Lohf v. Runyon

• Decision Date: 06 March 1998
• Docket Number: No. 96-4088-RDR.,96-4088-RDR.
• Citation: 999 F.Supp. 1430
• Parties: Edward E. LOHF, Plaintiff, v. Marvin RUNYON, Postmaster General, United States Postal Service, et al., Defendants.
• Court: U.S. District Court — District of Kansas

999 F.Supp. 1430

Edward E. LOHF, Plaintiff, v. Marvin RUNYON, Postmaster General, United States Postal Service, et al., Defendants.

No. 96-4088-RDR.

United States District Court, D. Kansas.

March 6, 1998.

COPYRIGHT MATERIAL OMITTED

Ira Dennis Hawver, Ozawkie, KS, for plaintiff.

D. Brad Bailey, Office of United States Attorney, Topeka, KS, for Defendant Marvin Runyon.

Michael T. Manley, Charles R. Schwartz, Blake & Uhlig, P.A., Kansas City, KS, Susan L. Catler, O'Donnell, Schwartz & Anderson, P.C., Washington, DC, for Defendant Moe Biller.

MEMORANDUM AND ORDER

ROGERS, District Judge.

This action alleges a variety of claims arising from plaintiff's employment, suspension, and removal from employment as a postal worker with the United States Postal Service (USPS) in Topeka, Kansas. Defendants are: Marvin Runyon as Postmaster General of the USPS and Moe Biller as President of the American Postal Workers Union (APWU). Both Runyon and Biller are being sued in their official capacities. There is no substantial allegation that either Runyon or Biller personally participated in any of the actions alleged in this case or that either man should be personally liable for any judgment.

This case is now before the court upon the motion to dismiss of defendant Runyon and the USPS and the motion to dismiss or for summary judgment filed by defendant Biller and the APWU. The motion to dismiss by the USPS is supported by a list of "material facts as to which no genuine issue exists." Normally, such lists are part of summary judgment motions because motions to dismiss are confined to matters alleged within the complaint. Accordingly, the court shall treat the motion to dismiss as a motion for summary judgment. This approach does not place plaintiff at a disadvantage. Plaintiff has responded in detail to the list of facts in the motion to dismiss and has provided an extensive amount of material beyond the pleadings. Thus, we consider plaintiff on notice that the court may treat the motion to dismiss as a motion for summary judgment. Arnold v. Air Midwest, Inc., 100 F.3d 857, 859 n. 2 (10th Cir.1996).

PLAINTIFF'S CLAIMS

Plaintiff is asserting violations of: the Constitution, the Postal Reorganization Act, 39 U.S.C. § 401; the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e-16a ("Title VII"); the Rehabilitation Act, 29 U.S.C. § 701 et seq.; the Age Discrimination in Employment Act, 29 U.S.C. § 633a ("ADEA"); the Civil Rights Act of 1871, 42 U.S.C. § 1985(3); the Federal Tort Claims Act, 28 U.S.C. § 1346; the Vietnam Era Veterans Readjustment Assistance Act of 1974, 38 U.S.C. § 4211 et seq.; the Veterans Preference Act, 5 U.S.C. § 2108; and numerous federal statutes governing federal personnel administration. The gist of plaintiff's claims is that the USPS broke the law and discriminated against him when it directed that plaintiff be placed on restricted sick leave status and then later ordered that plaintiff be placed on sick leave pending completion of an inpatient program for the treatment of post-traumatic stress syndrome. Plaintiff asserts that the USPS continued its illegal and discriminatory acts by removing plaintiff from employment. Plaintiff contends that the acts taken against him were intended to discriminate or had the impact of discriminating against male veterans over the age of 40 who suffered from a physical or mental disability. Plaintiff further contends that the actions were taken without procedural protections guaranteed by federal law and the Constitution. In addition, plaintiff asserts that the APWU did not protect his interests and, instead, conspired with the USPS to deprive plaintiff of his employment rights without the protections he is guaranteed under the law. Thus, plaintiff alleges that the defendant Biller and the APWU breached its duty of fair representation.

Plaintiff also mentions intentional infliction of emotional distress, 29 U.S.C. § 412, and 42 U.S.C. §§ 1981a and 1986 in his most recent complaint, although any such claims are not the focus of discussion in the instant motions.

