Luttrell v. Runyon, 96-4087-RDR.

• Citation: 3 F.Supp.2d 1181
• Decision Date: 06 March 1998
• Docket Number: No. 96-4087-RDR.,96-4087-RDR.
• Parties: Neil E. LUTTRELL, Plaintiff, v. Marvin RUNYON, Postmaster General, United States Postal Service, et al., Defendants.
• Court: U.S. District Court — District of Kansas

Page 1181

3 F.Supp.2d 1181

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

No. 96-4087-RDR.

United States District Court, D. Kansas.

March 6, 1998.

COPYRIGHT MATERIAL OMITTED

Ira Dennis Hawver, Ozawkie, KS, for Neil E Luttrell.

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

Charles R. Schwartz, Blake & Uhlig, P.A., Kansas City, KS, Leah Guggenheimer, Cohen, Weiss & Simon, New York City, for Vincent R. Sombrotto and National Ass'n of Letter Carriers of U.S.

MEMORANDUM AND ORDER

ROGERS, District Judge.

This case arises from various actions taken in connection with plaintiffs employment by the United States Postal Service (USPS) and the response to those actions by plaintiffs union representatives. Plaintiff is suing Marvin Runyon, the Postmaster General, in his official capacity as a representative of the USPS. Plaintiff is also suing: Vincent Sombrotto, in his official capacity as President of the National Association of Letter Carriers (NALC), and Local Branch 10 of the NALC.

This case is now before the court upon motions for summary judgment or to dismiss brought by defendants. Plaintiff has also filed a motion to modify an arbitration award.

PLAINTIFF'S CLAIMS

Plaintiff alleges that he was unfairly treated in his employment because of the fear of USPS officials that disabled veterans were responsible for killing sprees at USPS facilities. More specifically, he alleges that defendants violated his rights under: the Constitution; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(a); 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 Vietnam Era Veterans Readjustment Assistance Act of 1974, 38 U.S.C. § 4211 et seq.; the Veterans Preference Act, 5 U.S.C. § 2108; the Federal Tort Claims Act, 28 U.S.C. § 1346; and numerous federal statutes governing federal personnel administration. Plaintiff contends that he was given an improper "job discussion" by the Topeka Postmaster and the NALC Branch 10 President. He asserts that thereafter he was: ordered to take a fitness-for-duty (FFD) examination; suspended from work; and eventually removed from employment. Plaintiff further contends that the union defendants in this case breached their duty of fair representation by failing to protect or defend plaintiff from unfair accusations and unreasonably delaying the arbitration of plaintiff's grievance.

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, 106 S.Ct. 2548; Applied Genetics Int'l v. First Affiliated Securities, Inc., 912 F.2d 1238, 1241 (10th Cir.1990).

DEFENDANT RUNYON'S MOTION FOR SUMMARY JUDGMENT

The following facts appear to be uncontroverted. In 1993 plaintiff was a letter carrier at the Hicrest Station of the USPS in Topeka, Kansas. On July 23, 1993, plaintiff was placed on leave and ordered to report for a fitness-for-duty (FFD) examination by USPS management. Plaintiff asserts he was not paid while on leave. Plaintiff was examined by Dr. Robert Schulman on the same day. Plaintiff initially refused to sign a release which would permit the USPS contract doctor to review Dr. Schulman's report.

On August 5 or 6, 1993, a Notice of Proposed Removal was written and issued by USPS management to plaintiff. The results of Dr. Schulman's FFD examination were not made available to USPS management until August 12, 1993. Dr. Schulman was unable to make a recommendation about plaintiff's ability to work and suggested a comprehensive inpatient evaluation be conducted before making such a recommendation.

