Davis v. US Postal Service

Decision Date11 July 1996
Docket NumberCivil Action No. 95-WY-1421-AJ.
Citation934 F. Supp. 1210
PartiesJanet DAVIS, Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant.
CourtU.S. District Court — District of Colorado

John F.X. McBride, Hart & Trinen, Denver, CO, John Joseph Zodrow, Denver, CO, for plaintiff.

William G. Pharo, United States Attorney's Office, Civil Division, Denver, CO, for defendant.


ALAN B. JOHNSON, Chief Judge, sitting by designation.

This matter comes before the Court on the motion of the defendant for judgment as a matter of law, which was argued by the parties at the end of the plaintiff's case-in-chief. The motion seeks dismissal of the plaintiff's claims arising out of her employment with the United States Postal Service "USPS". The plaintiff has proceeded to trial on Claims 1, 4 and 11 of her complaint after entry of summary judgment and dismissal of all other claims. Plaintiff has asserted that she is entitled to relief for injury caused by intentional discrimination in the terms and conditions of her employment on the basis of handicap (major depression); sexual harassment; and retaliation. The Court will grant the motion for judgment as a matter of law, dismissing this case and discharging the jury.


Janet Davis was a full time career employee of the USPS. She worked as a postal training technician at the Postal Education and Development Center "PEDC" in Denver, Colorado. In August, 1990, she had worked as a training technician for eight years when she was approached by a telephone call to her home from Postal Inspector, Donald Fox, who arranged a meeting between Davis and Fox at a local restaurant. Fox's partner, Inspector Lemke, also attended this meeting. The Inspectors initiated discussion with Davis seeking her assistance as a confidential informant supporting the efforts of USPS to identify, prosecute and remove from postal service employment persons who were trafficking in controlled substances. In December, 1990, despite grave concerns on the part of Davis, reluctantly she agreed to act as a confidential informant.

A key element of the agreement of Davis and Fox included her belief that her identity would be shielded not only from the targets of the drug investigations, but also from all others at the workplace. Inspector Fox informed her that her identity would only be revealed in the unlikely event that any of the targeted employees would elect to have their cases tried or in the event that disclosure of her identity would be directed during an employment arbitration action.

Just as predicted by Inspector Fox, Janet Davis proved to be an effective informant. By June, 1991, arrest warrants were executed. Through Davis, three cases involving cocaine delivery by postal service employees were successfully prosecuted in state courts and, as stated by Inspector Fox, the defendants pleaded to the charges. Two of the employees also relinquished their employment with the USPS. The third employee, Fitzwater, elected to contest his employment termination action and with the support and assistance of the very same union that included Janet Davis as a member proceeded to seek aggressively the identity of the confidential informant. Davis's identity was ordered disclosed by the arbitrator. Davis was devastated by this information. It seemed that the April, 1992 arbitrator's order was to require formal disclosure of her identity and subject her to interviews concerning her clandestine activities on behalf of her employer.

At the time of the arrest of the employees, Davis was moved to Des Moines, Iowa for several weeks on a temporary assignment to divert attention from her within her usual workplace. When she returned to Denver in August, 1991, Inspector Fox continued to share Davis's concern not only for possible abuse from fellow employees at PEDC, but also for her physical safety. Arrangements were made to place Davis in a temporary job with the communications section at the USPS headquarters at Park Place in Denver. Although the communications office was staffed and budgeted for two persons, Mr. Budny and Mr. Turner, employees from other parts of the USPS would receive temporary assignments to communications. This was often arranged where an employee was receiving workers' compensation for a job-related condition and could not yet return to work in his or her section.

Janet Davis was assigned to communications for an extended period of up to one year. Although Davis continued to feel fear and shunning from her workplace at PEDC, she felt safe at communications and found that she enjoyed the work immensely. Mr. Turner and Mr. Budny were well satisfied with her work, even though in April, 1992, they noticed that she would become very upset at work as she learned that her identity would be disclosed to Fitzwater.

