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Rigel v. Wilks

December 28, 2006

MARC RIGEL, PLAINTIFF
v.
CLIFTON D. WILKS, INDIVIDUALLY AND AS LABOR RELATIONS SPECIALIST FOR THE UNITED STATES POSTAL SERVICE; JONATHAN LISTER, INDIVIDUALLY AND AS LABOR RELATIONS SPECIALIST FOR THE UNITED STATES POSTAL SERVICE; BARBARA J. NICKA, INDIVIDUALLY AND AS ACTING MANAGER OF ATTENDANCE CONTROL AND FAMILY MEDICAL LEAVE ADMINISTRATOR FOR THE UNITED STATES POSTAL SERVICE; KATHLEEN MCDERMOTT, INDIVIDUALLY AND AS HUMAN RESOURCE SPECIALIST FOR THE UNITED STATES POSTAL SERVICE; JOHN E. POTTER, POSTMASTER GENERAL OF THE UNITED STATES POSTAL SERVICE; AND THE UNITED STATES POSTAL SERVICE; DEFENDANTS



The opinion of the court was delivered by: Chief Judge Kane

MEMORANDUM

Before the Court is Defendants' motion for summary judgment. (Doc. No. 45.) The motion has been fully briefed and is ripe for disposition. For the reasons discussed below, the motion will be granted, and Plaintiff's FMLA claim will be dismissed.

I. BACKGROUND

A. Procedural History

Plaintiff Marc Carroll Rigel commenced this civil action on June 11, 2003, against the United States Postal Service ("USPS" or "Postal Service"), the Postmaster General in his official capacity and several supervisory employees. (Doc. No. 1.) Rigel's complaint indicates that he seeks relief under the Family and Medical Leave Act, 29 U.S.C. §§ 2601-2654 (2005) ("FMLA"), the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (2005) ("FLSA"), and "relief for the denial of his Constitutional rights." (Id. ¶¶ 43-50.) Among other things, Rigel claims that he was subjected to retaliation "for his successful use and participation in union activities, including the grievance process." (Id. ¶¶ 29-30.)

On March 15, 2004, Defendants moved for partial judgment on the pleadings. (Doc. No. 11.) The Court's March 31, 2005, Order granted Defendants' motion in part, in so far as Rigel's claims against Defendants Clifton Wilks, Jonathon Lister, and Barbara Nicka were dismissed without prejudice for failure to serve, and his FLSA and First Amendment retaliation claims were dismissed. (Doc. No. 22.) Thus, Rigel's only surviving claim is that remaining Defendants USPS, the Postmaster General, and Ms. Kathleen McDermott, named in her individual and official capacity as a USPS Human Resource Specialist, have willfully "violated Mr. Rigel's right to have access to and receive protected leave under the FMLA." (Doc. No. 1, ¶¶ 45, 51(b).)

On April 21, 2006, Defendants filed the instant motion for summary judgment on Rigel's FMLA claim together with a three-volume record. (Doc. No. 45.) On May 31, 2006 Rigel filed a brief in opposition to summary judgment with exhibits (Doc. No. 31), to which Defendants filed a timely reply (Doc. No. 63).

When they filed their motion for summary judgment, Defendants also submitted their Statement of Material Facts in Support of Motion for Summary Judgment ("Statement"). (Doc. No. 49.) Rigel filed a response to Defendants' Statement, addressing the facts set forth by Defendants and also adding 45 paragraphs of additional facts. (Doc. No. 62.) With the Court's leave (Doc. Nos. 66 & 67), Defendants filed a reply to Rigel's response statement of material facts, in which they argue that Rigel "has essentially admitted" the statements of material facts or that the Court should deem them to have been admitted.*fn1 (Doc. No. 68.)

A. Factual Background*fn2

General Information

Plaintiff Marc Carroll Rigel began working for the USPS in 1984, and as of June 2000, he held the position of window clerk in the Federal Square Post Office in Harrisburg, Pennsylvania. Rigel's supervisor at that time, and since 1998, was James Heckler.

The working relationship between Heckler and Rigel was not the best -- Rigel once described it as being "very contentious." (R. 38, Rigel Dep. 146.) Prior to the series of events at issue here, Heckler had issued a notice of removal of Rigel on August 18, 1998, on charges of improper manipulation of postal accounts and failure to follow instructions. Rigel grieved his removal through his union, and an arbitrator concluded that Rigel had, in fact, violated USPS regulations, but reduced the removal to a 60-day suspension without pay because the initial phase of the disciplinary procedure had not been properly administered. Rigel returned to work after the arbitration at the end of October 1999.

About five months after returning, in early March 2000, Rigel's life partner unexpectedly became gravely ill, was admitted to the hospital, and told he had few days to live. Because of the seriousness of the situation, Rigel took time off from work starting March 1, 2000. Rigel's partner passed away on March 5, 2000, and Rigel remained on leave through March 22, 2000. The reasons for leave noted on the March leave slips were annual leave, emergency leave, death in family, bereavement leave, and prescheduled leave. All these leave requests were approved.

