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GOLSON-EL v. RUNYON

February 8, 1993

PHYLLIS B. GOLSON-EL, Plaintiff,
v.
MARVIN T. RUNYON, POSTMASTER GENERAL, Defendant



The opinion of the court was delivered by: BY THE COURT; MARVIN KATZ

 AND NOW, this 8th day of February, 1993 upon consideration of Plaintiff's Motion for Summary Judgment, Defendant's Motion for Summary Judgment or, in the alternative, to Dismiss Plaintiff's Request for Punitive Damages, and Compensatory Damages and to Strike Plaintiff's Demand for a Jury Trial, it is hereby ORDERED that the Plaintiff's Motion is DENIED and Defendant's Motion for Summary Judgment is GRANTED. The Motions to Dismiss Plaintiff's Request for Punitive Damages, and Compensatory Damages and to Strike Plaintiff's Demand for a Jury Trial are DENIED as moot.

 FACTS

 The Plaintiff was hired as a mail handler by the United States Postal Service on January 22, 1983. Def. Attach. A, Tab 1. She remained in this position under she was fired on February 13, 1992. Id. at Tab 12.

 The plaintiff admits to being an alcoholic. Pl. Mem., Ex. 1, Aff. Golson-El, P 2. She has been an alcoholic since at least 1986. Id.

 Between 1986 and 1990 the plaintiff was absent from work on numerous occasions. Pl. Mem., Ex. 2, Notice of Proposed Removal. The plaintiff claims that all of those absences were caused by her alcoholism. Pl. Mem., Ex. 1, P 3. Because of these absences, the defendant gave the plaintiff written notice of its intention to remove her from employment after 30 days. Pl. Mem., Ex. 2. This notice was dated April 13, 1990. It was amended on August 13, 1990. Id. The plaintiff filed a grievance regarding the removal notice.

 On October 5, 1990, the plaintiff, her union, and the defendant reach a deal to settle the grievance. The plaintiff, the defendant, and the plaintiff's union signed an agreement (hereinafter "Last Chance Agreement"). Pl. Mem., Ex. 3. On the same day, the plaintiff also signed an "Agreement of Participation in EAP" (hereinafter "EAP Agreement"). *fn1" Pl. Mem. Ex. 4.

 The Last Chance Agreement stated that "because of the problem relating to the disease of alcoholism . . ., and your agreement to solicit assistance from the EAP Program of the Agency, favorable consideration in the aforecited Removal action is being shown . . . ." Pl. Mem., Ex. 3, p. 1. The Last Chance Agreement also provided that

 During the period of casual appointment and of the first year of career appointment, the [plaintiff]'s attendance will be reviewed, and if at anytime her unscheduled absences exceed 3% of her scheduled workhours, regardless of the reason for such absence, with the exception of acts of God, she will be summarily dismissed.

 Id. at P 10. The 89 day casual appointment was to begin on October 13, 1990 and run through January 10, 1991. See Id. PP 1, 8. The first year of career appointment ran from January 11, 1991 to January 10, 1992.

 The plaintiff was absent from work on several different occasions from July 27, 1991 until January 8, 1992. These absences represents 78.64 hours of work. Pl. Mem., Ex. 7. These absences exceed the three percent condition in the Last Chance Agreement. *fn2" Pl. Mem at 16. The plaintiff asserts that none of these absences were due to alcoholism; instead all of these absences were due to illness and therefore beyond her control. *fn3" Pl. Mem., Ex. 1, PP 7, 8. She has doctors' notes to support her claims for most of the days in question. See Pl. Mem., Ex. 8. This claim is not challenged by the defendant. See Def. Mem at 13.

 By Notice of Proposed Removal dated January 14, 1992, the defendant informed the plaintiff of its plan to terminate her. Pl. Mem., Ex. 7. The termination was based on the "Failure to meet the conditions of a signed last chance agreement - FAILURE TO BE REGULAR IN ATTENDANCE/UNSCHEDULED ABSENCES." Id. (emphasis in the original). The letter then listed plaintiff's absences from July 27, 1991 until January 8, 1992. The Notice of Proposed Removal also reviewed the historical facts of the plaintiff's past record: three suspensions for Failure to Meet Attendance Requirements/Unscheduled Absences; one suspension for Absent from Assigned Work Area With Out Authorization; one suspension for Failure to Follow Instructions; and one Letter of Warning for Failure to Meet Attendance Requirements/Unscheduled Absences. Pl. Mem., Ex. 7. These disciplinary measures were taken between 1986 and 1989 and prior to the signing of the Last Chance Agreement. Id.

 At the time of her actual termination on February 13, 1992, the plaintiff had 18 hours of accumulated, unused annual leave and 41.30 hours of ...


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