The opinion of the court was delivered by: James M. Moody United States District Court
Pending is defendant's motion for summary judgment. (Docket # 88). Plaintiff has filed a response and defendant has filed a reply. For the reasons set forth herein, defendants' motion is granted.
Plaintiff, Frederick Lee Pitchford, filed suit against the defendant, United States Postal Service (USPS), alleging that it violated Title VII of the 1964 Civil Rights Act, 42 U.S.C. §2000e-16 subjecting him to gender, race and reprisal discrimination and age discrimination under the ADEA, pursuant to 29 U.S.C. § 633a..
Plaintiff is an African-American male. His date of birth is September 6, 1949. Plaintiff was employed by the USPS at the Earle, Arkansas, Post Office since 1981 as a part-time flexible clerk. Rebecca Wooten became plaintiff's supervisor when she became Postmaster at the Earle Post Office in December, 1998. Wooten is an African-American woman over the age of 40.
The plaintiff filed numerous EEO complaints during his employment with the USPS, including complaints against every Postmaster that served as the Earle Postmaster during plaintiff's time there.
In addition to plaintiff, the Earle Post Office had one full-time clerk, Lamar Morgan, a Caucasian male. Morgan was guaranteed 40 hours of work per week and was assigned regular schedules under the collective bargaining agreement. Morgan had priority in requesting leave. Plaintiff, as a part-time flexible clerk, was only guaranteed two hours of work on the days he was scheduled to work and normally worked from 6:00 am to 8:00 am. His duties included working the window at the post office which entailed selling stamps, issuing money orders, and mailing and insuring packages.
Plaintiff always carried the maximum amount of leave (440 hours) over to the next year. Plaintiff had to use the leave or he would lose the hours at the end of the year. Wooten posted a notice at the beginning of 1999 to all employees that notified them to schedule their leave and that no one would get leave in December. Postmaster Wooten stated that she continually reminded plaintiff of this over the course of the year. Plaintiff had always taken his leave at the end of the year under other Postmasters.
Plaintiff submitted leave slips to Postmaster Wooten on September 2, 1999, requesting to take two hours of leave a day from September 8 through December 31, 1999. USPS granted plaintiff the following leave: October 25 to the 26th, eight hours; October 28 to the 29th, seven hours; November 2 to the 5th, 20 hours; November 16 to the 19th, 25 hours; November 30 through December 3, 29.17 hours; December 7 through December 10, 28.89 hours; and December 14, two hours; and December 16, two hours. This was a total of 122.06 hours of leave taken by the plaintiff for the pay period October 23rd to December 17th, 1999. Plaintiff forfeited 36.94 hours of annual leave in 1999 and 56.85 hours in 1998.
Wooten denied leave requests made by Lamar Morgan, Bill Layton, Virginia Waldo, Lynn Pluckett, and Rufus Organ. All of these employees are Caucasian and over 40 except for Pluckett, a letter carrier.
Plaintiff asserts that full-time employees do not have priority over part-time employees for leave requests made later in the year. Plaintiff denies that Wooten asked him to turn in his leave requests almost daily beginning in 2000 or that he saw notices posted to this effect. Plaintiff denies that Wooten said he would lose his leave if he didn't make his requests early or that Wooten stated she did not want employees to take leave during the busy month of December. Plaintiff states that none of this applied to him because he had always been given December off in the past. Plaintiff points out that Rufus Organ always took December off and Organ did take three weeks off in December of 1999. Organ has never filed a discrimination case, although he was not a clerk. Plaintiff says he lost more leave in 1998, but it was because Wooten had just arrived and needed his help and he agreed to work some that December.
Wooten audited the cash drawers of all employees, including the plaintiff's, every three or four months. Morgan was found short one time and made to repay the money. Plaintiff was found short $90.16 in June, 1999, repaid the money and acknowledged his mistake. Plaintiff was short $143.69 on December 28, 1999 and repaid the money. Other Postmasters had found plaintiff short in the past and forced him to repay the money.