SUMMARY JUDGMENT STANDARDS

The general guidelines for analyzing summary judgment motions were reviewed by the Tenth Circuit in Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993):

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct 2505, 91 L.Ed.2d 202 (1986); Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991). The moving party bears the initial burden of showing that there is an absence of any issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). If the moving party meets this burden, the non-moving party then has the burden to come forward with specific facts showing that there is a genuine issue for trial as to elements essential to the non-moving party's case. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). To sustain this burden, the non-moving party cannot rest on the mere allegations in the pleadings. Fed. R.Civ.P. 56(e); Celotex, 477 U.S. at 324; Applied Genetics Int'l v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990).

RUNYON'S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

The following facts appear uncontroverted for purposes of the motion of defendant Runyon. In August 1993, plaintiff worked as a laborer/custodian for the USPS. On August 12, 1993, the USPS sent a letter to plaintiff informing him that he was being placed on restricted sick leave status. This action required that plaintiff provide medical documentation when he applied for sick leave. The letter indicated that if plaintiff's work attendance improved, he would be removed from restricted sick leave.

On or about the same day, plaintiff delivered to the USPS a note from Dr. Frances Garner, a clinical psychologist for the Veterans Administration. The letter indicated that Dr. Garner had seen plaintiff in connection with the post-traumatic stress clinic team. It further stated:

I was called to see Mr. Lohf Wednesday, August 11, who at the time appeared to be in crisis. There is a definite possibility that the patient is in danger of hurting himself or someone else. He is aware of this danger and has agreed to work with me to protect against the danger.

I have advised that he take off work if he feels violence is imminent and remain off work until I can see him to evaluate whether or not hospitalization is necessary.

After receiving this letter, on August 23, 1993 the USPS placed plaintiff on administrative leave and ordered plaintiff to attend a fitness-for-duty (FFD) examination. Dr. Robert Schulman performed the FFD examination. He recommended that plaintiff not return to work and that he participate in "an inpatient program for veterans who have sustained post-traumatic stress syndrome." The report further indicated that plaintiff was "willing to participate in the program again and following that should be able to return to his normal vocational duties."

Plaintiff was placed on sick leave status, as medically unable to work on August 27, 1993.

On September 8, 1993, plaintiff contacted an EEO counselor for the USPS and complained of discrimination based on a physical or mental handicap. This complaint was based on plaintiff's being placed on restricted sick leave. Plaintiff attributed this action to Dan Taylor and asked that he be removed as plaintiff's supervisor. The EEO counselor spoke to management representatives who stated that: Mr. Taylor would not be removed as supervisor; restricted sick leave was appropriate action; and administrative leave would not be authorized. Consequently, plaintiff was offered the options of withdrawing his initial complaint or filing a formal complaint.

On September 22, 1993, as a result of the FFD exam, the USPS informed plaintiff that he would not be allowed to return to duty until he completed a 90-day inpatient program for post-traumatic stress disorder. He was further informed that he was being carried on sick leave and that failure to comply with the program and update his manager as to his progress "may result in disciplinary action up to and including dismissal."

On December 7, 1993, plaintiff filed a formal complaint of discrimination with the EEO, alleging age and handicap discrimination. Plaintiff asked that he be reinstated to a position under a different supervisor and that he be placed on administrative leave from September 22, 1993 with his sick leave restored from that date. The complaint was accompanied by a lengthy set of attached materials. These materials set out a history of how plaintiff's stress condition had been aggravated by the alleged actions of USPS employees in restructuring his custodial duties. For example, plaintiff strongly objected to being permanently assigned to the work room floor. Plaintiff alleged that these actions were discriminatory and contrary to personnel procedures. The bulk of the materials contained documents relating to the complaints of other male postal employees with stress conditions.

On January 18, 1994, the EEO wrote plaintiff acknowledging receipt of his complaint and stating that the scope of the investigation would be limited to his placement on restricted sick leave on August 12, 1993, which plaintiff alleged was discrimination on the basis of physical disability. Plaintiff was further told: "If you do not agree with the defined issue(s), you must provide us with sufficient reasons to substantiate...