Rigel returned to work at the Federal Square Post Office in late March 2000. Rigel's April 14, 2000, request for leave At 3:15 a.m. on April 14, 2000, Rigel telephoned the attendance control office*fn3 and requested sick leave for an undetermined period. He did not detail the reasons for calling off sick, which, according to Rigel, was the typical employee practice at the time. An attendance control supervisor completed a leave form, which stated that Rigel had taken regular sick leave on April 14, 2000, and did not indicate that Rigel sought or intended to seek FMLA leave. Heckler knew of Rigel's April 14, 2000, sick leave request, having received either a copy of or notice of that day's sick leave slip.

After the April 14, 2000, call, Rigel did not call in again about needing sick leave. At the time he had called off, Rigel had a significant block of sick and annual leave available. As a long time postal employee, Rigel also was eligible for extended periods of leave without pay (LWOP) for extended illnesses.*fn4

Heckler's April 24, 2000, Absence Inquiry Letter

As of April 24, 2000, Rigel had neither returned to work nor called attendance control to indicate the reason for his continued absence. On April 24, 2000, Heckler sent Rigel a standard "absence inquiry" letter by certified mail. The letter was sent to the official address Rigel provided to the USPS, a post office box which was under Rigel's mother's name and which Rigel's entire family used for the delivery of their mail. Rigel had used the post office box for years for the delivery of his mail, including any official correspondence from the USPS. Because of his severe depression, Rigel did not check his mail in April or May 2000; however, under normal circumstances, he would typically retrieve his mail in one of two ways: (1) he would periodically (but not on a daily basis) remove his mail from the post office box; or (2) his mother would remove all mail from the box and call Rigel to have him pick up his mail at her house.

Heckler's absence inquiry letter provided, in relevant part:

This letter is to instruct you to return to duty on the next regularly scheduled reporting day following your receipt of this letter, with proper documentation to substantiate the entire period of your absence. If you are unable to report for duty at that time you are REQUIRED to SUBMIT to your SUPERVISOR adequate documentation for your absence. This documentation MUST show the reason(s) you were unable to report during the ENTIRE period of your absence, and the date you expect to return to duty. This documentation must be submitted on, or before, 5/1/00.

If your absence has been due to illness or injury, you MUST furnish satisfactory evidence of your incapacitation. This evidence MUST show that you were incapacitated, by this illness or injury, for the performance of your duties during the ENTIRE period of you absence, the nature of your illness or injury, the dates on which you visited your doctor and the date you expect to return to duty. The information relating to your illness or injury must be obtained from the doctor treating you and must be signed by that doctor. This must also be submitted to your supervisor on, or before, 5/1/00.

Should you fail to follow these instructions you request for leave will be disapproved for your failure to provide acceptable documentation to support your absence from duty. You will then be placed in an absence without leave / permission (AWOL) status for the entire period of your absence and steps will be taken to remove you from the Postal Service.

I am enclosing paperwork for FMLA if this would be a covered condition of FMLA.

(R. 53) (capitalization for emphasis in original). With the letter Heckler included a publication explaining FMLA leave and a Form WH-380, which is an optional form prepared by the Department of Labor that can be used to provide an employer with the information needed to consider an FMLA request. It must be completed and signed by a qualified health care provider.

On April 26, 2000, Rigel's mother signed for and picked up the April 24, 2000, certified letter. Rigel's mother called and left a message for Rigel on his answering machine stating that she had a letter from the Postal Service for him.

As of May 10, 2000, Heckler had not received any response from Rigel regarding the April 24, 2000, letter. (In fact, Rigel had not yet retrieved the letter from his mother's house.) On that date, Heckler changed Rigel's leave for his absence beginning on April 14, 2000, from sick leave to absent without leave or permission (AWOL).

Heckler's May 5, 2000, Pre-disciplinary Interview Letter

On May 5, 2000, Heckler sent Rigel a second letter to his official address informing Rigel that he wanted have an interview before initiating administrative action. The letter stated:

This letter is to inform you that I wish to interview you prior to the initiation of administrative action. It is in your best interest that you answer this letter on of before May 12, 2000 . . . If you do not answer this letter in the time allotted, you give me no other choice but to proceed in the administrative process.

(R. 61.) On May 12, 2000, Rigel's mother signed for the letter.

During the period of Rigel's continued absence, Heckler did not call Rigel at home because Heckler's personal policy was not to call persons on sick leave, only to write to them. Moreover, according to Rigel, by union rules, once an employee calls and provides the information that is requested by the Postal Service, further contact with the employee is to be made through the union. Management was not permitted to call the employee directly.

At no time in April or May 2000 did Rigel call Heckler to advise him why he was absent, that he was suffering from depression, or that he was under a doctor's care. Rigel indicated that this was consistent with the union policy that "[n]o floor line supervisor has the right to know an employee's condition. That condition is revealed to the FMLA coordinator and/or to the union."

(R. 21, 23, Rigel Dep. 78-81, 92-93.)

Rigel's Situation and Initial Communication with USPS

Sometime around April 14-16, 2000, Rigel called and spoke with a union representative, Deb Kyle, explaining that he was unable to work and had called in sick and asking her to "take care of this." ...


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