Plaintiff alleges that the reason he was short is because Wooten asked him to step away from his drawer to retrieve a package for a customer. Instead of opening her own drawer, she worked out of his. Plaintiff found her actions suspicious right before an audit and thinks the error could have been her mistake.
Plaintiff was scheduled for a pre-hearing telephone conference in Little Rock, on a day had been scheduled to work. Plaintiff took annual leave to attend the conference in person.
USPS eventually restored the annual leave hours taken after plaintiff attended the hearing.
Plaintiff disputes that it was scheduled as a telephone conference. Plaintiff says that he should not have been scheduled that day because three weeks before the conference he asked the post office representative to tell Postmaster Wooten he could not be at work that day and plaintiff asserts he should never have lost the leave. Plaintiff said that the conference was always intended to be in person in Little Rock and was mistakenly changed to a phone conference. Plaintiff called the Judge that morning and he confirmed that it had not been changed to a phone conference.
On the morning of January 29th, 2000, plaintiff lost the keys to the Earle Post Office while shoveling snow at home. Plaintiff was scheduled to work on Monday January 31. Morgan worked for plaintiff on Monday. Postmaster Wooten did not have contact with plaintiff again until 5:15 pm on Monday January 31 when he came in to say he had found the keys. As a result, Wooten issued a letter of warning to plaintiff on February 7, 2000, charging plaintiff with being absent without leave on Monday, January 31, 2000.
Plaintiff disputes that he was absent without leave. Plaintiff states that he called Lamar Morgan on Friday afternoon to report he had not found the keys. Morgan, who was the acting POA at the time, instructed Plaintiff to call him if he found the keys; if he did not hear from plaintiff, Morgan would come in on Saturday and Monday. Wooten never asked plaintiff to call her and she never called plaintiff. Plaintiff alleges Wooten said she did not care that plaintiff was following Morgan's instruction to not come to work.
Morgan has received a disciplinary action in the past when Postmaster Wooten issued a letter of suspension for failure to follow instructions.
Plaintiff then filed an EEO Complaint 4G-720-0055-00 alleging he was discriminated against on the basis of race, sex, and retaliation. The following issues were accepted for investigation: "1) On December 27, 1999, your request for annual leave was denied by the postmaster causing you to forfeit 37 hours of annual leave for the year; 2) on the very next day, your stock was audited and you were found to be short; 3) On February 7, 2000, you were forced to use annual leave to attend a pre-hearing conference; 4) you were issued a Letter of Warning on January 31, 2000, charging you with AWOL; and 5) On February 23, 2000, the postmaster harassed you and threatened to send you to remedial training." A Final Agency Decision finding no discrimination was issued on August 27, 2003.
On April 11, 2001, plaintiff asked for 17 hours of annual leave from April 14 through April 20. Wooten denied the request based on "needs of the service". Wooten explained that Morgan was on Family Medical Leave Act ("FMLA") leave. Wooten did not contact Morgan because of his FMLA leave. Wooten offered to let Plaintiff off the week after Morgan returned. Plaintiff turned down the offer and called in sick on the 14th and the rest of that week. Plaintiff filed EEO Complaint 4G-720-0185-01 on July 27, 2001, alleging race, sex, and reprisal discrimination in regards to the April leave denial. The complaint was accepted for investigation.
Plaintiff alleges that he had an elbow injury and could not work. Plaintiff spoke with Morgan and Morgan said he was willing to come back two days early on the 14th. Plaintiff told Wooten this and Wooten claimed she was unable to contact Morgan; plaintiff doesn't believe this since Wooten knew where Morgan lived, had his number or could have left a message on his answering machine.
