Colbert v. Potter

• Decision Date: 15 December 2006
• Docket Number: No. 05-5330.,05-5330.
• Parties: Venita COLBERT, Appellant v. John E. POTTER, Postmaster General United States Postal Service, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

471 F.3d 158

Venita COLBERT, Appellant v. John E. POTTER, Postmaster General United States Postal Service, Appellee.

No. 05-5330.

United States Court of Appeals, District of Columbia Circuit.

Argued October 13, 2006.

Decided December 15, 2006.

Appeal from the United States District Court for the District of Columbia (No. 04cv00996).

Judith L. Walter argued the cause and filed the briefs for appellant.

Peter S. Smith, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Kenneth L. Wainstein, U.S. Attorney at the time the brief was filed, and R. Craig Lawrence, Assistant U.S. Attorney. Michael J. Ryan, Assistant U.S. Attorney, entered an appearance.

Before: SENTELLE, Circuit Judge, and EDWARDS and WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

Concurring opinion filed by Circuit Judge SENTELLE.

EDWARDS, Senior Circuit Judge.

Appellant Venita Colbert seeks review of the District Court's dismissal of her complaint against appellee John E. Potter in his official capacity as Postmaster General of the United States Postal Service ("USPS"). The complaint alleges that appellant's supervisor discriminated against her on the basis of her race, sex, age, and disability and also improperly retaliated against her for initiating a discrimination complaint, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 (2000), the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621-634 (2000), and the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-796l (2000).

Under Title VII, USPS employees are required to file lawsuits seeking relief for employment discrimination within 90 days of receipt of notice of final administrative action. 42 U.S.C. § 2000e-16(c). Equal Employment Opportunity Commission ("EEOC") regulations also require a claimant "under title VII, the ADEA and the Rehabilitation Act to file a civil action in an appropriate United States District Court . . . [w]ithin 90 days of receipt of the final action on an individual or class complaint." 29 C.F.R. § 1614.407(a) (2006). There is no dispute here that appellant's counsel received a copy of USPS's Final Agency Decision ("Final Decision") against Colbert. Nor do the parties dispute the filing date of appellant's complaint. The question at issue here concerns the date when appellant received notice of the Final Decision denying her administrative claims. The District Court, relying on the date stamped on the back of a USPS Form 3811 (the "Domestic Return Receipt"), found that "the name and signature of Colbert's counsel clearly appears, just above a postmark of `Mar 18 2004.'" Colbert v. Potter, Civ. A. No. 04-996, 2005 WL 3273571, at *4 (D.D.C. July 28, 2005). On the basis of this evidence, the District Court agreed with USPS "that Colbert's counsel received the Final Agency Decision on March 18, 2004 — 92 days before Colbert filed suit, which would render her action untimely." Id.

Before both the District Court and this court, appellant "challenges the March 18, 2004 postmark on the return receipt card, arguing that `the postmark showing the date of mailing would appear on the reverse side of the card in the area where the postage is to be affixed,' and that because USPS `has not provided an image of the reverse side of the card,' it should be presumed that the reverse of the card bears a postmark with a later date." Id. (quoting Plaintiff's Memorandum of Points and Authorities in Support of Opposition ("Opposition Memorandum"), reprinted in App. 53-73). The District Court rejected this argument, noting that appellant "neither dispute[d] that the return receipt card bears her attorney's signature nor challenge[d] the legitimacy of the postmark on the card." Id. Because appellant offered no "affidavit or other evidence that would contravene the return receipt postmark," the District Court granted USPS's motion to dismiss or in the alternative for summary judgment. Id.

Following oral argument before this court, USPS filed a motion, pursuant to Federal Rule of Appellate Procedure 10(e)(2)(C), for leave to submit a complete copy of the Domestic Return Receipt. On the same day, on its own motion, the court directed USPS to submit a copy of the front half of the Domestic Return Receipt. Appellant then filed a response to USPS's submission, after which the court ordered USPS to file the original Domestic Return Receipt. Upon examination, the front half of the receipt positively confirms that appellant's counsel received USPS's Final Decision on or before March 18, 2004, making this action untimely. Accordingly, we affirm the judgment of the District Court.

