Plaintiff’s right to seek a review of the test given and answers made to it by the Plaintiff.” To that end, Plaintiff suggests that he be permitted to review the documents in camera, with an appropriate court officer, “with no capability of the Plaintiff to copy or otherwise reproduce the very information he requested.” This, Plaintiff believes, would provide him with “his day in court” while still preserving the USPS’s testing protocols without the fear of compromise. Plaintiff cites no law for this “scenario” and I find no support in the law for it either. Permitting a review of the documents visually is, in essence, the same result as producing the document in hard copy. Consequently, I find that dismissal is warranted.
Here is some background from the case:
Thomas J. Donegan registered with the USPS to undergo an examination to determine his eligibility for hire as an “Electronic Technician, PS-11.”. The test was administered on June 11, 2008. Donegan did not pass the test and sought to see the test results as part of a Freedom of Information Act, 5 U.S.C. §552, (“FOIA”) request. Donegan’s FOIA request was denied. As a result, Donegan filed the “Complaint for Injunctive Relief” against USPS for violation of the FOIA for wrongful withholding of agency records seeking the immediate release of the test, results and the correct answers. (ECF No. 1).
USPS filed a Motion to Dismiss the Complaint arguing that the records were properly withheld pursuant to Exemptions 2, 3 and 5 of the FOIA. (ECF Nos. 5 and 6).
court footnote: Exemption 2 authorizes an agency to refuse a FOIA request when the materials sought relate solely to the internal personnel rules and practices of an agency. 5 U.S.C. §552(b)(2). Exemption 3 authorizes an agency to refuse a FOIA request when the materials sought are expressly exempted from disclosure by another statute. 5 U.S.C. §552(b)(3). Exemption 5 authorizes an agency to refuse a FOIA request when the materials sought are inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency. 5 U.S.C. §552(b)(5).
The USPS asserted that the documents were properly withheld pursuant to Exemptions 2, 3 and 5.2 (ECF No. 6). In response, Donegan stated:
The Defendant has provided to this Honorable Court a Brief with supporting law that in essence tells this court that the information requested does not have to be provided to the Plaintiff because it is specifically exempted as a personnel record, is exempted specifically by statute and is specifically exempted as privilege information.
In candor to this tribunal, Plaintiff does not through counsel dispute that the law cited by the Defendant is appropriately provided to the court….
In essence, therefore, Plaintiff does not dispute that the documents were properly withheld pursuant to the Exemptions. I agree. See, Kaganove v. E.P.A., 856 F.2d 884 (7th Cir. 1988)(rating plan of EPA was held exempt under FOIA because it would allow future applicants to embellish job qualifications); Patton v. FBI, 626 F.Supp. 445 (M.D. Pa. 1985)(holding testing material falls within §552(b)(2) FOIA exemption); Robinett v. U.S.P.S., No. Civ. A. 02-1094, 2002 WL 1728582 (E.D. La. July 24, 2002)(information concerning criteria that postal service used to evaluate job applications was exempt from disclosure under the Postal Reorganization Act and therefore falls within Exemption 3); Lewis v. E.P.A., Civ. A. No. 06-2660, 2006 WL 3227787, *4 (E.D. Pa. 2006)(holding documents designed to assist in employee election process fall within Exemption 5 of FOIA). As a result, I find that the USPS properly withheld the documents pursuant to Exemption 2, 3 and 5.
THOMAS J. DONEGAN v. UNITED STATES POSTAL SERVICE
United States District Court, Western District, Pennsylvania.
Opinion filed: March 17, 2011
Postal Supervisor Loses Lawsuit on Hostile Work Environment
Filed under: legal cases, owcp, postal, postal news, postal supervisors, usps
Postal Supervisor Claimed A Hostile Work Environment aggravated his medical condition and USPS failed to investigate.
The following facts are based upon the allegations in John Pell’s amended complaint filed in the United States District Court and information from the EEOC case.