On August 27, 1993, the USPS and plaintiff's union, Local Branch 10 of the NALC, agreed that the Notice of Proposed Removal would be held in abeyance to allow plaintiff an opportunity to process a disability retirement application. While disability retirement may have been under consideration for a period of time, ultimately plaintiff decided against it. By a letter dated November 16, 1993, plaintiff was told that the Notice of Proposed Removal would no longer be held in abeyance and was effective November 13, 1993. Grievances were filed on behalf of plaintiff by union representatives on November 19, 1993 (Step 1) and November 30, 1993 (Step 2). These grievances were appealed through Step 3 and were certified for arbitration on May 5, 1994.

By letter dated December 10, 1993, plaintiff was removed from employment effective December 18, 1993. Plaintiff alleges that he remained on leave without pay status from July 23, 1993 until the date of his removal, December 18, 1993.

On August 26, 1993, plaintiff contacted an EEO counselor claiming that he had been discriminated against on the basis of age and disability when he was ordered to report for the FFD examination on July 23, 1993. The complaint also made general references to a plan to drop veterans from the USPS work-force and to force plaintiff to take retirement. This informal complaint was not resolved. Plaintiff filed a formal administrative complaint dated December 7, 1993. The complaint alleged age and disability discrimination as well as retaliation and made reference to "forced retirements" and "acts against me as well [as] 5 other Vietnam Veterans." The complaint requested reinstatement.

On March 23, 1994, the EEO acknowledged receiving the December 7, 1993 complaint and stated that the scope of the investigation would include only being forced to take an FFD examination and the USPS gaining access to confidential records. The EEO also stated that it would investigate only discrimination based on age and mental disability. Plaintiff was advised that if he did not agree with the defined issues he would have to present objections in writing within seven days of the receipt of the EEO letter.

On April 2, 1994, within the seven-day period, plaintiff filed a one-page affidavit with a 156-page attachment which included copies of newspaper articles, statutes, regulations and other materials. The affidavit and the attachment did not expressly or directly object to the limited scope of the EEO investigation.

The NALC and the USPS agreed to hold the arbitration of plaintiffs grievance in abeyance during the pendency of plaintiffs EEO complaint.

Over a year later, on May 7, 1995, an EEO hearing was conducted, but no administrative decision was issued prior to plaintiff filing the instant case on May 17, 1996. Two weeks prior to the EEO hearing, on April 21, 1995, plaintiff submitted a statement of the case which made three allegations: 1) that plaintiff was discriminated against on the basis of age and mental disability when he was forced to take an FFD examination; 2) that he was discriminated against on the same basis when the USPS gained access to confidential records; and finally 3) that he was removed from the USPS based on retaliation.

Plaintiff filed an appeal before the Merit Systems Protection Board (MSPB) regarding his removal and "constructive suspension" on February 5, 1996. The appeal was dismissed as untimely filed.

This case was filed on May 17, 1996. On June 26, 1996, the USPS issued a Final Agency Decision which dismissed plaintiffs EEO complaint because it was the basis of a pending civil action, i.e., this lawsuit.

Some months later, upon learning that the EEO action had been dismissed, the NALC reactivated the arbitration proceeding. It was determined on December 27, 1996, over the objection of the USPS, that the arbitration proceeding could proceed to the merits. After the case was heard upon the merits, the arbitrator found in favor of plaintiff on his claim for reinstatement, but denied plaintiff's claim for backpay. Plaintiff has filed a motion in this case to modify the arbitration award. This motion is opposed by USPS on jurisdictional grounds.

Plaintiff has not filed an administrative tort claim with the USPS.

Constitutional Claims

Plaintiff alleges that the actions taken against him were procedurally unfair and violated his constitutional rights. USPS contends that it is immune from plaintiffs constitutional tort claims. The court agrees with the claim of immunity.

The USPS is "[a]n independent establishment of the Executive Branch of the government of the United States ..." 39 U.S.C. § 201. As such the ability to sue or be sued is controlled by the federal government. See Loeffler v. Frank, 486 U.S. 549, 108 S.Ct. 1965, 100 L.Ed.2d 549 (1988) (sovereign immunity of USPS...