Opinion
No. 98 C 3767
March 20, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff, Patrick Thoele, has filed a second amended complaint pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 791 et.seq., alleging that defendant, William J. Henderson, Postmaster General of the United States Postal Service ("USPS"), discriminated against him because he is morbidly obese. Plaintiff alleges that defendant did so by humiliating him in front of his co-workers, verbally abusing him, ordering him to perform manual labor tasks, and terminating him solely on the basis of his weight. Plaintiff further alleges that defendant retaliated against him by terminating him in April 1998 for proceeding with his discrimination claim against defendant. Defendant has filed a motion for summary judgment. For the following reasons, that motion is granted
FACTS
Plaintiff stands 5 feet eleven inches tall, and during the period in question weighed 370 pounds. Plaintiff began working for the USFS on November 21, 1987, as a pan-time flexible clerk in a Palatine, Ill. local post office. He became a full time regular clerk in March 1993. Before USPS hired plaintiff, it ordered a pre-employment medical examination. After the examination, the doctor diagnosed plaintiff as morbidly obese but concluded tat plaintiffs obesity did not restrict him from performing any work-related tasks. Between 1988 and 1993 plaintiff was asked to perform maintenance and janitorial assignments not normally performed by clerks.
On June 19, 1989, plaintiff injured his knee while skiing. Four years later, on March 3, 1993, plaintiff injured his knee again while unloading heavy sacks of magazines at work. As a result of this injury, plaintiff had a "Fitness for Duty" medical examination. When the findings from this medical examination were released, Palatine Postmaster Donald Kriley ("Kriley") asked plaintiff to attend a meeting on April 22, 1993, at the Labor Relations Office to discuss his "Fitness for Duty" findings. Plaintiff, Kriley, and several of plaintiffs supervisors attended this meeting. Kriley expressed concern over plaintiffs ability to work without further injury to his knee and required him to enroll in a structured weight loss program, get knee surgery, submit to periodic weighing and avoid work that might overextend his knee. Kriley memorialized these requirements in a letter to plaintiff dated May 3, 1993. Plaintiff responded with a letter on May 20, 1993, in which he claimed that the requirements were "null and void" because plaintiff did not have a union representative at the April 22 meeting. Thus, on May 22, 1993, plaintiff and a union representative met with plaintiffs supervisor, Rick Skala ("Skala"), who stated that plaintiff would be disciplined if he did not follow the requirements outlined in the May 3 letter.
On June 14, 1993, plaintiff had an argument with Kriley at the Palatine, Ill. Post Office. This argument had nothing to do with plaintiffs weight. On June 17, 1993, Skala gave plaintiff a letter requesting that he report to Dr. Foley ("Foley") at the USFS Carol Stream facility where he would be weighed pursuant to the requirements of the May 3 letter. At the Carol Stream facility, Foley weighed plaintiff on a scale used to weigh forklifts, because the scale in Foley's office was insufficient. Several employees from the Carol Stream facility saw plaintiff being weighed, and one employee helped Foley with the scale. Plaintiff was humiliated and refused to attend his next mandatory weigh-in that was scheduled for July 1993.
On August 3, 1993, Kriley and Skala sent plaintiff a letter removing him from his position, because he failed to comply with the required weigh-in and was unfit for duty. Plaintiff filed a union grievance and an informal Equal Employment Opportunity ("EEO") complaint that same day. On April 16, 1994, plaintiff settled his union grievance and any potential EEO claims in a "pre-arbitration" settlement. Plaintiff was reinstated as an employee at the USPS Palatine processing plant on April 16, 1994. On September 13, 1994, plaintiff withdrew his informal EBO complaint, but then requested to re-open it when he had not received his backpay by November 14, 1994. Plaintiff finally received his full backpay of $27,710.28 on October 27, 1995. On May 26, 1995, plaintiff filed another EEO complaint claiming that he was discriminated against based on his weight, gender and race when he was terminated on August 3, 1993.
In March 1998 plaintiff "was feeling anti-social" and yelled at his supervisor, Mary McClennan ("McClennan"). Plaintiff thought McClennan was supervising him too closely and asked her "What's your f — g problem?" McClennan herself is overweight, and plaintiff does not believe she discriminated against him. Shortly after his argument with McClennan, plaintiff sought a leave of absence with workmen's compensation but was denied. Plaintiff then left work without permission from March 2, 1998, to March 21, 1998. As a result of his unexcused absence, plaintiff was issued a second notice of removal. Plaintiff again filed a union grievance, but did not file an EEO complaint. Plaintiff settled the grievance with the USPS in another pre-arbitration agreement. Plaintiff was reinstated on April 30, 1999, and given backpay for the period between April 27, 1998, and April 25, 1999.