Pell is a former employee of the USPS who worked at the Framingham, Massachusetts Post Office. In 2003, while employed as a supervisor at the USPS, Pell was diagnosed with Post-Traumatic Stress Disorder (“PTSD”) and a psychiatric condition called Transient Global Amnesia (“TGA”). After these initial diagnoses, he remained out of work until his doctors released him to return to work. Pell’s doctors allowed him to return to work in 2005 on the condition that the USPS provide “strict enforcement” of USPS regulations and policies in Pell’s work environment, specifically those regulations and policies that prohibited workplace threats, harassment, bullying, intimidation and that contain a “zero tolerance” policy for unacceptable levels of workplace stress. Pell claims that he sought such “strict enforcement” as a “reasonable accommodation” [under the Rehabilitation Act] of his condition to enable him to perform the essential duties of his job. From the time he returned to work at some point in 2005 until September 5, 2006, Pell alleges the USPS strictly enforced USPS regulations and policies in his work environment and as a result he was able to perform all of the essential functions of his job.
However, on September 5, 2006, Framingham Postmaster William Harris approached Pell at the beginning of his shift, accused Pell of sexual harassment, and told him he had three choices: (1) accept a demotion; (2) transfer out of the Framingham Post Office; or (3) “I’ll throw you out.” Pell alleges that Harris’ conduct towards him violated USPS regulations and policies against bullying, harassment, threats, and intimidation. As a result of Harris’ conduct towards him, Pell suffered a TGA episode, left the workplace and has not returned to work since that day. He has since retired from the USPS.
Pell was unhappy with the USPS’s handling of his complaint about the September 5, 2006 incident. Pell alleges that, in connection with a worker’s compensation claim he filed when he was out of work, Harris completed two forms related to the September 5, 2006 incident that were inconsistent and incomplete. Pell also claims that Harris failed to investigate the September 5, 2006 incident fully because he did not interview Pell or other witnesses. Pell further alleges that he requested that Harris be investigated for violating USPS policies and regulations in connection with the September 5, 2006 incident, but that USPS District Manager John Powers chose not to do so. In early 2008, Pell reported Harris’ violations of USPS policies and regulations to USPS Northeast Area Vice President Haney , but Haney refused to investigate Harris’ conduct and refused to refer the alleged violations to the Office of the Inspector General .
Pell sought EEO counseling on March 31, 2008 — nearly a year and a half after the alleged September 5, 2006 incident of discrimination. In contacting the EEO, Pell indicated that the date of the alleged discriminatory incident was March 4, 2008 — the date Pell became aware that Haney would not refer the alleged violations of USPS policies and regulations to OIG.
After receiving the EEO notice of right to file a formal complaint on June 23, 2008, Pell filed a complaint with the EEO on July 8, 2008. On July 28, 2008, the EEO dismissed Pell’s complaint for two reasons: (1) failure to state a claim because the Department of Labor is the proper forum to address the basis of Pell’s then pending worker’s compensation claim; and (2) untimely EEO counselor contact because Pell failed to contact an EEO counselor within 45 days of the September 5, 2006 incident.
Pell then timely appealed the dismissal of his EEO complaint to the EEOC Office of Federal Operations. The OFO upheld the Postal Service’s dismissal:
The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993).
In this matter, we find that the instant complaint is a collateral attack on a proceeding before the Department of Labor, and the proper forum for complainant to raise any challenges regarding the agency’s
improper investigation of his injury is during that proceeding itself. The Commission agrees with the agency that complainant fails to state claim. See Hannon v. Treasury, Request No. 05A01149 (May 8, 2003).
After a review of the record, including statements and arguments not addressed herein, based on the reasons above, we find that the agency properly dismissed the complaint.
Reading the allegations in the Amended Complaint in the light most favorable to Pell, his claim is likewise barred by the Rehabilitation Act’s administrative exhaustion requirement. Pell alleges that Harris’ conduct on September 5, 2006 amounted to discrimination based on Pell’s psychiatric disability and caused Pell to suffer a recurrence of his TGA, forcing him to leave the workplace that very day. Like the plaintiff in Roman-Martinez who was required to contact the EEO counselor within 30 days of the alleged discriminatory actions, Pell was required to contact an EEO counselor within 45 days of the September 5, 2006 incident.2 It is uncontested that Pell failed to contact an EEO counselor within this required 45 day period and, therefore, his claim is barred for failure to exhaust his administrative remedies.
