Persons v. Runyon

Decision Date06 March 1998
Docket NumberNo. 96-4089-RDR.,96-4089-RDR.
Citation998 F.Supp. 1166
PartiesCharles A. PERSONS, et al., Plaintiffs, v. Marvin RUNYON, Postmaster General, United States Postal Service, Defendant.
CourtU.S. District Court — District of Kansas

Ira Dennis Hawver, Ozawkie, KS, for Plaintiffs.

Charles R. Schwartz, Blake & Uhlig, P.A., Kansas City, KS, for Defendant Moe Biller.

D. Brad Bailey, Office of U.S. Atty., Topeka, KS, for Defendant U.S. Postmaster General.


ROGERS, District Judge.

This case is now before the court upon defendant's motion to dismiss or for summary judgment.

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).

The following facts appear to be uncontroverted. Plaintiff, Charles A. Persons, is bringing this action against Marvin Runyon in his official capacity as Postmaster General of the United States Postal Service (USPS). Because defendant Runyon is being sued in his official capacity, as a practical matter we consider this lawsuit as being brought against the USPS. Five other plaintiffs (Billy D. Link, Richard K. Milne, Damion W. Benedict, Ralph Dunlap and Theodore Delci) are named in the second amended complaint. Persons is attempting to litigate this case as the lead plaintiff of a class action.

Persons worked as a mechanic at the Topeka Post Office. On August 30, 1993, the USPS received a letter from Dr. Suzanne Grimm. The letter stated that Persons had been an inpatient at the Veterans Administration Hospital since August 9, 1993 under the doctor's care for post traumatic stress syndrome secondary to his experiences in Vietnam. The letter further stated: that Persons felt he was being discriminated against at the Post Office because of his status as a veteran; that he reported intense anger regarding this situation; and that he had had "homicidal ideation" regarding two of his supervisors at the Post Office. The doctor also stated that she felt Persons' condition was aggravated by his work atmosphere and that Persons was undergoing a thorough evaluation and extensive therapy.

On the same day, with reference to Dr. Grimm's letter, the USPS requested a "Fitness For Duty" (FFD) examination for Persons and placed him on administrative leave effective the next day. Persons asserts that the administrative leave status lasted for three days and that Persons was placed on enforced leave or leave without pay from September 4, 1993 until he formally retired on November 23, 1993.

Persons asserts that he was forced to apply for disability retirement because the USPS refused to discuss any accommodations for his condition or rehabilitation, and because the USPS told him that pay stopped on October 25, 1993 rather than September 4, 1993.

Persons filed an EEO complaint on August 16, 1993. He was informed in a letter dated September 1, 1993 that the issue which would be investigated was whether he should have been passed over for a "204B detail." This apparently would have been a promotion. Persons was informed by the EEOC that if he did not agree with the scope of the investigation he should respond within seven days. A final agency decision was issued on January 6, 1994. The decision dismissed Persons' complaint because he failed to submit a sworn affidavit in response to requests from the EEO Officer. Persons was informed that he could file a civil action in U.S. District Court within 90 days or he could appeal with the Office of Federal Operations of the EEOC within 30 days. Persons did not take either option.

Persons asserts that he pursued his claims of discrimination in a mixed case appeal to the Merit Systems Protection Board (MSPB). Persons filed an appeal with the MSPB on October 26, 1995, almost two years after his disability retirement. An Administrative Judge of the MSPB denied the appeal as untimely. After this action, Persons filed a motion for review by the full Board. This motion for review had not been decided when this case was filed.

At the same time as the MSPB appeal regarding Persons' disability retirement, Persons appealed a request by the USPS for the refund of an alleged overpayment to the Office of Personnel Management.

Persons did not file an administrative tort claim regarding the matters raised in his complaint.

