Diaz v. US Postal Service

• Decision Date: 23 March 1987
• Docket Number: Civ. No. CV-F-84-407-MDC.
• Citation: 658 F. Supp. 484
• Court: U.S. District Court — Eastern District of California
• Parties: John A. DIAZ, Plaintiff, v. UNITED STATES POSTAL SERVICE, and Preston R. Tisch, Postmaster General of the United States, Defendant.

658 F. Supp. 484

John A. DIAZ, Plaintiff, v. UNITED STATES POSTAL SERVICE, and Preston R. Tisch, Postmaster General of the United States, Defendant.

Civ. No. CV-F-84-407-MDC.

United States District Court, E.D. California.

March 23, 1987.

COPYRIGHT MATERIAL OMITTED

Nicholas F. Reyes, Fresno, Cal., for plaintiff.

Mark St. Angelo, Asst. U.S. Atty., Fresno, Cal., John H. Arbuckle, Regional Labor Counsel, Office of Labor Law, San Bruno, Cal., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

CROCKER, District Judge.

The above matter was tried before Senior U.S. District Judge M.D. Crocker on January 27 and 28, 1987. At the conclusion of the trial, Judge Crocker issued a bench decision dismissing plaintiff's complaint, and setting forth his grounds for the dismissal.

Pursuant to the Court's request at the end of the trial, defendants submit the following findings of fact and conclusions of law:

Findings of Fact:

1. Plaintiff was discharged by defendant U.S. Postal Service, herein called the Postal Service, on July 5, 1983. Plaintiff had been employed as a city letter carrier at the Town Center Station of the Visalia, California Post Office from 1970 until the date of his discharge.

2. Plaintiff was issued a notice of proposed removal, dated June 1, 1983, by his immediate supervisor, Marjorie J. Krend. The notice set forth two charges, falsification of a medical certification, and unsatisfactory attendance.

3. The first charge in the notice alleged that plaintiff was on restricted sick leave, and accordingly, was required to submit a medical certificate from a physician to justify claims for sick leave. It alleged further that on May 24, 1983 plaintiff submitted such a statement from Dr. Sam Katano to cover sick leave for Monday, May 23, stating that plaintiff could return to duty on May 24. As the 4, in 24 appeared to be altered, the charge asserted that an investigation was undertaken with Dr. Katano, who stated that he had written May 22, and not May 24, as the return to duty date. Thus, the notice charged plaintiff with submitting a falsified medical statement, and absence without leave (AWOL) for May 23, 1983.

4. The charge of unsatisfactory attendance alleged that plaintiff had used sick leave on 12 separate occasions, for a total of 235 hours, in 1982; and on 4 occasions, for a total of 56.33 hours in 1983. It noted that 14 of those 16 absences occurred in conjunction with days off or holidays.

5. The notice of charges described nine aggravating factors that were considered in proposing the discharge action, including several which placed plaintiff on notice that his use of sick leave was excessive and could lead to discipline.

6. Plaintiff responded to the notice of charges by claiming that it was Dr. Katano who had changed the date on the medical certificate submitted on May 24, 1983. Based on further investigation with Dr. Katano, the Visalia Post Office did not credit plaintiff's claim.

7. In a letter of decision dated June 17, 1983 issued by Visalia Postmaster J. Frank Pineda, it was concluded that the charges set forth in the June 1 notice of charges were fully supported by the evidence and warranted plaintiff's removal, effective July 5, 1983.

8. Plaintiff appealed his discharge to the Merit Systems Protection Board (MSPB), San Francisco Regional Office. A hearing was held in Fresno, California on October 18, 1983 before MSPB Presiding Official Lu Nell Anderson, who issued her decision on January 31, 1984, sustaining the discharge.

9. The MSPB decision indicated that at the hearing the plaintiff testified that Dr. Katano originally wrote May 23 as the return to duty date, and that upon plaintiff's request, Dr. Katano had changed the date to May 24. Although Dr. Katano was not subpoenaed by the plaintiff or Postal Service to testify before the MSPB, the Postal Service submitted a sworn statement from Dr. Katano stating that he did not alter the medical certificate. The Presiding Official concluded that the medical certificate had been altered, but not by Dr. Katano. She noted that Dr. Katano did not make his fours as appeared on the altered certificate but that the plaintiff did make his fours in that manner. Further, she concluded that the altered four was in a different colored ink than the other writing. Also, she noted that plaintiff offered no evidence or reasons why Dr. Katano would be untruthful. Thus, she attributed the falsification to plaintiff and sustained the first charge against him.