Pell does not argue that Haney’s March 4, 2008 denial of any further investigation of the September 5, 2006 incident constituted a new discriminatory action and thus became the triggering event for commencing EEO procedures nor would such argument be plausible on the basis of the facts alleged in the Amended Complaint. The Supreme Court has held, “the time for filing a charge of employment discrimination with the [EEOC] begins when the discriminatory act occurs . . . . A new violation does not occur, and a charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination.” Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 628 (2007) (superceded on other grounds by Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5). “[T]he proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts become the most painful.”
Even read in the light most favorable to Pell, March 4, 2008 was the date on which he learned that the USPS would not further investigate or refer his claim that the September 5, 2006 incident was discriminatory. That is, the September 5, 2006 allegedly discriminatory act triggered Pell’s obligation to contact the EEO
Having ruled that this matter must be dismissed because of Pell’s failure to exhaust administrative remedies, the Court need not reach Defendants’ further argument that dismissal under Fed. R. Civ. P. 12(b)(6) is also warranted because he has failed to establish a prima facie case of employment discrimination based on a disability.
John Pell vs JOHN E. POTTER, POSTMASTER GENERAL and U.S. POSTAL SERVICE, March 1, 2011
Court: NALC Must Go To Arbitration To Enforce Grievance Settlements With USPS
The problem of USPS ignoring their settlement agreements is a big one. Courts, like the one below, are mandating that unions take their disputes to arbitration before asking for enforcement in court, even when the dispute has already been settled multiple times! Unions have to take their disputes all the way to arbitration or the courts won’t enforce them. The NLRB has taken the same position. More and more of the grievances I see being filed are asking for enforcement of a previous grievance settlement, such as payment of back pay. It is getting ridiculous as resolutions drag out to a year or more. Extreme cases are taking three years! Employees are growing impatient and angry and union leaders are feeling the heat.
In the case below, NALC Branch #155 (Illinois) filed a lawsuit claiming USPS had continously..
…..failed and refused to provide information requested by Branch 155 in a timely manner so that it may adequately represent its members as required by the National Labor Relations Act of 1935 (“NLRA”).
As a result of Defendant’s continuous and on-going usurpations of the National Agreement, Branch 155 has been forced to file multiple grievances in accordance with
the National Agreement’s grievance procedure as well as repeated unfair labor practice charges with the National Labor Relations Board, Region 14 (“NLRB”) against the Defendant. These unfair labor practice charges filed with the NLRB have been filed as far back as 2002, 2003, 2004, 2006, and 2010 for violating the collective bargaining
agreement by failing to timely provide requested information.
As a result of Defendant’s continued refusal to abide by the terms and conditions of the National Agreement, not only as against this Plaintiff herein but as against multiple other local unions affiliated with the National Letter Carriers Association across the United States, the General Counsel of the National Labor Relations Board in Washington, D.C., issued Memorandum M 03-18 recognizing the Defendant’s continued refusal to provide information and stated that in the wake of the number of reoccurring cases against the Defendant for failure to provide requested information, “all information requests should receive prompt and responsive replies…”
As a result of the Defendant’s continued refusal to abide by the terms and conditions of Articles 17.3 and 31 of the National Agreement, the memorandums of Vice President of
Labor Relations, John E. Potter and Chief Operating Officer and Executive Vice President (1998) , Patrick R. Donahoe (2002), as well as the covenants agreed to in Memorandum M 03-
18, Plaintiff’s members continues to suffer irreparable harm.