Plaintiffs' claims

Plaintiffs allege violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16a; Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 633a; the Vietnam Era Veterans Readjustment Assistance Act of 1974, 38 U.S.C. § 4214; The Veterans Preference Act, 5 U.S.C. § 2108; Federal Tort Claims Act, 28 U.S.C. § 1346; the Civil Rights Act of 1871, 42 U.S.C. § 1985(3); the Rehabilitation Act, 29 U.S.C. § 701 et seq. and numerous federal statutes governing federal personnel administration. Plaintiffs also make reference to 42 U.S.C. §§ 1981a and 1983, but these statutes do not provide a cause of action under the facts alleged in this matter.

Persons alleges that he has filed administrative law actions including an MSPB appeal in an effort to exhaust his administrative remedies. The other named plaintiffs admit that they have not filed all the required administrative law actions. They allege that such filings are futile and a waste of time.


Plaintiffs allege a multitude of statutes and regulations in the complaint. Defendant's approach in the instant summary judgment motion is to argue that defendant is immune from suit or that plaintiffs have failed to complete the required administrative procedures prior to bringing a lawsuit against the USPS.

Employment discrimination

Defendant's first contention is that plaintiffs' claims of employment discrimination based on gender, age or handicap must be dismissed for failure to exhaust administrative remedies.

Plaintiffs do not directly dispute the case law or regulations cited by defendant which require the filing of administrative complaints or notices prior to bringing a lawsuit under Title VII, the ADEA, or the Rehabilitation Act. See Khader v. Aspin, 1 F.3d 968, 970 and 971 n. 3 (10th Cir.1993) (Title VII and Rehabilitation Act); Jones v. Runyon, 32 F.3d 1454, 1457-58 (10th Cir.1994) (notice of administrative complaint must be filed with EEOC under ADEA); 29 C.F.R. § 1614.204 (regulations requiring federal employees to file class complaints of age, sex, or handicap discrimination with federal agencies); Belhomme v. Widnall, 127 F.3d 1214, 1217 (10th Cir.1997) (dismissing Title VII class action claim for failure to exhaust class action claim with the EEOC); Gulley v. Orr, 905 F.2d 1383, 1384-85 (10th Cir.1990) (dismissing class action claims for failure to exhaust class administrative remedies).

However, plaintiffs do make numerous responses to the exhaustion issue in the two briefs filed in rejoinder to defendant's motion. The court finds these responses unpersuasive and often inapposite.

Plaintiffs argue that the USPS is distinguishable from the United States. The court is not convinced by this argument. While there may be some special laws or regulations governing the USPS, in general the laws governing suits against federal agencies for employment discrimination apply to suits against the USPS because, as plaintiff acknowledges, by law the USPS is an "independent establishment ... of the government of the United States." 39 U.S.C. § 201. Plaintiffs' citation to Baker v. Runyon, 922 F.Supp. 1296 (N.D.Ill.1996) does not carry their argument for two reasons. First, the case only concerns whether there is liability for punitive damages under Title VII; it does not deny the need for administrative exhaustion. Second, the district court was reversed even as to its holding on punitive damages by the Seventh Circuit which emphasized that the USPS is a "government agency" entitled to the same immunity from punitive damages under Title VII as other government agencies. Baker v. Runyon, 114 F.3d 668, 670-71 (7th Cir.1997); see also, Cleveland v. Runyon, 972 F.Supp. 1326 (D.Nev.1997) (USPS is a government agency for purposes of Title VII).

Plaintiffs make arguments regarding constitutional claims which are not relevant to defendant's contentions regarding the employment discrimination statutes. Plaintiffs follow this discussion in their first responsive brief with an attack upon the referral for a fitness-for-duty examination. Again, this is not relevant to the requirement for administrative exhaustion preceding an employment discrimination action.

Plaintiffs extend their...

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  • James v. U.S. Coast Guard, Case No. 5:18-CV-04063-HLT
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    • May 23, 2019
    ...certain civil rights violations, it does not waive sovereign immunity and allow suits against the United States. Persons v. Runyon, 998 F. Supp. 1166, 1173 (D. Kan. 1998). With regard to the 5th Amendment, although a cause of action against individual federal agents may be permitted in some......

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