I. BACKGROUND

The background facts in this case are carefully set forth in the District Court's unpublished Memorandum Opinion. Because there is nothing to add to the District Court's statement, we have incorporated it as a part of our Background section:

Colbert is an African-American woman over 40 years old who suffers from degenerative disk disease, "a painful back ailment which is aggravated by certain types of physical activity." Compl. ¶ 5. She began her employment with the United States Postal Service on June 10, 1985. By 1992, Colbert had been promoted to Supervisor of the Telephone Operators, at an EAS-15 grade and pay level, within USPS' national headquarters at L'Enfant Plaza in Washington, D.C. Id. ¶ 7. In this position, she received favorable performance reviews, promotions and increases in pay until 1995. Id. ¶ 8. In 1994, USPS hired Billy Wesson as Manager of Headquarters Facility Services. His responsibilities included telephone operations, placing Colbert under his supervision. Id. ¶ 9. Shortly after Wesson arrived, Colbert allegedly began experiencing discriminatory treatment at his hands.

According to Colbert, Wesson "favored and handed out promotional opportunities to males, who like himself, had a military background," while treating Colbert and other African-American women under his management unfavorably. Id. ¶ 11. Colbert further alleges that Wesson was hypercritical of her work, consistently made demeaning comments, questioned her use of leave, praised others but not her for good performance, and imposed conditions on her that were not imposed on other employees. Id. ¶ 12.

Colbert perceived that Wesson was either trying to harass her into resigning or setting her up for termination, so she began to explore opportunities to be "detailed" to other departments at USPS headquarters. Id. ¶ 14. When Colbert discussed her desire for a work detail and its associated promotional and training opportunities with Wesson, he responded that "he could demote her to a custodial position on the night shift" at a lower grade and pay level. Id. ¶ 15. Colbert persisted in her efforts, and in early 1998 she found a detail to the Employment Development office as a training development specialist. Colbert needed to get Wesson's approval in order to take the detail. Wesson, however, bristled at this idea, and ordered Colbert not to contact the manager in Employee Development. A few days later, on April 7, 1998, Wesson gave Colbert a "developmental assignment" to the mail room as "Supervisor, Mail Messenger," telling Colbert that she would have to take this assignment before she could be considered for the Employee Development detail. At the same time as he assigned Colbert to the mail room, Wesson appointed four African-American men, younger than Colbert and with military backgrounds, to "higher positions at higher pay levels." Id. ¶¶ 16-20.

After completing the mail room assignment, mostly consisting of physical labor which aggravated her degenerative disk disease, Colbert obtained her detail to Employee Development in August 1998. She received higher pay at the EAS-21 level, and acquired job duties in line with her education, experience, and desires. Wesson, however, interfered with Colbert's prospects for permanent employment with Employee Development, and in February 1999 demanded that she return to his department. Id. ¶¶ 22-23. Upon Colbert's return, Wesson immediately sent her out on a detail to the purchasing department, recalled her once more, and then assigned her to work in Operating Services, "the manual labor-custodial-maintenance section of Headquarters Facility Services." Id. ¶¶ 23-25. Colbert's responsibilities there included restocking first aid kits and cleaning supplies, taking walking tours of the building, and checking the expiration date on fire extinguishers. Id. ¶¶ 26-27. Once again, the job involved physical exertion which inflamed Colbert's back condition. This shuffling of work assignments was "designed and intended . . . to harass her into quitting," id. ¶ 28, and effectively "divested [Colbert] of her supervisory responsibilities," id. ¶ 24.

During July and August 1999, Weston subjected Colbert to a higher level of scrutiny and discipline than he applied to her co-workers, and which "had no basis in official Postal Service personnel policies." Id. ¶ 29. Wesson obtained Colbert's work telephone records and accused her of making excessive personal calls while on the job. For this offense, on September 3, 1999 Wesson issued Colbert a proposed Letter of Warning in lieu of a seven day time off suspension. Id. ¶¶ 29-33. When Colbert appealed this disciplinary action on September 15, 1999, Wesson "became angry and loud," id. ¶ 33. On September 23, 1999 he sustained the Letter of Warning and threatened Colbert with further discipline if she "continued to use Postal property for personal reasons." Id. ¶ 34.

On September 7, 1999, Colbert initiated precomplaint counseling with the Postal Service's [Equal Employment Opportunity ("EEO")] office. Id. ¶¶ 35. When the EEO counselor sent questions to Wesson as part of the investigation into Colbert's filing, Wesson called Colbert into his office and handed her a memorandum stating that she was now assigned to the...