But the court was not persuaded by NALC’s arguments. The court ruled:
Federal Rule of Civil Procedure 12(c) permits a party to move for judgment after the complaint and answer have been filed by the parties. See FED. R. CIV. P. 12(c); Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009). After reviewing the pleadings, the Court finds that Plaintiff has failed to satisfy a condition precedent to filing this action -specifically, it failed to exhaust the grievance and arbitration procedures established in the applicable collective bargaining agreement.1 Plaintiff did not pursue its grievances through to arbitration as required under the agreement, and the Court does not read an implied claim for into the statute governing judicial enforcement, 29 U.S.C. § 185. Plaintiff asks the Court to read the terms of the agreement and consider whether they are reasonable in light of directives issued by Defendant’s officials and manuals promulgated by the parties. But this Court cannot rewrite the parties’ agreement, and under the agreement, Plaintiff is required to arbitrate Defendant’s failure to comply with the settlement agreements.
While the Court does have subject matter jurisdiction over an action seeking judicial enforcement of a contract between the Postal Service and a labor organization, see 39 U.S.C. § 1208, once this Court determines that an issue is arbitrable and, as here, that arbitration procedures were not exhausted, it can go no farther in reviewing the dispute. See generally Niro v. Fearn Int’l Inc., 827 F.2d 173, 175-76 (7th Cir. 1987). Accordingly, Defendant’s motion for judgment on the pleadings (Doc. 30) is GRANTED, and this action is DISMISSED without prejudice to Plaintiff pursuing its claims through the grievance process.
National Association Of Letter Carriers vs United States Postal Service, decided February 8, 2011
USPS Memos On Compliance With Arbitration Awards
Postal Mail Handler President Accused of Defrauding Postal Workers
A Fort Worth federal grand jury indicted a former postal worker and union leader who allegedly defrauded postal employees of more than $225,000.
John P. Woods Jr., 68, of Arlington was a U.S. Postal Service employee and elected president of the Fort Worth branch of the National Postal Mail Handlers Union before he was charged with 25 counts of wire fraud, according to a news release from the U.S. Attorney’s Office.
The union was located at the Jack D. Watson Processing and Distribution Center in Fort Worth where managers resorted to using other Postal Service employees to handle mail when the center was overcome with a high volume of mail, the release said.
The is in an apparent violation of a national agreement between the two entities, according to the release.
Woods helped to file class-action lawsuits against the Postal Service, which in turn agreed to compensate mail handlers, the release said.
Woods is accused of creating and operating a scheme in which more than $225,000 of the settlements would be paid to him and his chief stewards between January 2006 and February 2007, according to the indictment.
Read more: Star Telegram
Press Release from the U.S. Attorney’s Office, Northern District Of Texas
FORT WORTH, Texas —A federal grand jury in Fort Worth returned an indictment this week against John P. Woods, Jr., 68, of Arlington, Texas, charging him with 25 counts of wire fraud, announced U.S. Attorney James T. Jacks of the Northern District of Texas. It is expected that Woods will self surrender within the week.
According to the indictment, Woods was a U S. Postal Service employee and elected branch president of the Fort Worth branch of the National Postal Mail Handlers Union, located at the Jack D. Watson Processing and Distribution Center (P&DC). Woods received a salary from the Postal Service but performed only union business. As union branch president, Woods represented more than 300 mail handlers who worked at the P&DC
Postal Service managers at the P&DC experienced a high mail volume and resorted to using other Postal Service employees on a continuing basis to perform mail handler work, in apparent violation of the national agreement between the Postal Service and the union. Woods caused numerous grievances to be filed against the Postal Service, who agreed to compensate mail handlers.
Between January 2006 and February 2007, Woods devised and operated a scheme to defraud mail handlers at the P&DC, and to obtain for himself and his chief shop stewards more than $225,000, by causing most of the grievance settlements to be paid to Woods and his chief stewards.
An indictment is an accusation by a federal grand jury, and a defendant is entitled to the presumption of innocence unless proven guilty. If convicted, however, Woods faces a maximum statutory sentence of 20 years in prison and a $250,000 fine, per count. In addition, restitution could be ordered.
