Kwatowski v. Runyon, Civil Action No. 95-30064-MAP.

• Decision Date: 05 March 1996
• Docket Number: Civil Action No. 95-30064-MAP.
• Citation: 917 F. Supp. 877
• Parties: Mark Z. KWATOWSKI, Plaintiff, v. Marvin T. RUNYON, United States Postmaster General, Defendant.
• Court: U.S. District Court — District of Massachusetts

917 F. Supp. 877

Mark Z. KWATOWSKI, Plaintiff, v. Marvin T. RUNYON, United States Postmaster General, Defendant.

Civil Action No. 95-30064-MAP.

United States District Court, D. Massachusetts.

March 5, 1996.

COPYRIGHT MATERIAL OMITTED

Edward M. Pikula, Matroni, Dimauro, Liebel, Pikula & Desousa, Springfield, MA, for Plaintiff.

Karen L. Goodwin, United States Attorney's Office, Springfield, MA, for Defendant.

PONSOR, District Judge.

This motion is hereby ALLOWED based upon the Magistrate Judge's Report and Recommendation, which this court has reviewed de novo and which it adopts. The plaintiff failed to exhaust administrative remedies and has failed to make out a prima facie case of retaliation.

So ordered.

REPORT AND RECOMMENDATION OF COURT ON DEFENDANT'S MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT (Docket No. 05)

NEIMAN, United States Magistrate Judge.

I. INTRODUCTION

Defendant Marvin T. Runyon, Postmaster General of the United States (hereinafter "the Government") has moved, pursuant to F.R.Civ.P. 12(b)(1) and 12(b)(6), to dismiss the instant employment discrimination complaint brought by Mark Z. Kwatowski ("Plaintiff"). In the alternative, the Government seeks summary judgment. Plaintiff opposes. The Government's motion has been referred to the Court for a report and recommendation pursuant to Rule 3 of the Rules for United States Magistrate Judges in the United States District Court for the District of Massachusetts. 28 U.S.C.A. § 636(b)(1)(B). For the reasons indicated below, the Court, construing the motion as one for summary judgment, recommends that the motion be allowed.

II. FACTUAL AND PROCEDURAL BACKGROUND

In March of 1988, Plaintiff — who claims that he suffers from a service-connected disability in his right hand — applied for non-casual employment as a part-time flexible mailhandler at the United States Postal Service's General Mail Facility-Bulk Mail Center in Springfield, Massachusetts. Plaintiff had worked as a casual mailhandler for 90 days at the Springfield facility in 1986. In a letter dated April 22, 1988, the Postal Service notified Plaintiff that, based on his medical evaluation, he had been found medically unsuitable for employment as a part-time flexible mailhandler. The letter advised Plaintiff that he could request reconsideration of the determination within fifteen days.

In a letter dated May 3, 1988, Plaintiff did request reconsideration of the determination and claimed that he was being discriminated against for his alleged disability. Six weeks later, Plaintiff, having heard nothing further from the Postal Service, contacted one of its Human Resource Specialists, Marilou Ferraro. At that time, Ms. Ferraro informed Plaintiff that his request for reconsideration had been denied.

In June of 1993, Plaintiff again applied for the position of part-time flexible mailhandler. This time Plaintiff was cleared for duty in a pre-employment medical examination and was hired on June 13, 1993. Plaintiff attended a training session on June 15, 1993, which included information about Equal Employment Opportunity ("EEO") policies and procedures. See Defendant's Reply (Docket No. 13), Exhibit 1 (Declaration of Philip Mannila). In addition, according to the Government, the Postal Service, since at least 1988, has posted notices throughout the Springfield facility setting forth the procedures and time limits for contacting an EEO counselor with a claim of discrimination. According to an affidavit submitted by Eleanor C. McNerney, the EEO Counselor/Investigator for the Springfield facility, the notices are posted in the lobby, on the workroom floor and in the personnel office and an applicant for employment would have had to pass through the lobby to get to the personnel office. See Defendant's Memorandum of Law (Docket No. 05), Exhibit 2 (Declaration of Eleanor C. McNerney).

Ms. McNerney's affidavit to the contrary and despite the EEO training in June of 1993, Plaintiff claims he was first made aware of the EEO process in September of 1994 by his union representative. According to Plaintiff, he had no knowledge of EEO counseling signs posted anywhere in his place of employment until he read the Government's motion, whereupon he sought out the location of such signs. Plaintiff claims that his inspection of the Springfield facility revealed one sign located outside the superintendent's office — an allegedly inconspicuous area that Plaintiff claims was inaccessible to him before he was hired — and no such signs posted in the lobby. Plaintiff, however, is silent with respect to the explanation of EEO policies and procedures at the June, 1993 training.

