Basso v. Potter, 06cv1507(MRK).
| Decision Date | 09 January 2009 |
| Docket Number | No. 06cv1507(MRK).,06cv1507(MRK). |
| Citation | 596 F.Supp.2d 324 |
| Court | U.S. District Court — District of Connecticut |
| Parties | Mark A. BASSO, Plaintiff, v. John E. POTTER, Postmaster General, Defendant. |
Robert Burdette Mitchell, Sabrina N. Kiluk, Pullman & Comley, Bridgeport, CT, for Plaintiff.
David Christopher Nelson, U.S. Attorney's Office, Hartford, CT, Lauren M. Nash, U.S. Attorney's Office, New Haven, CT, for Defendant.
In this case, Plaintiff Mark A. Basso sues Defendant Postmaster General John E. Potter in a three-count Amended Complaint [doc. # 21]. Count One alleges disability discrimination on the basis of alcoholism in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. ("Rehabilitation Act"). Count Two claims interference with Mr. Basso's rights under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. ("FMLA"). Count Three seeks declaratory relief under 28 U.S.C. § 2201. The parties filed cross-motions for summary judgment in which Mr. Basso sought summary judgment on Counts Two and Three and in which Postmaster General Potter sought summary judgment on all counts of the Amended Complaint. See Pl.'s Motion for Summary Judgment [doc. # 41]; Def.'s Motion for Summary Judgment [doc. # 45]. Counsel represented to the Court at oral argument that Count Three is no longer in dispute, and the Court therefore dismisses Count Three of the Amended Complaint [doc. # 21]. For the reasons that follow, the Court DENIES Plaintiff's Motion for Summary Judgment [doc. # 41] and GRANTS in part and DENIES in part Defendant's Motion for Summary Judgment [doc. # 45].
The facts of this case are relatively straight-forward and largely uncontested. Mr. Basso was hired by the United States Postal Service ("USPS") effective June 29, 1987. He held various positions within the USPS, most recently as a full-time mail handler at the Southern Connecticut Processing & Distribution Facility in Wallingford, Connecticut, until he was terminated on February 6, 2004. Beginning in 1997 and continuing through 1999, Mr. Basso experienced disciplinary problems that included failures in timeliness, attendance, and compliance with instructions. These disciplinary issues resulted in the USPS issuing three Letters of Warning to Mr. Basso. Despite the Letters of Warning, Mr. Basso experienced further conduct-related difficulties in 2000. As a consequence, he entered into an agreement with the USPS in which he agreed to participate in a structured alcohol rehabilitation program and to refrain from "further substance abuse-related misconduct" and "substance abuse-related performance deficiencies after the completion of treatment." Nevertheless, Mr. Basso continued to demonstrate both conduct- and alcohol-related problems and was therefore issued Notices of Removal in November 2000 and June 2001. Although the November 2000 Notice of Removal was downgraded to a 14-day suspension, Mr. Basso was placed in off-duty status in June 2001. He returned to work at the Wallingford Facility in May 2002 under the express terms of a Last Chance Agreement ("LCA") that he executed with the USPS on May 23, 2002.1
The LCA recites that the Notice of Removal issued to Mr. Basso in June 2001 was issued for "just cause" and that the LCA constitutes a "last chance" for Mr. Basso to keep his job. See Aff. of Sabrina N. Kiluk in Supp. of Pl.'s Mot. for Summ. J. [doc. # 42] Ex. 3 at 1 [hereinafter Kiluk Aff.]. The agreement provided that the removal action would be held in abeyance for up to two years so long as Mr. Basso adhered to all of the provisions of the LCA and that if Mr. Basso did not "rehabilitate himself" or otherwise comply with the agreement's terms, "removal procedures shall be initiated by the setting of a new effective date of removal." Id. The LCA stated that in the event removal was necessary, the USPS would not be required to provide Mr. Basso with a thirty-day notice period.