The case is being investigated by the U.S. Postal Service Office of Inspector General. Special Assistant U.S. Attorneys William A. Keefer and Katherine H. Reilly are in charge of the prosecution.
Postal Worker Loses Lawsuit Claiming USPS Violated Privacy Act And Fraud On the Court
Filed under: legal cases, postal, postal news, privacy, usps
The following is PostalReporter’s summary of several cases related to the same issue:
Darrell Coburn sued the United States Postal Service claiming that the Privacy Act, 5 U.S.C. § 552a, was violated when records from the file on his administrative complaint of discrimination were disclosed internally to several management employees. USPS was seeking evidence of a management employee representing a craft employee which is against postal policy. After a bench trial the district court found that the Postal Service did not make any unauthorized disclosure and entered judgment against Coburn. Coburn appealed to the Court of Appeals which upheld the District Court’s decision. Coburn filed again arguing that the Postal Service committed fraud by submitting an alleged “bogus” document to the court. The court ruled that Coburn was untimely and therefore the Court of Appeals decision stands.
This legal saga started when Darrell Coburn a 19-year Forest Park, IL letter carrier was placed on Emergency Off-Duty status on January 27, 2004.
On February 9, 2004, Coburn was issued a Letter Of Warning for conduct unbecoming of a postal employee which occurred on January 27, 2004.
On February 11, 2004 Coburn filed National Labor Charges against the Postal Service and Former Forest Park Postmaster Migna Sanchez for unfair labor practices and whistle-blowing activity..
On February 12, 2004, Coburn was issued a 14-day suspension for “Failure to Properly Secure A Postal Vehicle.”
On February 19, 2004, Coburn was told that on February 23, 2004, he was being sent for letter carrier re-training at another Post Office.
In 2005, Coburn filed an administrative complaint alleging employment discrimination. Coburn was told that he could select another employee to represent him during the administrative process. However, Postal Service policy precludes management employees from representing craft employees like Coburn, a letter carrier. In spite of the policy, Coburn enlisted his friend Cecil Watson, a management employee, who knew about the policy from his supervisor. When the supervisor later heard that Watson had served a summons on the United States Attorney in a lawsuit filed by Coburn against the Postal Service, he asked a postal official to investigate whether Watson was violating the policy against representing craft employees.
The postal official contacted the personnel employee with custody over the file from Coburn’s administrative complaint, who turned the file over to the postal official. From that file the postal official culled six documents referring to Watson as Coburn’s personal representative.
The postal official turned those documents over to Watson’s supervisor, who cited them in a proposal to his supervisor that Watson be fired. It is these disclosures that Coburn alleged USPS violated the Privacy Act.
In September 2008, after a bench trial on Coburn’s claims, the district court granted judgment for the Postal Service. It found that the employees lawfully viewed Coburn’s records under an exception to the Privacy Act that permits access when employees have a “need for the record[s] in the performance of their duties.”
The Privacy Act generally precludes an agency from disclosing records pertaining to an individual who has not consented in writing to the disclosure. 5 U.S.C. § 552a(b). But several categories of disclosures are explicitly authorized in the statute, including disclosures “to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties.” The district court found that the disclosures here fit this exception.
Coburn countered that his records were disclosed to persons who did not maintain them, and thus the disclosures fell outside the “need to know” exception. But the court said that Coburn misread subsection (b)(I). It is enough that the persons to whom disclosure is made are employees of the agency that maintains the records and that those employees have a need for access; disclosure under this subsection is not limited to the employees responsible for maintaining the records.
Coburn also argued that the Postal Service employees who obtained his records did not need to access those records in the course of their duties. To show this, he cites a vacancy announcement for the position held by the postal official, who obtained the file from the personnel employee and passed along six documents to Watson’s supervisor after first clearing that action with agency counsel. Coburn correctly notes that the vacancy announcement does not mention as a job duty investigating allegations of employment discrimination. But a vacancy announcement would not be comprehensive, and, regardless, the employees to whom the records were disclosed testified that their duties did include investigating alleged misconduct by management employees. The district court believed them, and our job on appeal is not to reweigh the credibility of trial witnesses. Coburn does not otherwise fault the scope or manner of the disclosures, so our analysis may end here.