On September 19, 1994, more than fifteen months after being hired, Plaintiff formally requested counseling pursuant to EEO guidelines. Plaintiff claimed that his employment file was "inexplicably shipped" to St. Louis and that he was never contacted for employment when he should have been. Plaintiff also indicated his understanding, as of September 29, 1994, that an individual with a more extensive hand injury than his had been found suitable for employment at the Springfield facility.

At some point, Plaintiff does not say when, Plaintiff alleges to have met with an EEO counselor, Plaintiff does not say who, to discuss potential settlement of his claims. According to Plaintiff, the counselor offered to recommend to Postal Service management that Plaintiff's seniority date be adjusted to 1988, thus increasing his hourly pay. Plaintiff claims that when he asked whether he could think about the offer and talk with a lawyer, the counselor said he would have to make a decision right then as paperwork had to be processed and that he could not have any additional time to seek counsel.

Plaintiff filed a formal EEO complaint on December 13, 1994 in which he alleged disability discrimination when he was denied a position in 1988 despite his ability to fill the requirements of the job without accommodation. In another submission, Plaintiff claimed that his failure to be hired in 1988 was "very odd" considering his condition had not changed in 1993 when he was hired. In a letter dated December 28, 1994, the Postal Service issued a final decision which dismissed Plaintiff's complaint as "untimely" because he failed to contact an EEO counselor within thirty days of being rejected for employment in 1988.

Plaintiff filed the current action on March 31, 1995 claiming that he was discriminated against based on a disability. Plaintiff's three count complaint generally alleges violations of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12111, et seq. ("ADA"), and the Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq. ("Rehab Act"). None of the counts specifically allege "retaliation." Plaintiff, however, introduces his complaint by stating that, in addition to asserting discrimination, he is also alleging "retaliation" by the Government. Finally, Plaintiff alludes to violations of the United States Constitution and "other federal laws."

The Government thereafter filed its motion to dismiss or for summary judgment. Plaintiff, after a number of extensions, filed an opposition. A hearing on the Government's motion was held on November 13, 1995.¹

III. STANDARD OF REVIEW

The Government has moved either for dismissal pursuant to Rules 12(b)(1) or 12(b)(6) or for summary judgment pursuant to Rule 56. Although the Government cites the rules governing dismissal, it has based its motion in part on materials outside the pleadings, namely, the declarations of Marilou Ferraro, Eleanor C. McNerney, and Philip Mannila. Plaintiff, as well, has relied on an affidavit that is not a part of the pleadings. Accordingly, the Court has treated the motion as one for summary judgment. See Dominique v. Weld, 73 F.3d 1156, 1158-59 (1st Cir.1996); and Smith v. Massachusetts Dept. of Correction, 936 F.2d 1390, 1394 (1st Cir.1991).

The role of summary judgment in civil litigation is to pierce the boilerplate of the pleadings and assay the parties' proof in an effort to determine whether trial is actually required. McIntosh v. Antonino, 71 F.3d 29, 33 (1st Cir.1995) (citing Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir.1992), cert. denied, 507 U.S. 1030, 113 S.Ct. 1845, 123 L.Ed.2d 470 (1993)). Summary judgment is appropriate where the record reveals no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). See Flanders & Medeiros, Inc. v. Bogosian, 65 F.3d 198, 201 (1st Cir.1995); and Mendes v. Medtronic, Inc., 18 F.3d 13, 15 (1st Cir.1994).

The Court must view the evidence as a whole, rather than in isolation. Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.1991), cert. denied, 504 U.S. 985, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992). The facts must be viewed in the light most favorable to the non-moving party, Santiago-Ramirez v. Secretary of Dept. of Defense of U.S., 62 F.3d 445, 446 (1st Cir.1995), who bears the burden of placing at least one material fact into dispute after the moving party shows the absence of any disputed material fact. Mendes, 18 F.3d at 15 (discussing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986)). The factual dispute claimed by the non-moving party, however, must be "material", that is, it must be an issue that affects the outcome of the suit. Collins v. Martella, 17 F.3d 1, 3 n. 3 (1st Cir.1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). See also Blackie v. Maine, 75 F.3d 716, 720 (1st Cir.1996). Absent a genuine dispute of material fact, questions of law are appropriate for resolution on summary judgment. Jimenez v. Peninsular & Oriental Steam Nav. Co., 974 F.2d 221, 223 (1st Cir. 1992).

V. DISCUSSION

The Government has offered three bases for judgment in its favor. It first argues that, insofar as Plaintiff's claims allege a violation of ...