On Appeal from the United States District Court for the Middle District of Pennsylvania Scranton, Civil No. 83-1195.
Before: SEITZ, ADAMS, and STAPLETON, Circuit Judges.
Victor Gaj brought this action in the District Court for the Middle District of Pennsylvania claiming that the defendants, the United States Postal service, the Postmaster General of the Untie States, and the Postmaster of the Wilkes-Barre post office, had refused to re-hire him because of protected actions he had taken while previously employed by the Postal Service and because he is handicapped. The district court granted the defendants' motions for summary judgment. Gaj then filed a motion to amend the district court's judgment. After the district court denied the motion to amend, Gaj filed a timely appeal.
Gaj was an employee of the Postal Service from June, 1973 to March, 1976; during that time he was active in union affairs as health and safety officer. Gaj complained to the Postal Service about safety matters and working conditions, including the noise level, and the fact that a conveyor belt was permitted to operate while employees performed maintenance on it. During the period Gaj, who is a disabled veteran with sight in only one eye, also filed a lawsuit against the Postal Service alleging handicap discrimination. The lawsuit was dismissed. Eventually, Gaj quit his employment because of the safety deficiencies.
Three years after leaving his job, specifically on August 21, 1979, Gaj applied for re-employment as a mail handler or clerk carrier with the Wilkes-Barre Post Office. The Postal Service gave several inconsistent reasons for denying his application. On October 2, 1979, Gaj received a letter from the Postmaster of the Wilkes-Barre Post Office stating: "Particular attention has been given your past Postal Service record and any other interaction with this agency. Our review indicates that it would not be in the best interests of the Postal Service to process your application further." However, in a letter to Congressman Nickey Leyland dated September 17, 1981, Edward Horgan, Postmaster of the Wilkes-Barre Post Office, stated that Gaj was not hired because he was unable to pass the vision requirements for operating a right hand drive vehicle. And, Gerhard Brasche, Personnel Management Specialist, in an affidavit dated May 9, 1985, stated that Gaj's name was never reached on the mail handler list because all the positions were filled by applicants with higher ratings. The mail handler list shows, however, that Andrew Savina was hired, and he had the same rating as Gaj.
On August 19, 1983, Gaj filed a new complaint against the Postal Service, Postmaster General William Bolger and Wilkes-Barre postmaster John Burkey. He filed an identical complaint against the United States on April 19, 1984, under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b). These two complaints were consolidated by the district court. Count I of each complaint alleges that the defendants violated the Postal Reorganization Act, 39 U.S.C. § 1001(b), and the FTCA, by failing to apply the Postal Service's merit selection system to his application. Count II of each complaint, grounded in the FTCA and in 28 U.S.C. § 1331, alleges that the defendants violated Gaj's first amendment rights by denying him employment because of his safety complaints, and his fifth amendment rights by denying him employment because of his union activities. Count III of the complaints avers that the defendants violated the Postal Reorganization Act, 39 U.S.C. § 1003(b), and the FTCA, by failing to extend opportunities to the handicapped.
On October 30, 1984, the district court dismissed the Postal Service as a defendant, and also rejected the plaintiff's demands for a jury trial and punitive damages. On March 29, 1985, the district court dismissed Gaj's claims under the FTCA, because Pennsylvania does not recognize the tort of failing to hire based on a handicap, see Bruffett v. Warner Communications, 692 F.2d 910 (3d Cir. 1983), and under 39 U.S.C. § 1003(b), because adequate remedies exist under the Rehabilitation Act of 1973, 29 U.S.C. § 701. No appeal was taken as to these rulings, and these determinations thus are not at issue on this appeal.
By memorandum and order of July 11, 1985, the district court also disallowed Gaj's fifth amendment claim on the ground that an adequate remedy exists under the National Labor Relations Act for discrimination based on prior union activities, and his first amendment claims on the ground that safety complaints do not constitute "speech regarding public issues" and therefore are not protected by the first amendment. The district court also dismissed Gaj's claim of handicap discrimination because he had access to an adequate alternative remedy before the Equal Employment Opportunity Commission. Finally, the district court granted the defendants' motions for summary judgment on Count I of each of the complaints because the Postal Service has in place a merit selection system that is applicable to Gaj's request for employment.
Gaj filed a motion to amend the judgment, which the district court treated as a motion to reconsider the judgment. In a memorandum and order dated November 22, 1985, the district court declined to change its judgment. Gaj appeals from that order. Because the district court treated Gaj's motion as one to reconsider, rather than simply to amend, the judgment, we will review the order as such and give each claim full consideration.