Plaintiff alleges that he did not receive credit for all of the time when he was removed in 1993 and 1998 and, therefore, has not received the step increases in his salary he would have had he worked at USPS uninterrupted from 1987. Plaintiff also alleges that defendant retaliated against him when it terminated him in March of 1998, for filing his 1995 EEO complaint and "for his intentions to proceed with his claims in Federal Court."
SUMMARY JUDGMENT STANDARD
A movant is entitled to summary judgment when the moving papers and affidavits show there is no genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);Unterreiner v. Volkswagen of Am., Inc., 8 F.3d 1206, 1209 (7th Cir. 1993). If the moving party has met its burden, the nonmoving party must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(c); Becker v. Tenenbaum-Hill. Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990). The court, however, considers the record as a whole and draws all reasonable inferences in the light most favorable to the nonmoving party. Fisher v. Transco Services-Milwaukee, Inc., 979 F.2d 1239, 1242 (7th Cir. 1992).
A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nomnoving party."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Stewart v. McGinnis, 5 F.3d 1031, 1033 (7th Cir. 1993). This standard is applied with added rigor in employment discrimination cases, where issues of intent and credibility often dominate. Sarsha v. Sears. Roebuck Co., 3 F.3d 1035, 1038 (7th Cir. 1993). The nonmoving party, however, "must do more than simply show that there is a metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Further, the nonmoving party must provide more than "the mere existence of a scintilla of evidence" to survive summary judgment. Anderson, 477 U.S. at 252.
DISCUSSION
A plaintiff can waive his right to bring an employment discrimination claim if he does so knowingly and voluntarily. Wagner v. The NutraSweet Co. 95 F.3d 527, 531 (7th Cir. 1996). Further, the court will determine whether a plaintiff has knowingly and voluntarily waived an employment discrimination claim by looking at the totality of the circumstances.Pierce v. Atchison. Topeka Santa Fe Railway Co., 65 F.3d 562, 570 (7th Cir. 1995). A postal service employee who settles, with the help of a union representative, a union grievance brought contemporaneously with an EEO claim, does so knowingly and voluntarily. Lockhart v. U.S., 961 F. Supp. 1260, 1267 (N.D. md. 1997). Therefore, absent some extenuating circumstances, plaintiff waived all of his claims arising out of his August 1993 termination by entering into the pre-arbitration settlement of the grievance, which specifically included "any/all EEO complaints (formal or informal . . . ."
Plaintiff argues that the settlement agreement does not bar his claims because there was a "failure of consideration because he did not receive the agreed upon backpay within a reasonable period of time." There are two fallacies with this argument. First, the agreement does not specify a time period for payment of the backpay, and plaintiff accepted the payment when it was tendered. Second, aside from the backpay, plaintiff also received reinstatement. Having received something of value in exchange for his own promise or detriment, consideration exists, and the court does not inquire into its adequacy. Wagner v. Nutrasweet Co., 95 F.3d 527, 532 (7th Cir. 1996). Accordingly, the court concludes that plaintiff has waived all claims arising out of the 1993 termination and defendant's actions that pre-date the April 1994 settlement.
Plaintiff also filed a grievance regarding his March 1998 termination. On April 22, 1999, plaintiff settled this claim in a pre-arbitration settlement agreement, resulting in his reinstatement on April 30, 1999, and backpay for the period between April 27, 1998, and April 25, 1999. Because, unlike the agreements in Lockhart and Wagner, this settlement agreement made no mention of any EEO claims it cannot be considered the basis for a knowing waiver of any EEO claim relating to the March 1998 termination.
The only claim plaintiff makes with respect to the March 1998 termination is that his dismissal was in retaliation for pursuing his previous EEO claim. Plaintiff never engaged in the informal EEO pre-complaint counseling program, nor did he file a formal EEO complaint with respect to his retaliation claim. It is well settled that before a plaintiff can bring a Rehabilitation Act claim in federal court, he must exhaust his available administrative remedies. Lockhart, 961 F. Supp. at 1266. "In the case of discrimination by a federal agency, including the Postal Service, those remedies include any remedies available within the agency that the complainant must pursue before the alleged discrimination becomes final agency action, and he not only may but must exhaust those remedies before he can bring suit." Id. (quoting McGuinness v. United States Postal Service, 744 F.2d 1318, 1320 (7th Cir. 1998). Because plaintiff never presented his retaliation claim to the USPS, he has failed to exhaust the available administrative remedies, leaving the court without subject matter jurisdiction over that claim. Id.
Plaintiff argues in his brief that he was terminated for filing the instant lawsuit. The lawsuit , however, was filed on June 18, 1998, two months after the termination.
CONCLUSION
For the reasons set forth above, defendant's motion for summary judgment is granted as to plaintiffs claim that he was wrongfully terminated. Plaintiffs retaliation claim is dismissed for lack of subject matter jurisdiction.