379 F.3d 1196 (10th Cir. 2004), 02-5196, Jordan v. United States Postal Service

Docket Nº:02-5196.
Citation:379 F.3d 1196
Party Name:Charles S. JORDAN, Jr., Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, John E. Potter, Postmaster, Defendant-Appellee.
Case Date:August 20, 2004
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1196

379 F.3d 1196 (10th Cir. 2004)

Charles S. JORDAN, Jr., Plaintiff-Appellant,

v.

UNITED STATES POSTAL SERVICE, John E. Potter, Postmaster, Defendant-Appellee.

No. 02-5196.

United States Court of Appeals, Tenth Circuit

August 20, 2004

Page 1197

Submitted on the briefs:[*] Jean Walpole Coulter of Jean Walpole Coulter and Associates, Inc., Tulsa, OK, and Brian A. Curthoys, Tulsa, OK, for Plaintiff-Appellant.

David I. O'Meilia, United States Attorney; Loretta F. Radford, Assistant U.S. Attorney, U.S. Department of Justice, Tulsa OK; and Eric J. Scharf, Managing Counsel, and Stephan J. Boardman, Counsel of Record, United States Postal Service, Washington, D.C., for Defendant-Appellee.

Before SEYMOUR, McKAY, and TYMKOVICH, Circuit Judges.

Page 1198

McKAY, Circuit Judge.

Appellant Mr. Jordan appeals from a judgment granted in favor of Appellee United States Postal Service on his claim pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 791-793. He also appeals from the district court's ruling that although Appellee violated the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601-2654, Appellant "has no grounds for relief under the FMLA because he has shown no actual damages or grounds for equitable relief as a result of the retaliatory behavior of [Appellee]." Aplt.App. at 31.

The parties do not object to the relevant findings of fact entered by the district court after a bench trial on the Rehabilitation Act and the FMLA claims. See id. at 13-18. We summarize the facts as follows. Appellant began his relevant tenure of work for Appellee in Tulsa, Oklahoma, in 1994 as a part-time flexible clerk. From October 1996 through August 1997, and from February 1998 through April 1998, Appellant worked as a relief clerk at the Postal Source Data System ("PSDS"). Employee attendance is an absolute requirement for working at the PSDS. Appellant had excessive absences from work. Of the 254 days Appellant was scheduled to work during the October 1996 through August 1997 period, Appellant took forty-nine days of FMLA leave, eleven days of non-FMLA leave, seventeen days of annual leave, and eight hours of emergency leave. Of the fifty work days Appellant was scheduled to work during the February 1998 through April 1998 period, he used two days of FMLA leave, five days of non-FMLA leave, and four days of annual leave.

On May 1, 1997, shortly after being diagnosed with post-traumatic stress disorder, severe anxiety, paranoia, bipolar personality, and depression, Appellant requested sixty days of medical leave, which was granted. On July 5, 1997, he returned to work. On July 28, 1997, he requested a transfer from Tulsa to the Dallas postal facility due to his disability.

Although the Tulsa facility recommended that the Dallas facility accept the transfer request, each postal district makes its own decision regarding employee transfers. In fact, the collective bargaining agreement between Appellee and its employees mandates that the facilities operate independently of each other with respect to employee transfers. Therefore, under the collective bargaining agreement, the Tulsa postal facility could not force the Dallas facility to take an employee who has requested a transfer. In September 1997, the Dallas postal facility denied Appellant's transfer request because of his unexplained excessive absences, but informed Appellant by letter that his transfer request would be reconsidered if he explained his absences. Appellant did not respond to this letter.

On August 7, 1997, Appellant and his union steward met with Appellant's supervisor. At that meeting, Appellant's supervisor informed him that if he had further absences he would be placed on restricted sick leave and be given a letter of warning. Three days after this meeting Appellant's position was reposted. The notice of this reposting gave Appellant an opportunity to rebid his job.

On August 20, 1997, Appellant received a letter from Appellee informing him that he was involuntarily reassigned to the Airport Mail Facility as an unassigned regular, effective immediately. The reassignment occurred prior to the conclusion of the rebidding for his previous job, contrary to the Tulsa facility's traditional procedure of allowing an employee to remain in his current position until the bidding process is complete. Appellee offered no documentation supporting the necessity for the

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early reposting of Appellant's job. At trial, a co-worker testified that Appellant's supervisor reposted Appellant's position to get rid of him. The co-worker further testified that when Appellant returned to work...

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