During the plaintiff's employment at communications, another employee by the name of McMullin was also assigned to communications while his shoulder condition was being evaluated by workers' compensation. He possessed skill as a photographer which could be put to use in the communications section. McMullin soon targeted Janet Davis for his unwelcome attentions. Through the fall of 1991 he would hug her and occasionally kiss her at work. No one witnessed this conduct except Davis and she mentioned it to no one. However, in early March, 1992, the supervisor, Mr. Budny, walked by as McMullin gave Davis a sort of sideways hug. Budny immediately counselled McMullin that his conduct was unacceptable. That did not deter McMullin, who, according to the plaintiff, stated to her almost immediately after his counselling that "you know you love it." The next day, McMullin assaulted Davis by pressing against her and making pelvic thrusts. This time the plaintiff complained to Mr. Turner, her immediate supervisor at communications. Turner took the matter to Budny and within a short time, both Turner and Budny went to the Equal Employment Opportunity ("EEO") counsellor, Ms. Kadison, who asked them to send Davis to her for interview and counselling. After counselling with Davis, Kadison briefly discussed the matter with Budny and informed him that she would handle the situation informally. Within four days, McMullin was assigned away from communications and any further contact with Janet Davis.

The proverbial "final straw" for Janet Davis was when she was informed by "buck slip" that her one year assignment at communications was over and she was to return to her old job and job location at PEDC to face whatever accusations and events that might await her there. She sought the assistance of Inspector Fox, who tried to intervene for her with Mr. Beebe, the division manager. Inspector Fox's efforts did not succeed and by August 20, 1992, coincidentally the date that Davis was scheduled to be interviewed in the Fitzwater arbitration, plaintiff had decided to avoid the problem altogether by filing for workers' compensation and not returning to work. This decision was supported by her psychologist, with whom she had been counselling since May, 1992.

Almost one year after Davis left her job and after being awarded workers' compensation for job-related major depression, Davis initiated EEO counselling. A Final Interview Letter occurred in November, 1993, and with it Davis was furnished forms and instructions that if she wished to file a formal EEO Complaint, it was to be sent to the Regional Office at San Bruno, California. Although whether the filing of a formal EEO Complaint occurred is a disputed issue, it is clear that no such complaint has come into evidence and there is no evidence that such a complaint was ever received by the Regional Office.


Rule 50(a) of the Federal Rules of Civil Procedure provides:

(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.
(2) Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment.
A. Timeliness issues

The initial issue raised by the defendant during the hearing on the motion for judgment as a matter of law concerns the timeliness of plaintiff's claims and her contacts with the EEOC. The parties all agree that under the applicable EEOC regulations, federal employees must bring a discrimination complaint to the attention of an EEO counselor forty-five days following the alleged discrimination. 25 C.F.R. § 1614.105(a)(1). These time limits are similar to a statute of limitations period. An individual who has failed to comply with the administrative timing requirements is barred from bringing an action in federal court, absent grounds for equitable tolling. See e.g., McAdams v. Reno, 858 F.Supp. 945, 947 n. 1 (D.Minn.1994); Pinder v. Levitt, Unreported decision, Text at 1995 WL 329442 (S.D.N.Y.1995); Ciampa v. Runyon, Unreported decision, Text at 1996 WL 146283 (D.Mass.1996); Fidis v. Lakeside Medical Center, Unreported decision, Text at 1995 WL 387582 (N.D.Ill.1995); Abdullah-Johnson v. Runyon, Unreported decision, Text at 1995 WL 118268 (E.D.Pa.1995).

Here, the evidence is clear that the plaintiff's formal complaint was not commenced within the applicable 45 day period and thus, the issue is whether there are grounds for equitable tolling of this period.

The Court has considered the evidence presented by the plaintiff during her case-in-chief and is unable to find any evidence...

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