Under paragraph 9 of the LCA, Mr. Basso faced disciplinary action up to and including removal for such issues as failing to participate in substance abuse treatment, failing to complete pre-identified treatment, engaging in substance abuse-related misconduct or performance deficiencies, failing alcohol testing, or failing to meet the attendance and/or documentation requirements under the LCA. See id. at 2-3. Under paragraph 17, Mr. Basso agreed to the following attendance requirements:
[Mr. Basso] will not experience more than five (5) unscheduled absences in each year of the agreement. In addition, he will not experience more than three (3) unscheduled absences in any 6 month period. Should he do so, he will be in violation of this Agreement. It is further understood that he will comply with the Labor Relations Manual Section 666.81 Requirement for Attendance which states "Employees are expected to maintain their assigned schedule and must make every effort to avoid unscheduled absences." (An unscheduled absence for the purpose of this agreement is any absence not protected by FMLA and not requested and approved in advance, utilizing a PS Form 3971, including, but not limited to, Sick Leave, Emergency Annual Leave, Leave Without Pay, Tardiness, Short Hits, Lates or Failing to Report as Scheduled for Overtime or Holidays.). It is clearly understood that unscheduled absences may be approved for pay purposes only.
Id. at 4. The parties agreed at oral argument that for purposes of this case, an "unscheduled absence" under the LCA is any absence not protected by FMLA or not requested and approved in advance, utilizing a PS Form 3971. Paragraph 19 of the LCA recited that Mr. Basso understood that Id. at 4.
Even after signing the LCA, Mr. Basso experienced numerous absences that the Court will address in greater detail later. Suffice it to say that the dates and asserted reasons for these absences are as follows: (1) September 20, 2003 for "impingement syndrome," which the USPS classified as absent on overtime ("AOT"); (2) October 27, 28, 29, 30 and 31, 2003 for bronchitis, which the USPS classified as leave without pay ("LWOP") in lieu of sick leave; (3) December 27, 2003 for "subluxation knee," which the USPS classified as AOT; (4) January 23, 2004 for substance abuse, which the USPS classified as absent without leave ("AWOL"); and (5) January 24, 2004 for substance abuse, which the USPS classified as AOT. As a result, on February 6, 2004, the USPS issued an official notice to Mr. Basso that he had violated the terms of his LCA and would be terminated effective on his receipt of the notice. See Kiluk Aff. [doc. # 42] Ex. 4. The notice cited Mr. Basso's violation of Paragraphs 1, 3, 4, 9, 17, 19, 20, and 26 of the LCA. See id. In particular the notice stated that Mr. Basso violated paragraphs 9 and 17 of the LCA for: (1) exhibiting substance abuse-related deficiencies in violation of subparagraph 9e as a result of his January 23 and 24, 2004 absences that were attributed to drinking; (2) failing to meet his attendance requirements in violation of subparagraph 9h; and, (3) experiencing more than five unscheduled absences in a year and three unscheduled absences in a six-month period—with reference to each of the above-listed absences from September 2003 to January 2004—in violation of paragraph 17. Mr. Basso filed a formal complaint with the Equal Employment Opportunity Commission (EEOC) on September 14, 2005, which was dismissed on the ground of untimely EEO Counselor contact. See id. Ex. 25.
Mr. Basso then brought this action, in which he claims that he was terminated on the basis of his alcoholism, and further, that each of his absences was FMLA-protected, that the USPS interfered with his rights under the FMLA, and that he was found to have violated his LCA as a result the USPS's interference with his FMLA rights. Postmaster General Potter denies that the USPS engaged in any disability discrimination and further denies that any of Mr. Basso's numerous absences qualified as FMLA leave. Instead, he argues that Mr. Basso violated his LCA and was thus terminated under the express provisions of the May 23, 2002 Last Chance Agreement with the USPS.
The summary judgment standard is a familiar one. Summary judgment is appropriate only when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "A dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir.2006) (quotation marks omitted). "The substantive law governing the case will identify those facts that are material, and `[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.'" Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 59 (2d Cir.2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
The moving party bears the burden of demonstrating that no genuine issue exists as to any material fact, see Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and the Court must resolve all ambiguities and draw all inferences in favor of the non-movant. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir.2008). If the moving party carries its burden, the party opposing summary judgment "may not rely merely on allegations or denials."...
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