The opinion of the court was delivered by: A. Richard Caputo United States District Judge
Presently before the Court is the Motion for Summary Judgment of Defendant Jack E. Potter, Postmaster General, United States Postal Service (Doc. 47). Because in responding to Defendant's motion, Plaintiff chooses to "only pursue his claims that he was denied training at NCED on numerous occasions in retaliation for his participation in legally protected activity"; because no question of material fact exists as to whether Defendant Jack E. Potter, Postmaster General of the United States Postal Service, acted with retaliatory intent in regard to Plaintiff Andrew J. Kondas, the Defendant's Motion for Summary Judgment will be granted. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 ("federal question jurisdiction").
Plaintiff Andrew J. Kondas is employed as an electronic technician ("ET") by the United States Postal Service ("USPS"), at its Scranton Processing and Distribution Center ("Scranton P&DC"). (Def.'s Statement of Material Facts, [hereinafter "Def.'s SOF"], Doc. 49 ¶ 1; Pl.'s Response to Def.'s Statement of Material Facts [hereinafter "Pl.'s Response"] Ex. 8 to Doc. 58 ¶ 1.) The Defendant in this case is Jack E. Potter, Postmaster General for the USPS.
A. Initial Events at NCED Training Facility
For his job, Plaintiff took training courses from time to time at the USPS' National Center for Employment Development ("NCED") in Norman, Oklahoma. (Def.'s SOF ¶ 2; Pl.'s Response ¶2.) Plaintiff has testified about conflicts with two (2) instructors of these courses. First, Plaintiff testified that in July of 1989, his supervisors allowed him to miss a day of training because of a planned vacation and this decision angered instructor Orville Turner, also identified as Butch Turner. (Kondas Dep., Nov. 7, 2007, Ex. A to Doc. 58, at 22:20 - 26:22.) Plaintiff testified that Turner phoned Plaintiff's mother, also a USPS employee, and told her he would ensure that Plaintiff was fired, causing her to become very upset; Plaintiff later phoned Turner to confront him about this behavior. (Id.) Second, Plaintiff testified that in 1997, another instructor, Bob Lee, "pushed me, and I said just keep your hands off me." (Id. at 116:1-2.)
In 1998, Kondas attended an "AFCS" class at the NCED in Oklahoma on the use of a certain USPS machine. (Def.'s SOF ¶ 2; Pl.'s Response ¶ 2.) Per the advice of his psychiatrist, Kondas sought to avoid instructors Turner and Lee; he asked Earline Charlton, the head of student services, which instructor would be teaching the course and requested to have instructors other than Turner or Lee. (Def.'s SOF ¶¶ 3-5; Pl.'s Response ¶¶ 3-5.) Plaintiff avers that although he recounted his history with these instructors to Ms. Charlton, she told him that he was the problem, that Mr. Turner and Mr. Lee were the only instructors, and that Plaintiff had no right to ask for different instructors.
(Kondas Dep., Ex. A to Doc. 58, at 42:5-16, 44:8-15.) Plaintiff told Ms. Charlton that he was did not want to be instructed by Bob Lee "because he pushed me. I said I'm not responsible if he touches me again. You put me in a class with him again and he gets cocky, I'm not responsible for what happens." (Id. at 44:20-23; Def.'s SOF ¶¶ 5-6; Pl.'s Response ¶¶ 5-6; Pl.'s Counterstatement of Undisputed Facts, Ex. 8 to Doc. 58 ¶ 5-8.) Ms. Charlton told Plaintiff that he was making threats. (Def.'s SOF ¶ 7; Pl.'s Response ¶ 7.) According to Ms. Charlton, this conversation took place on November 13, 1998, and Mr. Kondas kept talking about kicking anyone's ass who interfered with his mother, I believe referring to his local managers. . . . He made a statement in reference to Bob Lee that he knew about chemicals and could do lots of things. When I explained to him that his comment was a veiled threat he mentioned something about chemicals for IJP (Ink Jet Printer). (EEO Investigative Affidavit, July 21, 1999, Doc. 49-3.)
