Bridgeforth v. Potter

• Decision Date: 25 July 2011
• Docket Number: CIVIL ACTION NO. 3:10-cv-00030
• Court: U.S. District Court — Western District of Virginia
• Parties: RICHARD BRIDGEFORTH, Plaintiff, v. JOHN E. POTTER, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, Defendant.

RICHARD BRIDGEFORTH, Plaintiff,

v. JOHN E. POTTER, POSTMASTER GENERAL,UNITED STATES POSTAL SERVICE, Defendant.

CIVIL ACTION NO. 3:10-cv-00030

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA CHARLOTTESVILLE DIVISION

ENTERED: July 25, 2011

MEMORANDUM OPINION

NORMAN K. MOON

UNITED STATES DISTRICT JUDGE

By counsel, plaintiff filed a complaint alleging claims of race and age discrimination against his employer, the United States Postal Service ("USPS"). Before me now are defendant's motions for summary judgment and to dismiss the complaint for lack of jurisdiction. The motions have been briefed and argued and are ripe for disposition. For the reasons stated herein, I will grant the motion to dismiss; furthermore, given the evidence presented in support of the pending motions and at the hearings in this matter, I will, in the alternative, grant the motion for summary judgment.¹ ,²

I.

Plaintiff is employed by the United States Postal Service ("USPS") on Seminole Trail inCharlottesville, and has been employed with the USPS for at least thirty-three years. His job as a "nixie clerk" (a postal clerk who tracks dead letters) in Charlottesville has been eliminated and consolidated to other locations, or assigned to more senior personnel. Plaintiff has been offered and assigned other work with the USPS. Plaintiff has not been discharged, nor has he experienced any loss in pay or benefits. Nonetheless, plaintiff's counsel has asserted that, due to age and race discrimination, he is being forced out of the nixie clerk position, which is allegedly more "prestigious," and plaintiff contends that, if his nixie clerk position is eliminated, he will be "forced to bid on another more undesirable job," which will result in "irreparable injury" from working in an "unsafe environment where [his] hearing and sight will be permanently damaged. . . ."

Plaintiff states that, in November 2008, he returned from a period of annual leave to find that he had been moved out of his quiet, private office, into another "enclosed area" near the loading dock, where he is exposed periodically during the day to the noise of other USPS personnel sorting and loading mail, yet he complains that this location is "isolated." Plaintiff contends that the new work area is unsafe and "a little bit exposed to the elements," and that the move was motivated by race- and age-based animus. However, the government presented evidence that plaintiff was moved from the former office space, which he alone occupied, because there are fewer nixie clerks, given that the position is being eliminated, and the office was converted to the use of union representatives. Furthermore, the evidence indicates that plaintiff is not exposed to the elements, other than the occasional opening of doors, and that the intermittent noise of which he complains (from "traffic at that part of the post office") is no greater than that to which all the other employees in that area of the post office are periodically exposed. Plaintiff also complains that he formerly had insufficient light in the new work area,but concedes that the lighting issue was resolved after he complained to his union. And, to the extent plaintiff complains of having been audited for five days, the government's evidence indicates that such evaluations are performed "throughout the post office," and that the purpose of the audit is the USPS's ongoing cost-saving measures, which necessitates studying employees' jobs, and evaluating the options of consolidating and removing positions.³

Insofar as he claims that his new work area is "unsafe," or "a little bit exposed to the elements," the government's evidence tends to disprove these allegations, as did his own testimony. Regarding plaintiff's employment, plaintiff's counsel acknowledged that plaintiff "is still doing the same duties, he still has the same responsibilities," and the evidence introduced at the hearings in this matter indicates that plaintiff will continue to work in Charlottesville, that he ranks high in seniority at the Seminole Trail post office, that he still earns the same amount of money, and that the terms and benefits of his employment remain unchanged, save for his position having been eliminated and his being placed in an "unassigned regular" category.⁴

II.

A.

Count One alleges a Title VII race discrimination and harassment claim on the basis of work conditions. Plaintiff asserts, inter alia, that "Defendants wrongfully and without cause [sic] Plaintiff's Nixie Clerk position to be eliminated"; that "Defendants wrongfully and withoutcause denied Plaintiff [sic] and interfered with Plaintiff's terms and conditions of employment by making Plaintiff to work [sic] in a small, unsecured open area, when Plaintiff needed a closed, secured are in which to work"; that "Defendants wrongfully and without cause made Plaintiff work in unlighted and cold conditions, in attempts to prevent Plaintiff from working"; and that

Defendants wrongfully and without cause violated Plaintiff's EEO and privacy rights when USPS management conspired to open Plaintiff's work desk and take out his personal possessions, while he was away from the job. This was done without Plaintiff's knowledge and consent. according to the definition of hostile work environment[.]