In February 2010, nearly 17 months after the district court entered its judgment, Coburn filed a motion to vacate in light of new evidence suggesting that the Postal Service and its counsel engaged in fraud on the court. The Postal Service committed fraud, Coburn argued, by using a misleading memo at his bench trial to justify accessing his file. The memo explains that Postal-Service policy bars management employees (such as Watson) from representing craft workers (such as Coburn) in administrative proceedings against the Postal Service. But such memos, Coburn contended, are informational only and should not be treated as official policy of the Postal Service, and in support he pointed to a 1989 employee manual that he characterizes as newly discovered evidence. He also cited a 1996 employee handbook listing five conflicts of interest for employee representation, none of which stated that management employees could not represent craft employees. Therefore, he concluded, Watson did not engage in wrongdoing by assisting him with his complaint, and Postal-Service employees had no need to access his administrative file. The district court denied Coburn’s motion, determining that the one-year statute of limitations under Rule 60(b)(3) had passed and that Coburn did not allege the egregious fraud on the court necessary to succeed under Rule 60(d)(3).
Coburn does not challenge the district court’s finding that his motion under Rule 60(b)(3) was time-barred. Such motions must be brought within one year of the judgment the party seeks to vacate, and Coburn was untimely in waiting almost 17 months after the judgment to file his motion.
Coburn argues that the district court erred in finding that the Postal Service did not defraud the court because, he contends, it overlooked the Postal Service’s “bogus document”—the memo regarding Postal-Service policy. Fraud on the court, which is not subject to the one-year statute of limitations, may include inserting fraudulent documents into the record, but Coburn has not pointed to any evidence to suggest that the memo itself—or the way the Postal Service used it at trial—was fraudulent. Nor has he explained how the mere existence of the 1989 manual undermines the memo’s authenticity.
Coburn also asserts for the first time on appeal that counsel for the Postal Service engaged in fraud by allowing witnesses to perjure themselves through testimony about the memo. But he waived that argument when he did not present it to the district court. And even if he had not, his argument would still fail because here too he does not point to anything in the record to support his claim. Because the purported fraud was not “conduct that might be thought to corrupt the judicial process itself,” the district court properly denied the motion.
We add, however, that a plaintiff can win a Privacy Act suit for damages only if he demonstrates that the violation was intentional or willful. See 5 U.S.C. 552a(g)(4); Jacobs v. Nat’l Drug Intelligence Ctr., 423 F.3d 512, 522 (10th Cir. 2005); Moskiewicz v. U.S. Dep’t of Agric., 791 F.2d 561, 564 (7th Cir. 1986). Even if the disclosures had been unauthorized, the employees who were involved reasonably believed that they were allowed access to Coburn’s file as necessary to investigate possible misconduct by Watson. The district court,in its findings of fact, made clear that it believed there was no intent to violate the Privacy Act, and that finding is not clearly erroneous. See Remapp Int’l Corp. v. Comfort Keyboard Co.,No. 08 3282, 2009 WL 750222, at *3 (7th Cir. Mar. 24, 2009). Accordingly, even if there had been a technical violation, Coburn still would not recover.
Appeals Court Keeps Florida Letter Carrier’s Age Discrimination Suit Alive
Filed under: legal cases, letter carriers, postal, postal news, usps
According to the Court records: Mark Comerford is a male person, over the age of 50 residing in Colorado, but at the time of some of the acts complained of was residing within the area of the United States District Court for the Middle District of Florida, Tampa Division, in Manatee County.
Comerford has been employed by USPS as a carrier for over 25 years. Comerford was working in Tallahassee, Florida. He had “traded” jobs with another carrier based on Postal Service regulations and the National Collective Bargaining Agreement, by making a request to the new Postmaster, and when approved goes to the new duty station. He did this because he wanted to come to Florida, Comerford had an excellent work record.