10. As to the second charge, the Presiding Official's decision concluded that plaintiff had had only one day of unsatisfactory attendance, that being May 23, 1983, the day of AWOL resulting from the falsified medical certificate. She concluded that because all other sick leave used by plaintiff in 1982 and 1983 had been approved by the Visalia Post Office, such approved sick leave could not be used to support a removal action. She cited Webb v. U.S. Postal Service, 9 MSPB 749, 10 M.S.P.R. 536 (1982), as the authority for that conclusion. Nevertheless, the decision upheld the charge of unsatisfactory attendance based on the one day of AWOL.

11. The MSPB decision of the Presiding Official held that there was a clear "nexus" between the proven misconduct an the efficiency of the Service. It stated that such a falsification was indicative of an employees reliability, veracity, trustworthiness and ethical conduct. Further, it held that an agency has a right to have employees in attendance absent a valid excuse. Thus, it concluded that plaintiff's falsification and deficient attendance were serious offenses and his removal did not exceed the limits of reasonableness.

12. The MSPB decision noted that in plaintiff's appeal he had alleged that his discharge was discriminatory in violation of Title VII of the Civil Rights Act. It noted further that he submitted no evidence at the MSPB hearing to support those contentions.

13. In conclusion, the MSPB decision held that the charges against plaintiff were sustained by a preponderance of the evidence, and a nexus existed between the plaintiffs conduct and the efficiency of the Service. Therefore, the removal action was affirmed.

14. Plaintiff appealed the Presiding Official's decision by filing a petition for review with the MSPB, Washington, D.C., which issued an Order dated July 10, 1984, denying said petition on the grounds that it did not meet the criteria for review set forth at 5 C.F.R. Section 1201.115.

15. Plaintiff filed his complaint in this matter with this Court on August 14, 1984, and an amended complaint on May 28, 1985. The amended complaint sought judicial review of the MSPB decisions concerning the merits of his discharge, and a trial de novo concerning the allegations in the complaint that plaintiff was discharged because of a physical handicap in violation of the Rehabilitation Act of 1973, as amended 29 U.S.C. § 701 et seq.

16. Defendants filed a motion on June 17, 1985 to dismiss the amended complaint on the grounds that plaintiff had failed to exhaust his administrative remedies as to his physical handicap allegation in the amended court complaint, and on the further grounds that the MSPB decision did not indicate any such claim had been filed with it. In an Order filed on January 17, 1986, the Court dismissed the motion on the ground that the administrative record contained multiple references to plaintiffs allegation that he frequently used sick leave because of physical handicap in the form of a disabling back injury. Thus, the Court concluded that even though the Presiding Official did not specifically address the handicap issue, there was evidence before her from which inferences of discrimination could be drawn, but that she refused to draw them.

17. The trial of this case took place before this Court in January 27 and 28, 1987. Plaintiff testified in his own behalf in an effort to prove that his discharge was based on his absences caused by his back problems. The defendants witnesses were plaintiff's supervisor, Mrs. Krend, and Visalia Postmaster Pineda. Neither party chose to call Dr. Katano as a witness, even though plaintiff had obtained approval of the Court to have him testify. The MSPB Administrative Record was received in evidence at the trial.

18. Plaintiff testified that while serving in the U.S. Army during the Vietnam War in 1969, he suffered a lumbosacral strain of his back. Record evidence established that at the time of his discharge in 1969 plaintiff was awarded a $23.00 per month benefit payment by the Veterans Administration based on a service connected back strain that was found to constitute a 10% disability. Plaintiff had received monthly benefit payments from the Veterans Administration continuously from 1969 to the date of his testimony herein. Plaintiff slipped and fell on his back while on duty with the Postal Service on August 23, 1979. He returned to part-time duty on September 16, 1979 and was limited to lifting 35 pounds for several months thereafter.

19. Supervisor Krend testified that she began supervising plaintiff in November 1982. He was able to and regularly performed all of the duties of a city letter carrier which involved prolonged standing, walking, stooping, bending and lifting mail bags and parcels weighing up to 70 pounds. Plaintiff delivered mail on five different routes per week, for which he was paid at a higher rate of pay than other letter carriers. One of those routes required plaintiff to walk 6 to 8 miles per day carrying on his back a mail bag which could weigh up to 35 pounds. Plaintiff never complained to Supervisor Krend that he was physically unable to perform these duties, nor did he ever request to be placed on light duty. He did request auxiliary assistance from time to time so as to finish his delivery work within his 8 hour work day. Krend frequently informed plaintiff she thought he was too slow in completing his mail deliveries. His reply was that...