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Paul M. St. John v. John E. Potter U.S. Postmaster General

March 4, 2011

PAUL M. ST. JOHN
v.
JOHN E. POTTER U.S. POSTMASTER GENERAL



The opinion of the court was delivered by: Baylson, J.

MEMORANDUM

Plaintiff Paul M. St. John ("Plaintiff") commenced a claim for unlawful retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-16 et seq., against his employer Defendant John E. Potter, United States Postmaster General ("Defendant"). Plaintiff alleges that Defendant placed Plaintiff under investigation and ordered him on administrative leave for a period of fifteen minutes in retaliation for Plaintiff's complaints of national origin discrimination to the Equal Employment Opportunity Commission ("EEOC"). Presently before the Court are Defendant's Motion for Summary Judgment (ECF No. 20), which seeks to dismiss Plaintiff's claim, and Plaintiff's Motion for Stay (ECF No. 27). After oral argument on the pending motions and an exhaustive review of the record, and for the reasons that follow, Defendant's Motion is granted and Plaintiff's Motion is denied as moot.

I. Procedural History

On March 27, 2007, Plaintiff contacted an EEOC counselor to file an informal complaint, alleging that Defendant had retaliated against him by placing him "off the clock" due to remarks Plaintiff made in his testimony at an EEOC Hearing on Plaintiff's national origin discrimination claim. EEOC Inquiry Report, Ex. 13; iComplaints Report; Pl. Depo. at 19-20, 21, 23; Ex. 3. Plaintiff alleged that his temporary suspension, which Defendant rescinded after fifteen minutes, had caused him stress and humiliation and Plaintiff sought relief in the form of damages and a letter of apology. Id. On May 19, 2008, the agency issued a Notice of Final Decision on Plaintiff's subsequent June 20, 2007 formal complaint and found that Plaintiff had not established a prima facie case of retaliation. See June 20, 2007 EEO Final Agency Decision, Ex. 16. The EEOC Office of Federal Operations ("OFO") reversed that decision and ordered the Postal Service to investigate whether Plaintiff was entitled to compensatory damages and ordered training and consideration of disciplinary action. See June 25, 2009 OFO Decision, Ex. 17. Plaintiff was awarded $300 in nominal compensatory damages. See August 10, 2009 EEO Notice of Final Decision, Ex. 18.

On September 16, 2009, Plaintiff commenced this action in federal court against Defendant, alleging that Defendant unlawfully retaliated against him for engaging in protected conduct and that, as a result, Plaintiff suffered "emotional stress, humiliation, embarrassment, and anxiety" (ECF No. 1). Defendant filed Answers and Affirmative Defenses to Plaintiff's Complaint on December 21, 2009 (ECF No. 8).

The parties subsequently conducted discovery. Defendant filed this Motion for Summary Judgment, on October 14, 2010 (ECF Nos. 20, 21). Plaintiff filed a Memorandum in Opposition to Defendant's Motion on November 18, 2010 (ECF No. 24), to which Defendant filed a Reply on December 2, 2010 (ECF No. 25). Plaintiff filed a Motion to Stay the pending proceeding on December 7, 2010 (ECF No. 27). The Court held oral argument on the parties' motions on December 15, 2010. On December 22, 2010, both parties submitted additional letter briefing on the issues of retaliation, pretext, the admissibility of EEOC determinations, and the relevance of certain deposition testimony (ECF No. 29).*fn1

II. Factual History

A. Plaintiff's Employment

Plaintiff has been employed by Defendant since May 3, 2003, and is a City Carrier at the Elkins Park, Pennsylvania post office. PS Forms 50, Ex. 1*fn2 ; Employee Detail Report, Ex. 2. Plaintiff was born in Scotland. Mar. 12, 2003 Application for Employment, Ex. 4.

B. Postal Service Policies Regarding Threats of Violence

The Postal Service has a developed a "zero tolerance" policy regarding violence and threats of violence, in response to a history of incidents of workplace violence. See Joint Statement on Violence and Behavior in the Workplace ("Joint Statement"), Ex. 21; Employee and Labor Relations Manual ("Manual"), Ex. 22, p. 4; Threat Assessment Guide, Ex. 23, pp. 4-7. In 1992, the Postal Service and related unions issued a "Joint Statement on Violence and Behavior in the Workplace," after one violent incident. See Joint Statement. The Statement establishes a policy of "no tolerance of violence or any threats of violence by anyone at any level of the Postal Service[.]" Id. The Postal Service has elaborated on the Joint Statement in its Employee and Labor Relations Manual, as follows, Violent and/or Threatening Behavior: The Postal Service is committed to the principle that all employees have a basic right to a safe and humane working environment. In order to ensure this right, it is the unequivocal policy of the Postal Service that there must be no tolerance of violence or threats of violence by anyone at any level of the Postal Service.

Similarly, there must be no tolerance of harassment, intimidation, threats, or bullying by anyone at any level. Violation of this policy may result in disciplinary action, including removal from the Postal Service.

Manual, Section 665.24 (emphasis added). At least one other court in the Third Circuit has recognized the Postal Service as "prohibiting employees from making any actual, implied or veiled threat, made seriously or in jest." Venter v. Potter, 694 F. Supp. 2d 412, 417 (W.D. Pa. 2010) (Conti, J.).

