United States District Court, M.D. Pennsylvania
STANLEY J. RZUCIDLO, Plaintiff
JOHN M. McHUGH, SECRETARY OF THE ARMY, DEPARTMENT OF THE ARMY, UNITED STATES OF AMERICA, Defendant
For Stanley J Rzucidlo, Plaintiff: Harry T. Coleman, Law Office of Harry Coleman, Carbondale, PA.
For John M. McHugh, United States Of America, Department of The Army, Secretary of the Army, Defendants: Kate L. Mershimer, U.S. Attorneys Office, Harrisburg, PA.
JAMES M. MUNLEY, United States District Judge.
Before the court is defendant's motion for summary judgment. (Doc. 37). This motion is fully briefed and ripe for disposition.
The instant age discrimination action arose from Plaintiff Stanley Rzucidlo's (hereinafter " Rzucidlo" ) termination as an employee with Tobyhanna Army Depot (hereinafter " Tobyhanna" ). The undisputed material facts as presented by both parties are as follows:
On April 14, 2004, Tobyhanna hired Rzucidlo, born in 1956, as a Physical Science Technician, GS-09. (Doc. 25, Def.'s Statement of Material Facts (hereinafter " SOF" ) ¶ 1). While on official duty time at Tobyhanna, Rzucidlo offered a female coworker gifts including four (4) coupons to a woman's lingerie store, a ring, food and $100. (Doc. 31, Decl. of Stanley Rzucidlo (hereinafter " Rzucidlo Decl." ) ¶ 20; Doc. 25-1, EEOC decision dated Nov. 16, 2011 at 90).
On December 22, 2004, Rzucidlo's direct supervisor counseled him, verbally and in writing, to refrain from any and all contact with his female coworker. (SOF ¶ 3; Rzucidlo Decl. ¶ 21). Less than two months later, however, Rzucidlo sent an email from his Tobyhanna computer to his female coworker. (SOF ¶ 4; Rzucidlo Decl. ¶ 12). As a result of this contact, Tobyhanna terminated Rzucidlo's employment on February 23, 2005 for conduct unbecoming a federal employee and misuse of government property/resources. (SOF ¶ 5; Doc. 25-1, Rzucidlo termination letter dated Feb. 23, 2005 at 3-5).
Rzucidlo's initial EEO contact
Rzucidlo's termination letter informed him that he had a right to contact Tobyhanna's Equal Employment Opportunity (" EEO" ) office if he believed his termination was motivated by discriminatory animus. (SOF ¶ 6). On April 3, 2005, Rzucidlo emailed the EEO office stating that Tobyhanna discriminated against him. (Id. ¶ 7). The EEO office manager mailed discrimination complaint intake forms to Rzucidlo, which he received on April 12, 2005. (Id. ¶ 8). Rzucidlo failed to complete
and return the discrimination intake forms. Because Rzucidlo failed to respond, the EEO office manager mailed a second set of discrimination intake forms to him three weeks later. (Id. ¶ 9). The EEO office manager informed Rzucidlo that he was required to file a formal age discrimination complaint within fifteen (15) days or risk having his complaint dismissed as untimely. (Id. ¶ 10). Rzucidlo, however, failed to ever file a formal complaint of age discrimination with Tobyhanna's EEO office. (Id. ¶ 11).
Rzucidlo's Whistleblower Complaint to the OSC
Instead of filing a formal age discrimination complaint with Tobyhanna's EEO office, Rzucidlo filed a whistleblower claim with the United States Office of Special Counsel (" OSC" ). (Id. ¶ 12). Rzucidlo's whistleblower claim alleges that his supervisors engaged in a number of prohibited practices, none of which included age discrimination. (Id. ¶ 13). The OSC made a preliminary determination that no violation had occurred. (Id. ¶ 14).
Rzucidlo's Merit Systems Protection Board appeal
On July 31, 2005, five months after he was terminated, Rzucidlo filed an Individual Right of Action appeal of his termination and the OSC's decision with the Merit Systems Protection Board (hereinafter the " Board" ). (Id. ¶ 16). In his appeal to the Board, Rzucidlo, for the first time, raised an additional allegation of age discrimination. (Id. ¶ 17). On November 29, 2005, the Board's Administrative Law Judge (" ALJ" ) upheld the OSC's decision. (Id. ¶ 19). Additionally, the ALJ refused to rule on Rzucidlo's age discrimination claim because its jurisdiction was limited to only those claims within Rzucidlo's OSC complaint, and the age discrimination claim was not raised until his appeal of the OSC's decision. (Id. ¶ 18). Subsequent to the ALJ's decision, ...