Curry v. United States Postal Service, C-1-82-1526.

• Decision Date: 26 March 1984
• Docket Number: No. C-1-82-1526.,C-1-82-1526.
• Citation: 583 F. Supp. 334
• Parties: Brenda CURRY, Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant.
• Court: U.S. District Court — Southern District of Ohio

583 F. Supp. 334

Brenda CURRY, Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant.

No. C-1-82-1526.

United States District Court, S.D. Ohio, W.D.

March 26, 1984.

COPYRIGHT MATERIAL OMITTED

Robert F. Laufman, Cincinnati, Ohio, for plaintiff.

Elizabeth Gere Whitaker, Asst. U.S. Atty., Cincinnati, Ohio, Mary S. Elcano, Washington, D.C., for defendant.

SPIEGEL, District Judge:

This matter came on for hearing on defendant's motion for partial dismissal or in the alternative for partial summary judgment (doc. 21), plaintiff's response (doc. 22) and defendant's reply (doc. 25). Also before the Court is plaintiff's supplemental memorandum (doc. 27) as plaintiff's motion for leave to file this supplemental memorandum was granted (doc. 30). Defendant's motion for a preliminary hearing on its motion pursuant to Rule 12(d), Fed.R. Civ.P., was granted (doc. 26). Plaintiff also filed proposed findings of fact and conclusions of law (doc. 31).

The question presented is whether plaintiff exhausted her Equal Employment Opportunity (EEO) administrative remedies for her 1979 and 1981 claims of discrimination. For reasons that follow, the Court finds that these 1979 and 1981 claims are properly before this Court. Accordingly, defendant's motion is denied.

I.

Plaintiff, Brenda Curry, a former employee of the United States Postal Service (USPS), brings this action pursuant to § 717 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, alleging discrimination in employment on the basis of race and physical handicap. Section 717 also applies to handicap discrimination complaints. Section 505(a) of the Rehabilitation Act of 1973, 29 U.S.C. § 794a(a).

Plaintiff contends she was denied on-the-job training and subjected to discriminatory discipline on the basis of her race and physical handicap and in retaliation for EEO complaints that she had filed. In particular, she challenges (1) a May 22, 1979 letter of warning for unscheduled absences¹; (2) a November 29, 1979 five-day suspension for unscheduled absences subsequently reduced to a three-day suspension; (3) an April 10, 1980 fourteen-calendar-day suspension for failure to maintain a regular schedule; and (4) a discharge for unscheduled absences effective August 25, 1981.

Defendant's motion addresses the May, 1979 warning letter, the November, 1979 suspension, and the August, 1981 discharge. With respect to each of these adverse personnel actions, defendant alleges that plaintiff failed to exhaust her administrative remedies and concludes that the claims based on these actions must be dismissed.

Plaintiff, on the other hand, maintains with respect to both her 1979 claims and her 1981 claims that defendant's failure to make reasonable accomodations for her handicap constituted a continuing violation that excused her from filing an EEO complaint for each violation. With respect to her 1981 claim, plaintiff asserts that defendant's motion should be denied on equitable tolling grounds.²

The narrow question which we must decide is whether there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law on each of those issues raised by defendant's motion." Rule 56(c), Fed.R.Civ.P. The Court cannot try issues of fact on a Rule 56 motion but is empowered to determine only whether there are issues to be tried. In re Atlas Concrete Pipe, Inc., 668 F.2d 905, 908 (6th Cir.1982). The moving party "has the burden of showing conclusively that there exists no genuine issue as to a material fact and the evidence together with all inferences to be drawn therefrom must be read in the light most favorable to the party opposing the motion." Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.), cert. dismissed, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979). And while the movant's papers are to be closely scrutinized "those of the opponent are to be viewed indulgently." Id. at 63.

II.

As a preliminary matter we note that defendant has moved to have the USPS dismissed and William F. Bolger, Postmaster General, substituted as defendant. The statute is clear that the proper defendant in a Title VII action against a federal employer is not the department, agency or unit but rather the head of the department, agency or unit. 42 U.S.C. § 2000e-16(c). The motion is granted.

III.

Brenda Curry was hired by the USPS as an automated mark-up clerk August 28, 1978. Plaintiff testified that before she was hired she disclosed her arthritic condition and that defendant was advised she could not lift more than forty pounds. Her testimony is corroborated by the pre-appointment certificate of medical examination; in a handwritten notation in the box labeled conclusions the examining physician stated "no lifting over 40 lbs" (def. exh. Z). Mark-up clerks are required to lift and carry trays of mail which, according to plaintiff, weigh up to fifty pounds.