The Postal Service has additionally promulgated a "Threat Assessment Guide," which provides guidance to Postal Service managers "responding to and assessing the seriousness of violent and potentially violent situations." Threat Assessment Guide, p. 1. The Guide defines "zero tolerance" as a policy under which "every act of or threat of violence, regardless of the initiator, elicits an immediate and firm response." Id. at 4. The Guide specifies that an incident may result in, but does not require, a disciplinary response, including the possibility of dismissal. Id. As described in Venter, "[t]hreats made by employees are evaluated on a 'Priority Risk Scale[,]" from "priority 1" threats "deemed to convey an 'Extreme Risk' of violence" to "statements involving 'No Risk' of violence . . . categorized as priority 4 threats." Venter, 694 F. Supp. 2d at 418. The Guide states that an employee "involved in or witness to" an incident may notify one of a list of managers, including the Human Resources Manager. Threat Assessment Guide, p. 7. After an incident occurs, it is the duty of the Human Resources Manager to determine whether the Threat Assessment Team should meet "or whether the situation can be addressed through other [Team] members or ad hoc resources." Id. The Guide further outlines a list of situations in which Threat Assessment Team members should contact Postal Inspectors, including when the Team "is planning to conduct a threat assessment or risk abatement analysis."

Id. at 6.

Plaintiff has testified to his awareness of the Zero Tolerance Policy and knowledge of some of the history that led to its adoption. Plaintiff's September 21, 2010 Deposition at 120-23, Ex. 19.

C. Events Leading up to Defendant's Investigation of Plaintiff

Plaintiff had filed several formal and informal EEOC*fn3 complaints against Defendant between 2004 and 2007. iComplaints Report; Pl. Depo. at 19-20, 21, 23; Ex. 3. In one complaint filed on November 3, 2004, Plaintiff alleged that he was not paid for sick leave and was charged for leave without pay as a result of animus by his then-supervisor Joseph McGinn regarding his national origin. Id. The EEOC held an administrative hearing in Plaintiff's discrimination case on March 15, 2007, at which Plaintiff testified. EEO Hearing Transcript, Ex. 6. Defendant was represented by attorney Kathleen Barksdale, who was assisted by Robert Meingossner. Id. Plaintiff proceed pro se. Id.

During Plaintiff's testimony regarding damages, the hearing judge asked Plaintiff how McGinn's actions had affected him. See EEO Hearing Transcript, pp. 67-68, 71, 74. In response, Plaintiff described his anger at McGinn for denying him leave. Id. Plaintiff stated, as follows,

And then so not only did I not get it in the first pay period, [McGinn] promised to get it in the second pay period, and it's not there either. I mean, it's like I could have throttled him, you know. . . . . [McGinn] has reneged on redress settlements, and he has complete contempt for that. So again, I get back to the stage where I want to throttle him. Now, I can't throttle him. I can't use violence. I can't deal with the way I've been treated with -- with something that is just futile and stupid.

So all those feelings get pushed back inside. So the -- and the only out for me is -- is -- is sometimes when I'm home, and then my wife bears the brunt of it because I'm -- I'm coming home like a -- like a raging ton of just frustration, and -- and she gets that. You know, I mean, and that's not fair on her, you know, and it's like -- or the kids get snapped at quicker 'cause I -- I'm cranky because McGinn's -- has done this to me. . . . .

Now, I didn't have the leave. I was expecting the leave to come in. And my wife has a miscarriage, right? Now, I could kill him. I felt like the treatment that I have been subjected to, I couldn't take time off to be with my wife through a miscarriage because he purposely screwed me over time and time again because of this 2004 September thing. Hearing Transcript, pp. 67-68; 71; 74 (emphasis added).

D. Investigation into Plaintiff's Testimony

Barksdale deemed Plaintiff's testimony regarding McGinn to be in violation of the Zero Tolerance Policy. Barksdale Depo. at 8. Either during or immediately following the hearing, Barksdale made managers in the Philadelphia district office, including Smith, aware of Plaintiff's testimony. Id. at 18-19. Smith told Barksdale she would contact Lisa Jordan, a Postal Service Human Relations manager. Id.

Smith contacted Acting Senior Manager of Post Office Operations Joseph Sarnocinski. Smith Aff. at 220. On or about the day of the hearing, Jordan was also informed of Plaintiff's testimony. Lisa Jordan EEOC Affidavit at 227, Ex. 7. The various managers convened at a "previously scheduled Threat Assessment Meeting" on March 20, 2007, to discuss Plaintiff's testimony. Jordan Aff. at 227. This meeting appears to have been conducted at the Postal Service's district office, rather than at the Elkins Park Post Office. Barksdale Depo. at 18-19. According to Smith, the managers made a decision to place Plaintiff on "administrative leave, pending the results of the investigation . . . to protect [Plaintiff's] interest as well as the interest of others involved." Smith Aff. at 220. The managers informed Acting Postmasters James Knowles and Thomas Grill at the Elkins Park office via conference call that Plaintiff should be placed on emergency leave. Brenda Smith September 3, 2010 Deposition at 41, Ex. 12.

On the morning of March 21, 2007, Plaintiff was questioned by Postal Inspector Shawn Dougherty about the testimony given by Plaintiff about McGinn. Smith Aff. at 219-20. Shop steward Christopher Lanetti was also present at the meeting. Pl. Depo. at 80. According to Plaintiff, Dougherty was initially quite "robust" or "aggressive" towards Plaintiff, but his manner softened when Plaintiff explained that he had been involved in "whistle-blowing" prior to the EEOC hearing. Pl. Depo., pp. 82-83, 88. Plaintiff explained to the Postal Inspector that, early in March 2007, Plaintiff and Lanetti had met with Smith and another manager to discuss allegations of falsified "clock ring"*fn4 records by McGinn and then-Elkins Park Postmaster Howard Guertler. Pl. Depo. at 31-33. An investigation ensued, which discovered clock ring discrepancies. Smith Depo. At 17-19. Plaintiff believed that ...


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