Opinion
Civil Action No. 3:01CV-652-S
November 13, 2002
MEMORANDUM-OPINION
This matter is before the court on the defendant's motion to dismiss or in the alternative, for summary judgment (DN 5). The plaintiff, Harry A. Palmer ("Palmer"), filed this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 et seq (as amended) alleging employment discrimination and retaliation by the defendants, John E. Potter, Postmaster General and the United States Postal Service ("Postal Service"). Palmer alleges he was treated differently based on his sex and in retaliation for protected activity when he was removed from his employment on charges that he engaged in improper conduct and sexual harassment. Palmer claims that in contrast, Debra Todorich ("Todorich"), who was the victim of the alleged sexual harassment and was also removed for improper conduct, was returned to work pursuant to a `last chance' settlement agreement negotiated by her labor union. While Palmer was not offered a settlement agreement, he was later returned to work through the same grievance process.
STATEMENT OF FACTS
The plaintiff, Harry Palmer had been employed by the U.S. Postal Service as a letter carrier at its Okolona branch in Louisville, Kentucky since November 1971. His employment status at the time of the alleged events was full-time regular employee. Debra Todorich had been a letter carrier at the Okolona branch since June of 1999. Her employment status at the time of the alleged events was transitional employee.
A full-time regular employee is a career employee who is assigned a forty (4) hour per week work schedule.
A transitional employee is a temporary employee whose non-career appointment may not exceed six (6) months, per calendar year.
On October 25, 2000, Palmer contacted Susan Arnold ("Arnold"), the station manager of the Okolona branch, and demanded she investigate the source of a rumor that he had received oral sex from Todorich in a nearby parking lot. Arnold invested, interviewing the source of the rumor and Todorich.
When questioned, Todorich denied she had performed oral sex on Palmer in the parking lot, but revealed that she was involved in a relationship with Palmer that, at first, was consensual, but became coercive when she tried to withdraw. According to Todorich, she and Palmer engaged in oral sex and intercourse in the back of Palmer's postal vehicle on several occasions on his postal route. During the course of the affair, Todorich was promoted from casual employee to transitional employee. She also received a cash bonus. She attributes both of these to Palmer's influence with the Union.
Todorich confided in Arnold that when she attempted to withdraw from the relationship, Palmer had badgered, threatened and blackmailed her to continue. He threatened to tell Todorich's husband about the affair and show him a nude picture that she had given him earlier. According to Todorich, Palmer also threatened to use his influence with the Union to have her fired if she did not continue the affair.
Upon hearing Todrich's allegations, Arnold placed Palmer on administrative leave for allegedly engaging in improper conduct and sexual harassment. Todorich was not placed on administrative leave. The Postal Service conducted an investigation of the allegations.
On February 5, 2001, Robert Lochhead ("Lochhead"), the Postmaster for Louisville, Kentucky, issued a "Notice of Proposed Removal" letter to Palmer. The letter proposed to remove him from his position no sooner than thirty (30) days from receipt of notice. The union pursued Palmer's termination through the grievance process.
On February 16, 2001, Lochhead issued a "Notice of Removal" to Todorich. The letter proposed to remove her by March 24, 2001. The union also pursued Todorich's termination through the grievance process. By a March 15, 2001 settlement agreement, the Postal Service agreed to reduce Todorich's disciplinary action to a 30-day suspension.
On March 6, 2001, Palmer filed a complaint with the Equal Employment Opportunities office of the U.S. Postal Service alleging sex discrimination in his administrative leave. The complaint was dismissed on April 4, 2001 because Palmer failed to file it within 45 days of being placed on administrative leave, in violation of C.F.R. § 1614.105. Although Palmer was advised in the notice of dismissal that he had 90 calendar days from receipt of the decision to file a civil action, he did not file this action until November 9, 2001.
This complaint is untimely and is not the basis of the current action.
On March 26, 2001, Lochhead issued a "Letter of Decision-Removal" to Palmer, removing him from his employment effective April 2, 2001.
On this basis of this removal, Palmer filed another complaint with the Equal Employment Opportunities office of the U.S. Postal Service alleging sex discrimination and retaliation for filing an earlier claim of sex discrimination. The agency concluded that Palmer failed to establish a prima facie case of sex discrimination, and that the Postal Service had articulated a legitimate nondiscriminatory reason for their actions under the McDonnell Douglas framework.
After his removal, Palmer's grievance eventually went to arbitration. The arbitrator sustained the charge of improper conduct, yet returned Palmer to work at another location without back pay.
LEGAL ANALYSIS
Because both parties have attached documents outside the pleadings in support of their memoranda, the court will consider defendant's motion as a motion for summary judgment under Rule 56(b)and (c).