Plaintiff advised her supervisor in October, 1978 that lifting the mail trays was aggravating her arthritic condition. She testified that the lifting caused her hands and wrists to swell. She added that the aggravation of her arthritis forced her to take sick time, all of which she alleges was closely monitored by her employer. Plaintiff further testified that she continued to get lifting assignments until her discharge in August, 1981 despite repeated complaints to her supervisors, union and EEO counselor. Plaintiff contends that defendant's action constituted a failure to make reasonable accomodations to her handicap as required by the Rehabilitation Act of 1973 and 29 C.F.R. § 1613.704. Although the testimony just outlined goes to the merits of plaintiff's claims and thus is not at issue at this time, it is important in establishing the context out of which plaintiff's discrimination claims arose.

IV.

Plaintiff alleged in an informal EEO complaint January 30, 1979 that she had been denied training and details or typing assignments to higher-level position on the basis of race. See def. exh. D, informal complaint of discrimination based upon the April, 1980 suspension which states that "complainant ... feels a reprisal ... has been taken against her for filing a previous complaint (1/30/79)." Plaintiff did not pursue the January, 1979 complaint and it is not a part of this lawsuit. It is pertinent, however, in that some of plaintiff's reprisal claims refer to this informal EEO complaint.

Defendant's motion addresses two 1979 adverse personnel actions. The first is a letter of warning dated May 22, 1979 listing twenty unscheduled absences (def. exh. C). Plaintiff did not file an informal complaint with respect to this letter. The second is a five-day suspension which plaintiff received November 29, 1979, also because of unscheduled absences (def. exh. E). Plaintiff did not file an informal complaint with respect to this suspension. Plaintiff did, however, grieve this suspension pursuant to grievance and arbitration provisions of the collective bargaining agreement between the USPS and plaintiff's union. As a consequence the suspension was reduced to three days.

In early April, 1980 plaintiff received notice of a fourteen-day suspension effective April 23, 1980. This fourteen-day suspension is not at issue for purposes of the motion as defendant acknowledges that plaintiff exhausted her administrative remedies with respect to this adverse personnel decision. However, the steps taken by plaintiff with respect to this suspension are important for establishing the grounds for her arguments with respect to the 1979 and 1981 actions.

The letter informing plaintiff of the fourteen-day suspension states that the disciplinary action was taken because of plaintiff's failure to maintain a regular schedule and lists the dates of her allegedly unscheduled absences (def. exh. F). On April 9, 1980 plaintiff had an initial interview with EEO Counselor Clarence Johnson. Plaintiff testified that during that interview she told Mr. Johnson that she believed she was denied training because of her race, that the suspension was in retaliation for her earlier EEO charge, and that she was having problems because of the lifting she was required to do. Although Mr. Johnson testified that plaintiff never raised handicap discrimination with him, he also testified that he had no independent recollection of any counseling sessions with her. Consequently, we find the plaintiff's version of what occurred at those sessions more credible.

Mr. Johnson filled out a form labeled "Informal Complaint of Discrimination in the U.S. Postal Service" (def. exh. D), presumably during or shortly after the initial interview. The informal complaint states:

Complainant alleges continuous racial discrimination for being denied training on the job she was hired for. In addition, she feels a reprisal (5 and 14 day suspension) has been taken against her for filing a previous complaint (1/30/79).

The printed complaint form had a section labeled "Kind of Complaint (check one)" followed by eight boxes. An "X" appears in the box labeled "Reprisal". The typed note, "previous complaint filed 1/30/79" appears next to this box. The boxes labeled "Race or Color" and "Handicap" are not checked.

Plaintiff had a final interview with Mr. Johnson about the fourteen-day suspension May 8, 1980. That fact is noted on the informal complaint. Attached to the complaint are Mr. Johnson's reports of his interviews with plaintiff, her supervisor, and her manager plus a description of Mr. Johnson's efforts at informal resolution.

A "Notice of Final Interview with EEO Counselor" dated May 8, 1980 was issued to plaintiff by Mr. Johnson (def. exh. G). Also a printed form with blanks for the name of the complainant and the date of the final interview, the form contains signature lines for the complainant and the EEO counselor. The notice is signed by the plaintiff and Mr. Johnson. The first two paragraphs of the printed form read as follows:

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