760 F.3d 1135 (10th Cir. 2014), 13-1096, Green v. Donahoe

Docket Nº:13-1096
Citation:760 F.3d 1135
Opinion Judge:HARTZ, Circuit Judge.
Party Name:MARVIN GREEN, Plaintiff - Appellant, v. PATRICK R. DONAHOE, Postmaster General, United States Postal Service, Defendant - Appellee
Attorney:John Mosby, (Elisa Moran and Marilyn Cain Gordon with him on the briefs), Denver, Colorado, for Plaintiff -- Appellant. Paul Farley, Assistant United States Attorney, (John F. Walsh, United States Attorney, with him on the brief), Denver, Colorado, for Defendant -- Appellee.
Judge Panel:Before HARTZ, McKAY, and MATHESON, Circuit Judges.
Case Date:July 28, 2014
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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760 F.3d 1135 (10th Cir. 2014)

MARVIN GREEN, Plaintiff - Appellant,

v.

PATRICK R. DONAHOE, Postmaster General, United States Postal Service, Defendant - Appellee

No. 13-1096

United States Court of Appeals, Tenth Circuit

July 28, 2014

Petition for certiorari filed at, 11/25/2014

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. No. 1:10-CV-02201-LTB-KMT).

John Mosby, (Elisa Moran and Marilyn Cain Gordon with him on the briefs), Denver, Colorado, for Plaintiff -- Appellant.

Paul Farley, Assistant United States Attorney, (John F. Walsh, United States Attorney, with him on the brief), Denver, Colorado, for Defendant -- Appellee.

Before HARTZ, McKAY, and MATHESON, Circuit Judges.

OPINION

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HARTZ, Circuit Judge.

Marvin Green, a former postmaster, claims that the U.S. Postal Service retaliated against him after he made employment-discrimination claims. He was investigated, threatened with criminal prosecution, and put on unpaid leave. Shortly after being put on leave, he signed a settlement agreement with the Postal Service that provided him paid leave for three and a half months, after which he could choose either to retire or to work in a position that paid much less and was about 300 miles away. Ultimately, he decided to retire. He then filed a complaint against Defendant Patrick Donahoe, the Postmaster General, in the United States District Court for the District of Colorado, alleging five retaliatory acts in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.: (1) a letter notifying him to attend an investigative interview; (2) the investigative interview; (3) a threat of criminal charges against him;

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(4) his constructive discharge; and (5) his placement on unpaid leave (also known as emergency placement). The district court dismissed the first three claims for failure to exhaust administrative remedies. On the two remaining claims it granted summary judgment for Defendant, ruling that the constructive-discharge claim was untimely and that emergency placement was not a materially adverse action. This appeal followed.

We have jurisdiction under 28 U.S.C. § 1291. We affirm the judgment below except for the emergency-placement claim. We agree with Green that the emergency placement was a materially adverse action (being put on unpaid leave would dissuade a reasonable employee from engaging in protected activity), and we remand the claim for further proceedings.

I. BACKGROUND

Green, who describes himself as a black American, began working for the Postal Service in 1973. He was a manager for 25 years, including 14 years as a postmaster. From 2002 until his retirement in 2010, he was the postmaster at the Englewood, Colorado, post office. At the time of the pertinent events, he had no disciplinary report in his permanent file.

In early 2008 a postmaster position opened in Boulder. Green applied for the position, but his supervisor, Gregory Christ, selected a Hispanic instead. In August 2008, Green filed a formal charge with the Postal Service's Equal Employment Opportunity (EEO) Office, alleging that he had been denied a promotion because of his race. That November, after the EEO Office had completed its investigation, Green requested a hearing before the Equal Employment Opportunity Commission (EEOC). The matter was settled.

In May 2009, Green filed an informal EEO charge alleging that the Postal Service had begun retaliating against him for his prior EEO activity. He alleged that Christ, his supervisor, had threatened, demeaned, and harassed him. He filed a similar informal charge in July, alleging that Christ and Jarman Smith, who had replaced Christ as Green's supervisor, had threatened, demeaned, and harassed him because of his race and his EEO activity regarding the Boulder position. In August the Postal Service's EEO Office completed its investigation of the May and July charges. It informed Green that he could file a formal charge, but he did not do so.