On a subsequent training trip to Oklahoma, on December 18, 1998, Kondas entered Ms. Charlton's office after completing a course and gave her his certificate of completion, on the back of which he had written: "I will return, and payback is guaranteed, Ed Nahl, Tell Butch Turner." (Def.'s SOF ¶¶ 8-9; Pl.'s Response ¶¶ 8-9.) Plaintiff admits he wrote this, but states that he told Ms. Charlton that by the term "payback is guaranteed," he meant he would file grievances. (Def.'s SOF ¶ 9; Pl.'s Response ¶9.) Kondas further testified:
I went down and handed it to her and grievances are coming. Every time I come out here I will file a grievance against you people. . . . I didn't mean any harm to any people. . . . Grievances is what I'm going to file every time. They took that so seriously that in 1999, August, while this process was going on, they signed an agreement . . . that no grievances can be processed out in Oklahoma. . . . I was out there and filed a safety complaint Ed Nahl . . . and it wasn't frivolous, . . . And Ed Nahl, they take grievances and they take safety complaints very personally. Good, because I've taken what they've done personally. (Kondas Dep, Ex. A to Doc. 58, at 120:21 - 122:13.) Ms. Charlton stated, however, that Kondas only "slapped down" the certificate on her desk, "said something to the effect I could keep this and give it to Ed Nahl [a Technical Training Specialist at the NCED] and Butch Turner," and "[t]here was no other conversation." (EEO Investigative Aff., Doc. 49-3.) According to Ms. Charlton, "[a]s a result of Mr. Kondas' actions NCED Management and the threatened staff felt Mr. Kondas' actions were increasingly severe in nature and constituted actual threats directed against specific individuals." (Id.) Defendants also submitted a response to an email, prepared by Jim Dikes, Support Service Specialist for NCED, in which Dikes reported about a December 28, 1998 "predisciplinary meeting" that Dikes himself did not attend. (See Dikes Response, Def.'s Ex. N, at 3, Doc. 58, at 7.) Dikes quotes Plant Manager Gerry McNamara describing Kondas' explanation of what his note meant:
Basically his definition to that is that when he comes back to Oklahoma and if he happens to be in Butch Turner's class, he is going to do everything he can basically to be a pain as far as maybe coming into class late, taking annual leave, and actually to the point where I asked him if he would actually sabotage a machine to be a pain, he told me he would. I repeated my question again and he said the same thing and added that whatever it would take to get somebody off his back. (Dikes Response, Def.'s Ex. N, at 1, Doc. 58, at 5.)
B. Initial Decision to Ban Kondas from Training at NCED
It is undisputed that in late December 1998, the Threat Assessment Committee determined that Kondas posed a threat to employees and training equipment, and recommended to NCED supervisor Steven Mosier that Kondas be banned from training at NCED courses. (Def.'s SOF ¶¶ 11-12; Pl.'s Response ¶¶ 11-12.) Upon receiving this recommendation, Mr. Mosier decided to institute such a ban. (Def.'s SOF ¶ 13; Pl.'s Response ¶ 13; Dep. of Steven Bruce Mosier, Feb. 15, 2008, Def.'s Ex. H to Doc. 54, at 24:9-12.) The ban did not affect Plaintiff's ability to receive training at other locations. (See Response of Jim Dikes, Support Service Specialist for NCED, to Aug. 20, 2002 email of Courtney Wheeler, USPS Attorney, Def.'s Ex. N, at 1, Doc. 58, at 5; USPS v. Am. Postal Workers Union [APWU], Case No. C00T-1C-C05032397, Aug. 1, 2007 (Zobrak, Arb.) Def.'s Ex. NN, Doc. 54-3.) Defendant submits that this ban was intended to be permanent, but Plaintiff argues that it was not. (Def.'s SOF ¶ 11; Pl.'s Counter-SOF ¶¶ 11, 13-14.) Both parties agree that Mr. Mosier stated that he intended the ban to last as long as the threat existed. (Def.'s SOF ¶ 14; Pl.'s Response ¶ 14.) Subsequently, Plaintiff was terminated by the USPS, grieved his termination, and was reinstated with full back pay and benefits by a June 30, 2000 arbitration award. (Def.'s Ex. M, Doc. 54; see USPS v. APWU, Aug. 1, 2007 (Zobrak, Arb.) Def.'s Ex. NN, Doc. 54-3) (discussing the earlier arbitration award in which Plaintiff was reinstated)).
C. Post-Reinstatement Events
Since his reinstatement, Plaintiff has not been allowed to attend training at the NCED; he has only been allowed to attend "satellite" courses in other locations. (Id.) As a result, he filed a grievance that led to a second arbitration in 2007; this grievance was denied, as the arbitrator concluded that (1) the collective bargaining agreement governing Plaintiff's employment contained no contractual right to attend specific training, (2) that the first arbitrator's award reinstating Kondas to his employment with a "make whole" remedy "d[id] not confer to him the additional right of attending training in Norman, Oklahoma," and (3) at least based on the information then before the arbitrator, Plaintiff had not suffered "demonstrated harm" based on his exclusion. (See id.)
