Gaj v. U.S. Postal Service

• Citation: 800 F.2d 64
• Decision Date: 04 September 1986
• Docket Number: No. 86-5062,86-5062
• Parties: 123 L.R.R.M. (BNA) 2717, 41 Empl. Prac. Dec. P 36,496, 1 Indiv.Empl.Rts.Cas. 712 Victor J. GAJ v. UNITED STATES POSTAL SERVICE, United States of America, William Bolger, Postmaster General and John F. Burkey. Appeal of Victor J. GAJ.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 64

800 F.2d 64

123 L.R.R.M. (BNA) 2717, 41 Empl. Prac. Dec. P

36,496,

1 Indiv.Empl.Rts.Cas. 712

Victor J. GAJ v. UNITED STATES POSTAL SERVICE, United States of America William Bolger, Postmaster General and John F. Burkey Appeal of Victor J. GAJ.

No. 86-5062.

United States Court of Appeals, Third Circuit.

Argued Aug. 6, 1986.

Decided Sept. 4, 1986.

Joseph L. Vullo (argued) Wilkes-Barre, Pa., for appellant.

James J. West, U.S. Atty., Frederick E. Martin, Asst. U.S. Atty., Lewisburg, Pa., Stephen E. Alpern, Associate Gen. Counsel, Lori Joan Dym (argued), Washington, D.C., for appellees.

Before SEITZ, ADAMS, and STAPLETON, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

Plaintiff, Victor Gaj, brought this action in the District Court for the Middle District of Pennsylvania claiming that the defendants, the United States Postal Service, the Postmaster General of the United States, and the Postmaster of the Wilkes-Barre post office, had refused to re-hire him because of protected actions he had taken while previously employed by the Postal Service and because he is handicapped. The district court granted the defendants' motions for summary judgment. Gaj then filed a motion to amend the district court's judgment. After the district court denied the motion to amend, Gaj filed a timely appeal.

I.

Gaj was an employee of the Postal Service from June, 1973 to March, 1976; during that time he was active in union affairs as health and safety officer. He complained to the Postal Service about safety matters and working conditions, including the noise level, and the fact that a conveyor belt was permitted to operate while employees performed maintenance on it. During the period Gaj, who is a disabled veteran with sight in only one eye, also filed a lawsuit against the Postal Service alleging handicap discrimination. The lawsuit was dismissed. Eventually, Gaj quit his employment because of the safety deficiencies.

Three years after leaving his job, Gaj applied for re-employment as a mail handler or clerk carrier with the Wilkes-Barre Post Office. The Postal Service gave several inconsistent reasons for denying his application. On October 2, 1979, Gaj received a letter from the Postmaster of the Wilkes-Barre Post Office stating: "Particular attention has been given your past Postal Service record and any other interaction with this agency. Our review indicates that it would not be in the best interests of the Postal Service to process your application further." However, in a letter to Congressman Nickey Leyland dated September 17, 1981, Edward Horgan, Postmaster of the Wilkes-Barre Post Office, stated that Gaj was not hired because he was unable to pass the vision requirements for operating a right hand drive vehicle. And, Gerhard Brasche, Personnel Management Specialist, in an affidavit dated May 9, 1985, stated that Gaj's name was never reached on the mail handler list because all the positions were filled by applicants with higher ratings. The mail handler list shows, however, that Andrew Savina was hired, and he had the same rating as Gaj.

Gaj filed a new complaint on August 19, 1983 against the Postal Service, Postmaster General William Bolger and Wilkes-Barre Postmaster John Burkey. He filed an identical complaint against the United States on April 19, 1984, under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346(b). These two complaints were consolidated by the district court. Count I of each complaint alleges that the defendants violated the Postal Reorganization Act, 39 U.S.C. Sec. 1001(b), and the FTCA, by failing to apply the Postal Service's merit selection system to his application. Count II of each complaint, grounded in the FTCA and in 28 U.S.C. Sec. 1331, alleges that the defendants violated Gaj's first amendment rights by denying him employment because of his safety complaints, and his fifth amendment rights by denying him employment because of his union activities. Count III of the complaints avers that the defendants violated the Postal Reorganization Act, 39 U.S.C. Sec. 1003(b), and the FTCA, by failing to extend opportunities to the handicapped.