(Verbatim quote.) Even though plaintiff has not been discharged and his pay has not changed in any way, he asserts that he "has suffered great hardship and severe emotional distress entitling him to his back and unpaid wages" and "lost retirement benefits."

Count Two alleges a Title VII violation on the basis of "race and opportunity for advancement." Plaintiff simply asserts, devoid of any other factual enhancement, that "Defendant discriminated against the Plaintiff by refusing to provide the Plaintiff an equal opportunity to fairly compete for advancement to a management position because of his race. . . ."

Count Three alleges a Title VII violation on the basis of "race retaliation." He asserts that "Defendant demonstrated retaliation and hostility on the part of the Post Office for filing discrimination complaint [sic]." Plaintiff basically asserts that the defendant failed to timely respond to his complaints and failed to keep him apprised of the status of investigations into his complaints.

Count Four alleges a "violation of the ADEA" (the "Age Discrimination in Employment Act") on the basis of "intentional discrimination." As with the other claims, he recitesconclusions of law as through they are factual assertions. Plaintiff does no state any specific conduct that could constitute any adverse action taken against him on account of his age.

Count Five alleges an ADEA violation on the basis of "retaliation." Although he submits no facts to support the assertion, he claims that he "has been retaliated against for complaining of the discriminatory treatment received from the United States Postal Service."

Count Six alleges an ADEA violation on the basis of "disparate impact." He alleges that "Defendants have . . . maintained policies and procedures which when applied, [sic] had a discriminatory and disparate impact on older employees, including Plaintiff."

Count Seven alleges a violation of the Civil Rights Act of 1991, on the basis of "loss of value and enjoyment of human life" and "hedonic damages." Plaintiff states that he "has been targeted, harassed, and otherwise had the terms and conditions of his employment altered because of intentional race discrimination." Otherwise the count asserts conclusions of law.

Count Eight alleges a "VIOLATION OF CIVIL RIGHTS ACT OF 1981 AND 1983 VIOLATIONS (Race)." Plaintiff adds that "[t]his is a proceeding for declaratory and injunctive relief and monetary damages to redress the deprivation of rights secured to plaintiff by the Civil Rigths Act of 1871, 42 U.S.C. §§ 1981 and 1983, as amended by the Civil Rights Act of 1991." Plaintiff asserts that "[t]he actions of defendant in eliminating [Plaintiff's] job title and subsequent harassment were racially motivated," and that "[w]hite employees of defendant have not been treated as harshly as Plaintiff." The count otherwise asserts conclusions of law.

Count Nine alleges a violation of the Virginia Human Rights Act on the basis of age. The allegations are conclusory, at best. Plaintiff adds that, "[a]s a direct and proximate result of said acts., Plaintiff has been damaged by this physically, emotionally and economically in that he has sustained damage to his psyche, stress and other physical pressure, and has lost pay as a result ofDefendants' attempts to abolish his position unjustifiably."

Count Ten alleges a violation of the Virginia Human Rights Act on the basis of "retaliation." Again, the allegations are conclusory, at best, and plaintiff again contends that, in spite of never having lost a day of employment or of pay, he "has lost pay. . . ."

Count Eleven alleges a violation of plaintiff's Fourth Amendment rights. He asserts that his property was illegally searched and seized.

Count Twelve alleges a violation of the Thirteenth Amendment, which abolished slavery and involuntary servitude, except as punishment for a crime. This is clearly a baseless and frivolous assertion. In any event, plaintiff asserts conclusions of law without any factual support.

Count Thirteen alleges a violation of plaintiff's "common law" "right to privacy." Plaintiff asserts that "[t]he actions of Defendant, its agents and employees constitute an invasion of Plaintiff's right to privacy."

Count Fourteen alleges "wrongful termination of position" and "breach of implied covenant of good faith and fair dealing."

Count Fifteen alleges "misrepresentation, fraud and deceit."

Count Sixteen alleges "INTENTIONAL, IMPROPER INTERFERNENCE [sic] WITH CONTRACTUAL RELATIONSHIP."

Count Seventeen alleges intentional infliction of emotional distress.

"COUNT EIGHTTEEN" [sic] alleges "negligent infliction of emotional distress."

"COUNT NINTEEN" [sic] ...