Plaintiff does not dispute that, even after his reinstatement, some people at the NCED expressed concern for their safety and the safety of their families in the event that he be allowed to return to the NCED; Plaintiff does dispute, however, that the concerns were reasonable, citing, among other things, the initial arbitration decision that reinstated him. (Def.'s SOF ¶ 24; Pl.'s Response ¶ 24.) Although the parties did not produce this arbitration decision, both parties refer to an email written by USPS attorney Courtney Wheeler that summarizes the decision. (Def.'s SOF ¶ 25; Pl.'s Response ¶ 25; Email from Courtney Wheeler to Carl Sumner, Aug. 20, 2002, Def.'s Ex. L, Doc. 54.) In the email, Mr. Wheeler states in part that "[t]he arbitrator clearly addressed the issue of whether or not Kondas was a threat to postal employees and found that the Postal Service's beliefs were misplaced. While some might disagree with this conclusion, the facts set out in the award reasonably support his decision." (Wheeler email, Def.'s Ex. L, Doc. 54.) The second arbitrator characterized the initial award's findings regarding Kondas' behavior as follows: "Although it was determined that the Grievant acted as alleged, Arbitrator Milller concluded that the Postal Service failed to prove the charges against him [violation of the USPS "Zero Tolerance Policy" and "Improper Conduct"] and, therefore, did not have just cause to discharge him." (USPS v. Am. Postal Workers Union, Aug. 1, 2007 (Zobrak, Arb.) Def.'s Ex. NN, Doc. 54-3.)
In response, Defendant cites behavior of Mr. Kondas after his reinstatement. In particular, after an April 2004 training that Kondas attended locally, he completed a course evaluation and wrote on the comments section: "Fuck You Steve Mosier and your buddies? Tell Dumb Bastard I said Hello!! Look Forward to Seeing You all!!!" (NCED Training Satisfaction Survey, Def.'s Ex. GG, Doc. 54-3, at 34-35; Def.'s SOF ¶ 63; Pl.'s Response ¶ 63.)) Steve Mosier is manager of the NCED, and "Dumb Bastard" was a nickname Kondas had adopted for himself in a previous training course. (Def.'s SOF ¶ 62; Pl.'s Response ¶ 62.) After finding out about this comment, Douglas Baxter, Manager of Maintenance and the USPS Scranton facility, who had earlier attempted to get Kondas into more training, came to conclude that Kondas should not return to NCED because "my thought then was, you know, this guy is carrying a grudge too long. So who knows what might happen if he was out in training at NCED?" (Douglas D. Baxter Dep., Doc. 54-3, Def.'s Ex. 54-3, at 68:22 - 69:16; Def.' SOF ¶¶ 64-65; Pl.'s Response ¶ 64-65.) Although this comment led Baxter to "be reserved about sending him to training at NCED," Baxter never knew Kondas to be violent or noticed anything that he would consider to indicate that Kondas was a danger to anybody. (Baxter Dep., Doc. 54-3, at 68:24-25, 69:23 - 70:9.)
On April 27, 2004, the Threat Assessment Team met again and concluded that "Mr. Kondas should NOT be allowed to return to NCED for training" because he "continues to demonstrate Priority 1 risk factors, as outlined in publication 108, the Threat Assessment Team guide." (NCED Threat Assessment Team Report - April 27, 2004, Re: Andrew Kondas, Def.'s Ex. HH, Doc. 54-3.) Specifically, "he has [illegible] an act of violence, identified targets both verbally and in writing, and seems to have an obsessive focus on grudge." (Id.) The Team also noted that "[w]hile it is assumed that Mr. Kondas can be monitored during regular training hours, there is no guarantee Mr. Kondas will not act upon his verbal and written threats during non-training hours." (Id.)
Plaintiff filed his initial Complaint in this case on September 14, 2005 and filed amended complaints on February 20, 2006; October 10, 2006; and January 9, 2007. (See Docs. 1, 10, 20, 26.) In his Third Amended Complaint, Plaintiff brings claims of retaliation for protected Equal Employment Opportunity ("EEO") activity (Count I), and discrimination based on his disability or the Defendant's perception of his disability (Count II), both in violation of the Rehabilitation Act of 1973, 29 U.S.C. §§ 791, 794. (Third Am. Compl., Doc. 26 ¶¶ 60-63.) Defendant moves for summary judgment on both of Plaintiff's claims, on the grounds (1) that Plaintiff's claims based on certain allegedly retaliatory and discriminatory actions are barred by the statute of limitations, res judicata, and/or failure to exhaust; (2) that Plaintiff cannot make out a prima facie case of either retaliation or disability discrimination; and (3) that even if Plaintiff did make out a prima facie case, Defendant had legitimate, non-discriminatory reasons for denying Plaintiff training at the National Center for Employment Development ("NCED"), giving him a pre-disciplinary interview, denying him overtime, and denying him a temporary tour assignment. (Def.'s Mot. for Summ. J., Doc. 47.) Defendant's motion is fully briefed and ripe for disposition.
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. See id. at 248. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id.
Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERALPRACTICE AND PROCEDURE: CIVIL 2D § 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the Court that "the nonmoving party has failed to make a sufficient showing of an essential element of her case." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. See White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its initial burden, the burden shifts to the nonmoving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. See Anderson, 477 U.S. at 256-57.
The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to ...