The other carrier’s “trade” was approved, but the Postmaster in Bradenton disapproved Comerford’s “trade” request. The reason given was that Comerford had “insufficient sick leave”. Comerford believed that was a pretext, because he had plenty of accrued sick leave, and his previous transfers had not been held up on that basis. 9. Believing that the real reason the Bradenton Postmaster had disapproved his “trade” was because of his age, Comerford contacted the Postal Service EEO department.
Comerford filed a formal complaint alleging discrimination on the bases of age and in reprisal for prior protected activity when:
1. on July 26, 2004, he was issued a Letter of Warning;
2. on August 26, 2004, he was issued a 7-day suspension; and
3. on September 16, 2004, he was issued a 7-day suspension.
The EEOC and the District Court denied Comerford’s complaint. Comerford appealed his case to the Court of Appeals. Note: some facts in the case below differ from the District Court’s records.
Mark G. Comerford appeals from the district court’s grant of summary judgment in favor of the United States Postal Service (“USPS”) on Comerford’s claim brought pursuant to the Age Discrimination in Employment Act (“ADEA”) that Joseph Gerace, the Postmaster in Bradenton, Florida, retaliated against him for filing a union grievance and an age-discrimination complaint. The district court granted summary judgment to USPS on the ground that Comerford failed to establish a prima facie case.
Comerford, a long-time USPS employee, was working in 2004 as a letter carrier in Tallahassee and sought to trade jobs with a willing letter carrier in Bradenton. Purporting to rely on Comerford’s unsatisfactory attendance record, Gerace denied the request. Comerford responded by filing a complaint with the USPS Equal Employment Opportunity (“EEO”) department, alleging that Gerace’s real reason for denying the request was Comerford’s age. Comerford also filed a union grievance, asserting that Gerace’s purported reliance on Comerford’s attendance record violated the USPS union contract. Comerford’s EEO complaint was ultimately unsuccessful, but a dispute resolution team sustained Comerford’s union grievance and his trade request was approved.
Comerford began working in Bradenton under Gerace shortly thereafter. Over the next several months, Comerford was constantly disciplined. Because Comerford believed that this discipline was unwarranted and in retaliation for his age-discrimination complaint, he successfully sought a transfer to Colorado, even though this transfer resulted in a loss of his seniority and his regular, full-time work status.
Comerford subsequently filed this ADEA action. In granting summary judgment to USPS on Comerford’s retaliation claim, the district court focused exclusively on Comerford’s union grievance. The court found that, because the union grievance was not based on age, Comerford did not engage in statutorily protected expression, and thus failed to establish a prima facie case. Nowhere did the district court mention Comerford’s EEO age-discrimination complaint, which had alleged that Gerace’s purported reliance on Comerford’s attendance record was a pretext for denying the trade request.
There is no question that Comerford’s EEO age-discrimination complaint constituted statutorily protected expression. The fact that Comerford also filed a union grievance does not somehow negate his EEO age-discrimination complaint, especially given that the two were inexorably intertwined. Indeed, the union grievance challenged Gerace’s purported reason for denying the trade request, which Comerford alleged was a pretext for the real reason for the denial (Comerford’s age). Thus, the district court erred by granting summary judgment to USPS on the ground that Comerford failed to engage in statutorily protected expression. Accordingly, we vacate the district court’s opinion with respect to Comerford’s retaliation claim and remand for further proceedings consistent with this opinion.
AFFIRMED IN PART; VACATED IN PART AND REMANDED.
The federal-sector provision of the ADEA, 29 U.S.C. § 633a(a), authorizes retaliation
claims. Gomez-Perez v. Potter, 553 U.S. 474 (2008). Comerford does not challenge the district
court’s denial of his age discrimination claim on appeal, and thus this claim is not before us. See
Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1274 n.4 (11th Cir. 2008). However, Comerford’s
failure to pursue his age discrimination claim does not adversely affect his retaliation claim,
which is legally and factually distinct.