A party moving for summary judgment has the burden of showing that there are no genuine issues of fact and that the movant is entitled to summary judgment as a matter of law. Adickes v. S.H. Kress Co., 398 U.S. 144, 151-60, 90 S.Ct. 1598, 16 L.Ed.2d 142 (1970); Felix v. Young, 536 F.2d 1126, 1134 (6th Cir. 1976). Not every factual dispute between the parties will prevent summary judgment. The disputed facts must be material. They must be facts which, under the substantive law governing the issue, might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2510 (1986). The dispute must also be genuine. The facts must be such that if they were proven at trial, a reasonable jury could return a verdict for the non-moving party. Id. at 2510. The disputed issue does not have to be resolved conclusively in favor of the non-moving party, but that party is required to present some significant probative evidence which makes it necessary to resolve the parties' differing versions of the dispute at trial. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89 (1968). The evidence must be construed in a light most favorable to the party opposing the motion. Bohn Aluminum Brass Corp. v. Storm King Corp., 303 F.2d 425 (6th Cir. 1962).
In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court set forth the allocation of the burden in a Title VII case where no direct evidence of discrimination exists. First, the plaintiff must establish a prima facie case of discrimination by showing: (1) membership in the claimed protected group; (2) an adverse employment action; and (3) treatment that was less favorable than similarly situated employees who are not members of the claimed protected group. Id. at 802-04. Once the plaintiff establishes his prima facie case, the employer must articulate a legitimate, nondiscriminatory reason for the employment decision. Id. The plaintiff must then prove by a preponderance of the evidence that the employer's proffered reason was a pretext for intentional discrimination. Id. It is not sufficient to prove that the defendant did not actually rely on his stated reason. There must be a further finding that the defendant relied on a discriminatory motive to establish Title VII liability. St. Mary's Honor Center v. Hicks, 509 U.S. 515, 524 (1993). At all times, the ultimate burden to establish intentional discrimination remains with the plaintiff. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
The plaintiff has urged this court not to apply the McDonnell Douglas framework, arguing there is direct evidence of discrimination. However, the plaintiff has failed to produce any such evidence.
To be deemed "similarly-situated" in the disciplinary context, "the individuals with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." Ercegovich v. Goodyear Tire Rubber Co. 154 F.3d 344, 352 (6th Cir. 1998), citing Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992).
Palmer has failed to establish that he and Todorich were similarly situated. While Palmer and Todorich were both charged with improper use of postal time and property, only Palmer was charged with the additional offense of sexual harassment. Palmer's "Notice of Proposed Removal" finds that he violated the Post Office's no tolerance sexual harassment policy, the 1992 Joint Statement of Violence and Behavior in the Workplace. The additional charge of sexual harassment is a differentiating circumstance that distinguishes the treatment of Palmer and Todorich.
In reviewing the facts in the light most favorable to Mr. Palmer, this court rejects the argument that Palmer and Todorich were not similarly situated because they did not share the same employment status. The plaintiff has produced evidence that the difference in status should not have resulted in differential disciplinary treatment.
Because Todorich and Palmer are not similarly situated, it is unnecessary to resolve whether they received different treatment. However, the court notes that Todorich and Palmer both received the same disciplinary sanction-dismissal. The only distinction in their treatment rests in the grievance process where Todorich was offered a settlement offer and Palmer was not.
Even if Palmer had established a prima facie case of discrimination, which he has not, the Postal Service has articulated a legitimate nondiscriminatory reason for dismissing Palmer. In the "Letter of Dismissal-Removal," Postmaster Robert Lochhead found that the sexual harassment and improper conduct charges against Palmer were fully supported by the evidence and warranted his removal from the Postal Service.
Palmer, through counsel, has supplied this court with a voluminous amount of evidence in an attempt to establish he did not sexually harass Ms. Todorich. However, whether or not such harassment actually occurred is not an issue in this case. Allegations of sexual harassment constitute a legitimate nondiscriminatory reason to dismiss an employee. Elrod v. Sears, Roebuck Co., 939 F.2d 1466 (11th Cir. 1991); Minnis v. McDonnell Douglas Technical Services Co., 162 F. Supp.2d 718, 735 (E.D.Mich. 2001). Even if such allegations of sex harassment are untrue, the inquiry by the court is limited to whether Postmaster Lochhead believed that Palmer was guilty of sexual harassment, and if so whether this belief was the reason behind Palmer's discharge.
In this case, even if Palmer did not sexually harass Todorich, the Postal Service, after conducting a thorough investigation, reasonably believed that he had. Moreover, Postmaster Lochhead clearly stated that Palmer was dismissed for sexually harassing and engaging in improper conduct with Todorich.
Since the Postal Service articulated a legitimate nondiscriminatory reason for dismissing Palmer, Palmer must establish that reason is pretextual. Palmer has supplied evidence attempting to establish the sexual harassment did not occur. However, he has provided no evidence establishing the Postal Service's conclusions as unreasonable. Further, he has not shown that the alleged sexual harassment incident was not the reason he was dismissed. Thus Palmer cannot carry the burden of proof required under the McDonnell Douglas framework to establish he was discriminated against on the basis of his sex.
Although Palmer has also raised a retaliation claim, he has provided no evidence to support this claim. An examination of the facts, viewed in the light most favorable to Palmer, reveals that such a claim is unsubstantiated. Palmer filed his complaint with the EEO on March 6, 2001. The Postal Service had already issued to him a "Proposed Notice of Removal"on February 5, 2001. Thus, it is chronologically impossible that Palmer was removed in retaliation for filing a claim with the EEO.
The motion of the defendants, John E. Potter, Postmaster General, and the United States Postal Service, for summary judgment will be granted by separate order.