In November 2009, Green received a letter at his home from Charmaine Ehrenshaft, who was the Postal Service's Manager of Labor Relations for his district. The letter instructed Green " to appear for an investigative interview regarding allegations of non-compliance in the grievance procedure." Aplt. App., Vol. 2 at 433. The letter provides no specifics, but Defendant claims that Green was derelict in his handling of employee grievances between April and December of 2009, resulting in multiple adverse decisions that required the Postal Service to pay damages and penalties to grievants. Green asserts that he and his facility managers had contacted the appropriate person for assistance with the grievances but that the person would not help.

Ehrenshaft and her supervisor, David Knight, the Manager of Human Resources, conducted the investigative interview on December 11, 2009. Green was represented by Robert Podio of the National Association of Postmasters. During the interview Knight asked Green about the processing of grievances, about allegations that he had intentionally delayed the mail by failing to timely sign and return receipts for certified letters related to the grievances, and about allegations that he had sexually harassed a female employee.

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When the interview ended, two agents from the Postal Service Office of the Inspector General (OIG) arrived. Knight instructed Green to meet with them. The OIG, an independent branch of the Postal Service, had initiated its own investigation into delay of the mail, which can be a federal crime.

Knight and Ehrenshaft reappeared when the OIG interview ended. They gave Green a letter informing him that under the Postal Service's emergency-placement policy he was " placed in off-duty status immediately" because of " [d]isruption of day-to-day postal operations." Id., Vol. 3 at 600. It stated that under the policy " [t]he employee is returned to duty status when the cause for nonpay status ceases." Id. Knight ordered Green to surrender his Postal Service identification and cell phone and not to return to the Englewood post office.

Unknown to Green, the OIG agents had concluded at the end of the interview that Green had not intentionally delayed the mail. The next day, Podio began negotiating with Knight to resolve the matter. During negotiations Knight e-mailed Podio that the OIG was " all over" the delay-of-mail issue and that " the criminal issue could be a life changer." Id., Vol. 5 at 974.

On December 16, 2009, Green signed a settlement agreement. It provided that he would immediately give up his position as the Englewood postmaster and that he would use accrued annual and sick leave to receive pay until March 31, 2010, after which he could choose either to retire or to accept a position at significantly lower pay in Wamsutter, Wyoming, about 300 miles away. In exchange, the Postal Service agreed that " no charges will be pursued based on the items reviewed during interviews conducted on December 11, 2009." Id., Vol. 3 at 610. After Green signed, he was paid retroactively for the three days he had been on emergency placement.

On January 7, 2010, Green met with an EEO counselor and filed an informal charge alleging that he had been retaliated against on December 11, the day of the investigative interview, when he was removed from his postmaster position and was issued the emergency-placement letter. He filed the follow-up formal charge on February 17. The EEO Office dismissed the claim a few days later because Green had entered into a settlement agreement. The EEOC upheld the dismissal in August.

On February 9, 2010, Green submitted his retirement papers, effective March 31, 2010. On March 22 he initiated counseling. The Information for Pre-Complaint Counseling that he signed on March 31 alleged that he had been constructively discharged by being forced to retire. On April 23 he followed up with another formal charge. The EEO Office sent Green a letter on April 26 indicating that it had accepted three claims for investigation: (1) that he was constructively discharged (no date specified); (2) that he was downgraded from a level 22 postmaster to a level 13 postmaster on December 19, 2009; and (3) that his pay-for-performance salary increase was stopped. Green's attorney then sent the EEO Office a letter advising it that " the only issue that should be investigated by you is the constructive discharge claim," because the other two claims had been raised in the earlier February 17 charge and dismissed. Id., Vol. 1 at 83. The EEO Office issued a second acceptance letter acknowledging Green's request and stating that it would investigate only the constructive-discharge claim.

In September 2010 Green filed his complaint in this lawsuit. He filed an amended complaint in July 2011 alleging five retaliatory acts in violation of Title VII: (1) the letter notifying him of the investigative interview, (2) the investigative interview,

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(3) the threat of criminal prosecution, (4) his constructive discharge, and (5) the emergency placement.

The district court dismissed the first three claims for lack of subject-matter jurisdiction, ruling that Green had not exhausted his administrative remedies because he had not adequately presented those claims in his EEO charges. It later found that Ehrenshaft had in bad faith destroyed records of postal employees charged with misconduct similar to that alleged against Green. As a sanction, the court said that it would inform the jury that it could infer pretext from the destruction and would consider the same inference in ruling on a pending summary-judgment motion. The possible sanction was mooted, however, because in February 2013 the district court granted summary judgment for Defendant on the remaining claims. It ruled that Green's emergency placement was not a materially adverse employment action and that...

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