Slate v. Potter, No. 1:04CV782.

• Decision Date: 26 September 2006
• Docket Number: No. 1:04CV782.,No. 1:05CV221.
• Citation: 459 F.Supp.2d 423
• Court: U.S. District Court — Middle District of North Carolina
• Parties: James E. SLATE, Plaintiff, v. John E. POTTER, Postmaster General, Defendant.

459 F.Supp.2d 423

James E. SLATE, Plaintiff, v. John E. POTTER, Postmaster General, Defendant.

No. 1:04CV782.

No. 1:05CV221.

United States District Court, M.D. North Carolina.

September 26, 2006.

COPYRIGHT MATERIAL OMITTED

James E. Slate, Mt. Airy, NC, Pro se.

David E. Mapp, U.S.P.C. Law Department Philadelphia Field Office, Philadelphia, PA, Lynne P. Klauer, Office of U.S. Attorney, Greensboro, NC, for Defendant.

ORDER

BEATY, District Judge.

On July 25, 2006, the Recommendation of the United States Magistrate Judge in Case Number 1:04CV782 was filed with the Court and was served on the parties in accordance with 28 U.S.C. § 636(b). Plaintiff filed timely objections to the Recommendation. However, in his Objections, Plaintiff objects only that the Recommendation does not address Plaintiffs pending claim in his related case, Case Number 1:05CV221. The Court has conducted a de novo review which is in accord with the Magistrate Judge's Recommendation, and the Court concludes that Plaintiffs purported objection does not change the substance of the Magistrate Judge's Recommendation. The Recommendation is therefore affirmed and adopted.

To the extent Plaintiff may have some confusion regarding the disposition of his claims, the Court notes that the following two claims remain: (1) Plaintiffs claim in 1:04CV782 for disability discrimination and retaliation in connection with his August 4, 2000 removal; and (2) Plaintiffs claim in 1:05CV221 for discrimination and retaliation in connection with Defendant's failure to return him to the agency rolls while his administrative appeals were pending. These claims have been consolidated, and discovery as to both claims will proceed pursuant to the standard discovery track under Local Rule 26.1, as outlined in the Magistrate Judge's Recommendation.

IT IS THEREFORE ORDERED that Defendant's Motions to Dismiss [Document # 39 in 1:04CV782] is GRANTED as to all claims in Case Number 1:04CV782 except Plaintiffs claim for disability discrimination and retaliation in connection with his August 4, 2000 removal. IT IS FURTHER ORDERED that Plaintiffs Motion for Summary Judgment [Document # 38 in 1:04CV782] is DENIED. FINALLY, IT IS ORDERED that discovery shall proceed pursuant to the standard discovery track with respect to the claims remaining in 1:04CV782 and 1:05CV221, as outlined above.

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

SHARP, United States Magistrate Judge.

This matter comes before the Court on Plaintiffs motion for summary judgment (Pleading No. 38) and Defendant's motion to dismiss or in the alternative for summary judgment (Pleading No. 39). The cross-motions are ready for a ruling.

Factual and Procedural Background

Plaintiff James E. Slate ("Plaintiff') was employed by the United States Postal Service ("the agency") for thirteen years. At the time of the events underlying this litigation, Plaintiff was a letter carrier in High Point, North Carolina. Plaintiff alleges that Defendant John E. Potter ("Defendant") discriminated against him based on his disability and in retaliation for complaints and grievances he filed.

Throughout his employment, Plaintiff suffered from bronchitis, bronchiectasis, anxiety, facial numbness, and other ailments for which he took prescription medication. As a result of his condition, he experienced frequent bouts of coughing, facial numbness, had panic attacks, and required frequent bathroom breaks. Plaintiff alleges, and has testified in past proceedings, that Defendant accommodated his condition in numerous ways so that Plaintiff was able to perform his job as a letter carrier. Nevertheless, sometime in 1999, Plaintiff requested training as a 204-B supervisor and vehicle maintenance assistant because he believed that these positions would better accommodate his health issues. Plaintiff alleges that Defendant denied his request and discriminated against him by instead giving the opportunity to a younger, less qualified, non-disabled individual.

Plaintiff was subject to increasingly serious disciplinary actions between December 1999 and June 2000. On December 16, 1999, the agency issued a Letter of Warning for Plaintiffs failure to follow directions and unauthorized expansion of office and street time. (Pleading No. 40, Def.'s Mem. in Supp. of Mot. to Dismiss, Ex. 1.) On January 19, 2000, the agency issued a 7-day suspension for Plaintiff's failure to follow instructions. Id., Ex. 2. On March 9, 2000, the agency issued a 14-day suspension for Plaintiffs failure to follow instructions. Id., Ex. 3. By memorandum dated June 29, 2000, Defendant proposed that Plaintiff be removed from his position as a carrier based on improper conduct and failure to follow instructions, setting forth six underlying specifications. Id. EL 6. Plaintiff was removed from his position effective August 4, 2000. Id.