MSPB Overturns Demotion of Postal Supervisor For Misuse Of USPS Credit Card
Filed under: legal cases, mspb, postal, postal supervisors, removals, usps
The following is a modified version of the MSPB case:
Based on the results of an investigation, USPS removed the appellant from his position as EAS-17 Supervisor, Distribution Operations, on a charge of failure to follow instructions – unauthorized purchases on his government credit card. USPS listed three specifications: (1) using his assigned government credit card for personal reasons; (2) unacceptable conduct – receiving night differential to which he was not entitled; and (3) unacceptable conduct – falsification of PS Form 1261 (non-transactor report). On review, the deciding USPS official found that the “charges” were sustained but that removal was too severe, and he mitigated the penalty to a reduction in grade and pay to the position of Mailhandler, Level 4.
On appeal, the Supervisor challenged the action and alleged that it was in retaliation for his protected equal employment opportunity (EEO) activity. During adjudication, the MSPB administrative judge notified the parties that she construed the proposal notice as consisting of three separate charges with one specification under each charge, and neither party noted any objection.
Following a hearing, the MSPB administrative judge issued an initial decision in which she found charge (1) sustained. Although she found that the Supervisor’s use of his government credit card to buy pizzas for his subordinates was appropriate, she found that his other uses (twelve cash advances, seven gasoline purchases, and two car rentals over a 5-month period, all personal expenses) were not. The MSPB administrative judge further found that charges (2) and (3) were not sustained. She found that discipline for the sustained charge promoted the efficiency of the service, and that the Supervisor did not support his claim that the action was taken in retaliation for his prior protected EEO activity. Based on the single sustained charge, the administrative judge found that the reduction in grade and pay was within the limits of reasonableness. Read more
Acting Postal Supervisor Terminated For Falsifying Timecard But Not His Female Boss
Charles Wilcher, a 204B (acting)supervisor from the letter carrier craft, claimed he was “working” on July 5, 2006 when he spent the day with his Postmaster [Margie Flores-Jones]. She was also accused of getting paid for July 5, 2006 even though it was alleged that she did not actually work that day. She was initially demoted to the position of Supervisor of Customer Service, but was subsequently returned to her position as Vineland Postmaster. Eight months after the incident he was issued a Notice of Removal. After a grievance filed by his union, a three-day arbitration hearing and two formal complaints filed with the EEOC, his removal was upheld. His complaint of unlawful discrimination based on his race and gender was dismissed.
CHARLES WILCHER, Plaintiff,
v.
JOHN E. POTTER, Postmaster General, and UNITED STATES POSTAL SERVICE, Defendants.
Civil Action No. 08-2723
United States District Court, D. New Jersey.
June 18, 2010
BACKGROUND
In September 2000, plaintiff, Charles Wilcher, became a “craft” employee of the United States Postal Service. He first served as a letter carrier, but in July 2006, he became a 204B acting supervisor of the Vineland Delivery and Distribution Center. As a 204B supervisor, plaintiff retained his craft status, but he performed duties of a first-level supervisor.
On March 16, 2007, plaintiff was issued a Notice of Removal, which terminated his employment with the USPS. The Notice of Removal charged plaintiff with improper conduct for being paid for eight hours on July 5, 2006 even though he had not reported for duty that day. Through two formal complaints filed with the EEOC, a grievance filed by his union, and a three-day arbitration hearing, plaintiff challenged the basis for removal by maintaining that he did work on July 5, 2006. Plaintiff explained that he did not perform his supervisor duties that day on the floor, but rather spent the entire day filing with the Vineland Postmaster in her office, behind closed doors or otherwise in an area where other USPS employees could not see him.
An Office of Inspector General investigation ensued into plaintiff’s explanation, and the arbitrator and plaintiff’s supervisors all determined it to be without merit, thus leading to plaintiff’s discharge. Plaintiff, however, insists that he worked on that date, and claims that the USPS terminated his employment because is a black male. As a result, plaintiff filed this action against the USPS for unlawful discrimination based on his race and gender.