Plaintiff was released from the doctor's care of his elbow injury on May 12, 2001. While the plaintiff was out due to his injury, a new requirement went into effect requiring that employees returning after 21 days or more of absence due to illness or injury must submit documentation of his ability to return to work without limitations. Plaintiff took the release to Wooten which stated he had no weight restrictions, except to wear a brace. Wooten said it was insufficient. Plaintiff left another release note on Wooten's desk on May 25 or 26th but did not contact the Postmaster or the Post Office. Wooten was unable to contact plaintiff and finally wrote a letter to Plaintiff on June 14, 2001 asking him to provide a medical release with restrictions listed. Plaintiff did not receive this because his mail was on hold. There was a meeting between the parties with the representative of the union on June 29, 20001. Plaintiff finally received a notice ordering him to return to work with a doctor's release dated July 5, 2001.
Wooten required the same medical documentation from Jeffrey Frisbie, a Caucasian male, when he was off for over 21 days following by-pass surgery. Lynn Pluckett, was injured, but was not required to provide the release because she was out fewer than 21 days.
Plaintiff received his Notice of Right to File Individual Complaint in EEO Complaint 4G-720-0252 by certified mail on November 1, 2001, as evidenced by the green card receipt. Plaintiff sent an EEO Complaint dated November 18, 2001 that is date stamped as received on November 24, 2001. Plaintiff's complaint should have been received by November 16th to be timely.
Plaintiff alleged race, sex, and retaliation in 4G-720-0252 as a result of Wooten's requirement that he provide medical documentation to return to work. The issue accepted for investigation was the July 5, 2001 letter he received from Wooten requiring plaintiff to return to work on July 6, 2001 and provide medical documentation. The Final Agency Decision reported no discrimination.
On the day of plaintiff's MSPB hearing, Wooten did not schedule him for his usual 6:00 am to 8:00 am shift because she knew he had the hearing at 11:30am in Memphis that day. Wooten did schedule Morgan to work even though he had to testify that day at plaintiff's hearing. Plaintiff points out that it is only 30 minutes from Earle to Memphis. Plaintiff filed an EEO complaint, 4G-720-0074-02, alleging race, sex, retaliation and age regarding Wooten not scheduling him to work on the day of the MSPB hearing. Complaints 4G-720-0074-02 and the preceding one, 4G-720-0252-01 were consolidated.
Related to the April through July, 2001 circumstances, the plaintiff previously filed an employment discrimination case against USPS, (3:02cv340 JMM). In this case, plaintiff alleged he was discriminated against on the basis of race, sex and retaliation when Postmaster Wooten refused to allow him to return to work after being released from medical leave by a doctor from May 12, 2001 through July 6, 2001. That case was based on a MSPB decision. The MSPB ruled that plaintiff was wrongfully suspended only from May 12 to May 30. The MSPB found that the plaintiff did not provide a reasonable means of communicating with USPS after that date. When plaintiff failed to appear for depositions twice as ordered by the United States District Court, USPS's Motion to Dismiss was granted with prejudice and the District Court's dismissal was affirmed by the Eight Circuit Court of Appeals.
After the 9/11 attacks, the USPS was concerned with anthrax contamination. Plaintiff refused to step inside the Earle Post Office because he believed he had not been provided a proper mask. Plaintiff's failure to work was part of the charges that led to his termination. These issues were litigated in a federal lawsuit, Pitchford v. USPS, 3:03CV00082 SWW and partially led to the plaintiff's termination. USPS's Motion to Dismiss was granted, and the District Court's Order was again affirmed by the Eighth Circuit Court of Appeals.
Standard for Summary Judgment
Summary judgment is appropriate only when there is no genuine issue of material fact, so that the dispute may be decided solely on legal grounds. Holloway v. Lockhart, 813 F.2d 874 (8th Cir. 1987); Fed. R. Civ. P. 56. The Supreme Court has established guidelines to assist trial courts in determining whether this standard has been met:
The inquiry is the threshold inquiry of determining whether there is a need for trial -- whether, in other words, there are genuine factual issues that properly can be resolved only by a finder of fact because ...