On March 14, 2000, Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), designated as Agency No.4D270-0066-00, alleging age and disability discrimination and retaliation in connection with Plaintiff not being permitted to take medication, not being selected for training, receiving a letter of warning, and being suspended for 7 days. Id., Ex. 4. On June 20, 2000, Plaintiff filed another formal complaint, designated as Agency No. 4D-2704076-00, alleging age and disability discrimination and retaliation in connection with his not being permitted to take medication and his 14-day suspension. Id. Ex. 5. These two complaints were consolidated for processing. Id., Ex. 7.

Approximately one year later, on May 24, 2001, Plaintiff filed another formal complaint, designated as Agency No. 4D-270-0041-01, alleging discrimination in the letter of warning, 7-day suspension and 14-day suspension. Id., Ex. 26. On July 11, 2001, the complaint was dismissed as untimely. Id., Ex. 27. The dismissal informed Plaintiff of his right to file an appeal with the Office of Federal Operations ("OFO") within 30 days and his right to file a civil action within 90 days. Plaintiff did not file an appeal following this decision.

On July 25, 2001, Plaintiff filed another informal complaint, designated as Agency No. 4D-270-0108-01, alleging disability discrimination and retaliation in connection with issuance of the letter of warning, 7-day suspension, and 14-day suspension. He also added a claim related to the June 29, 2000 Notice of Removal. Id., Ex. 11. On September 5, 2001, the EEO dismissed this complaint as untimely. Id., Ex. 12. Plaintiff filed an appeal with the OFO. On March 13, 2003, the OFO affirmed EEOC's dismissal of the claim related to the Notice of Removal. Id., Ex. 13.

The EEOC conducted a hearing on Plaintiffs timely filed claims on July 24-25, 2002. On January 8, 2003, the EEOC issued a Decision finding that Plaintiff was not disabled and had not proved age-based discrimination or retaliation. Id., Ex. 8. The Decision advised Plaintiff of his right to file an appeal with the Office of Federal Operations within 30 days of receipt of the Final Agency Decision. The Final Agency Decision was issued on January 23, 2003. On April 14, 2003, Plaintiff appealed the Commission's decision to the OFO. On July 15, 2003, the OFO dismissed the appeal as untimely. Id. Ex. 9. Plaintiff filed a request for reconsideration, which was denied by the OFO on September 4, 2003. The denial advised Plaintiff of his right to file a civil action within 90 days of his receipt of the decision. Id., Ex. 10. Plaintiff filed this civil action on August 26, 2004.

In addition to filing the various EEO complaints, Plaintiff pursued a grievancearbitration procedure pursuant to the collective bargaining agreement.¹ An arbitration hearing was held on June 1, 2001 and the arbitrator upheld the removal on June 25, 2001. Id., Ex. 19.

In addition to seeking relief through the EEO complaints and the grievance-arbitration process, Plaintiff sought relief through the Merit Systems Protection Board ("MSPB"). On August 4, 2000, Plaintiff filed an appeal with the MSPB alleging discrimination based on age and disability and retaliation in connection with his August 4, 2000 removal. Id., Ex. 14. On October 6, 2000, the MSPB dismissed the appeal without prejudice, pursuant to the joint motion of the parties, who were in arbitration. Id., Ex. 15. Plaintiff was granted leave to refile the appeal no sooner than 36 days and no later than 45 days after the date of the decision (by November 20, 2000). Plaintiff reified his appeal on November 21, 2000. Id., Exs. 16 and 17. On January 18, 2001, the MSPB dismissed Plaintiffs appeal as untimely. Id., Ex. 18. However, on July 25, 2002, the MSPB reversed itself and granted the petition for review, excusing Plaintiffs failure to re-file the appeal by November 20, 2000 based on Plaintiffs showing of good cause for the one-day delay. Id., Ex. 22.

The MSPB heard the appeal on February 12, 2003. At the conclusion of the hearing, Plaintiff withdrew the claim of age discrimination. In an Initial Decision dated March 19, 2003, the MSPB exercised jurisdiction over the issue of whether the removal promoted the efficiency of the service, which included consideration of Plaintiffs affirmative defenses of disability discrimination and retaliation. Id., Ex. 23. The MSPB found no discrimination or retaliation in connection with Plaintiffs removal. Id. Plaintiff filed a Petition for Review with the MSPB, which was denied on May 10, 2004. On June 7, 2004, Plaintiff filed a Petition for Review with the OFO. On July 28, 2004, the OFO issued a decision concurring with the MSPB final decision finding no discrimination. Id., Ex. 24. The OFO decision advised Plaintiff that he could file a civil action within 30 days of receiving the decision. Id.

On August 26, 2004, Plaintiff filed this civil action.² Plaintiff alleges that Defendant engaged in prohibited discrimination and retaliation between approximately December 1999 and August 2000...