On October 30, 1984, the district court dismissed the Postal Service as a defendant, and also rejected the plaintiff's demands for a jury trial and punitive damages. On March 29, 1985, the district court dismissed Gaj's claims under the FTCA, because Pennsylvania does not recognize the tort of failing to hire based on a handicap, see Bruffett v. Warner Communication, 692 F.2d 910 (3d Cir.1983), and under 39 U.S.C. Sec. 1003(b), because adequate remedies exist under the Rehabilitation Act of 1973, 29 U.S.C. Sec. 701 et seq. No appeal was taken from these rulings, and these determinations thus are not at issue on this appeal.

By memorandum and order of July 11, 1985, the district court also disallowed Gaj's fifth amendment claim on the ground that an adequate remedy exists under the National Labor Relations Act for discrimination based on prior union activities, and his first amendment claims on the ground that safety complaints do not constitute "speech regarding public issues" and therefore are not protected by the first amendment. The district court also dismissed Gaj's claim of handicap discrimination because he had access to an adequate alternative remedy before the Equal Employment Opportunity Commission. Finally, the district court granted the defendants' motions for summary judgment on Count I of each of the complaints because the Postal Service has in place a merit selection system that is applicable to Gaj's request for employment.

Gaj filed a motion to amend the judgment, which the district court treated as a motion to reconsider the judgment. In a memorandum and order dated November 22, 1985, the district court declined to change its judgment. Plaintiff appeals from that order. Because the district court treated Gaj's motion as one to reconsider, rather than simply to amend, the judgment, we will review the order as such and give each claim full consideration.

II.

A. The Bivens Claims

Inasmuch as the district court allowed Gaj the opportunity to submit affidavits and briefs in opposition to the defendants' motions for dismissal, we will treat the dismissals as summary judgments. Fed.R.Civ.P. 56.

The Supreme Court held in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), that when a federal agent acting under color of his authority violates an individual's constitutional rights a cause of action for damages may arise against such agent. See also Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979). A Bivens action may be defeated, inter alia, in two situations: when Congress has provided an alternative remedy which it has explicitly declared to be a substitute for recovery directly under the Constitution, Carlson v. Green, 446 U.S. 14, 18-19, 100 S.Ct. 1468, 1471-72, 64 L.Ed.2d 15 (1980); see also Muhammad v. Carlson, 739 F.2d 122, 124 (3d Cir.1984), and when the defendants demonstrate special factors counselling hesitation, Bivens, 403 U.S. at 396, 91 S.Ct. at 2004-05.

In Connick v. Meyers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), the Supreme Court held that:

when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.

Id. at 147, 103 S.Ct. at 1690. The Court stressed that a careful factual inquiry must be made. "Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Id. at 147-48, 103 S.Ct. at 1690. Gaj's complaints concerned the noise level and conveyor belt maintenance. While in some instances such complaints might comprise criticisms of the safety policies of the Postal Service and therefore rise to the level of public concern, that is not the situation here. Rather, Gaj was merely expressing himself as an employee dissatisfied with his own conditions of employment. He stated in his affidavit: "These ... safety complaints were not made to protect the interest of other employees but were made to protect myself." The record as a whole reveals that Gaj "did not seek to inform the public that the [Postal Service] was not discharging its governmental responsibilities ... nor ... seek to bring to light actual or potential wrongdoing or breach of public trust." Connick, 461 U.S. at 148, 103 S.Ct. at 1691. Since Gaj has not established that a constitutionally protected right has been violated, we will uphold the grant of summary judgment on this issue.

Summary judgment for the defendants was also proper on Gaj's claim of discrimination on the basis of prior union activities. In Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), the Supreme Court declared that one of the "factors counselling hesitation" under Bivens is a question as to "who should decide whether such a remedy should be provided." Id. at 380, 103 S.Ct. at 2413. The plaintiff in Bush was an aerospace engineer employed by NASA who was demoted after making statements to the press highly critical of the agency. A member of the civil service, he appealed his demotion through the various statutory avenues available to him. The Court declined to award damages in his case, stating that:

[t]he question is not what remedy the court should provide for a wrong that would otherwise go unredressed. It is whether an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, should be augmented by the creation of a new judicial remedy for the constitutional violation at...