Armelin v. Donahoe

DALE P. ARMELIN, Plaintiff, v. PATRICK R. DONAHOE, Postmaster General;and UNITED STATES POSTAL SERVICE, Defendants.

Civil Action No. 11-cv-00048-MSK-KLM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

August 6, 2014

Honorable Marcia S. Krieger

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION IN LIMINE

THIS MATTER comes before the Court pursuant to the Defendants' ("USPS") Motion In Limine (# 177), and Mr. Armelin's response (# 179). The Court does not deem a reply necessary. See D.C. Colo. L. Civ. R. 7.1(d).

The Court assumes the reader's familiarity with the issues presented in this case and the proceedings to date.

A. Adverse employment actions

USPS moves to preclude the admission of evidence relating to Mr. Armelin's contention that being "subjected to increased scrutiny, criticism, and the compiling of negative reports" constitutes a separately-actionable adverse employment action sufficient to support Mr. Armelin's claim for retaliation. USPS argues that: (i) Mr. Armelin did not administratively exhaust any claim of retaliation premised on increased supervision; and (ii) that, as a matter oflaw, being subjected to increased supervision cannot constitute an actionable adverse employment action.

It is well-settled that federal employees must raise any allegation of unlawful discrimination or retaliation within 45 days of the unlawful act by contacting the agency's EEO counselor. Green v. Donahoe, ___ F.3d ___, 2014 WL 3703823 (10^th Cir. Jul. 28, 2014), citing 29 C.F.R. § 1614.105(a)(1). If initial counseling fails to resolve the issue, the employee must file a formal charge with the agency within 15 days of being notified of the conclusion of the counseling. Id., citing 29 C.F.R. § 1614.106. The agency then investigates the charge and issues a determination. 29 C.F.R. § 1614.108. The employee may obtain review of an adverse determination through further administrative proceedings through the EEOC, or may instead elect to pursue judicial remedies under Title VII. Green, id., citing 42 U.S.C. § 2000e-16(c). The claim asserted in any subsequent judicial proceeding must fall "within the scope of the administrative investigation that could reasonably be expected to follow from the allegations raised in the charge" -- in other words, "the charge must contain facts concerning the discriminatory and retaliatory actions underlying each claim." Id., citing Jones v. UPS, Inc., 502 F.3d 1176, 1186 (10^th Cir. 2007). In the 10^th Circuit, an employee's failure to exhaust the agency's administrative process operates as a jurisdictional defect precluding court consideration of the unexhausted claim. Id., citing Jones v. Runyo, 91 F.3d 1398, 1399 (10^th Cir. 1996).

Here, the parties apparently agree that the operative administrative charge filed by Mr. Armelin is the one signed by him on October 8, 2006 (Charge No. 4E-800-0247-06). The narrative portion of that charge consists of six typewritten pages. The first paragraph identifies the specific employment actions Mr. Armelin complains of: "On June 30, 2006, I was put on Emergency Placement In a Without Pay Status . . . for two alleged offenses. On July 24, 2006, Iwas given a Notice of Removal for these two same offenses." The remainder of the document discusses, in some detail: (i) a June 28, 2006 confrontation with Paul Corbeil, Mr. Armelin's supervisor, over whether Mr. Armelin improperly left keys inside a truck, (ii) a June 28, 2006 confrontation between Mr. Armelin's and another supervisor, Abe Payton, over Mr. Payton's instruction that Mr. Armelin "finger mail" while walking his route and Mr. Armelin refusing to do so, as that "violat[ed] postal safety guidelines"; and (iii) discussion of a June 30, 2006 disciplinary notice for making a U-turn in his truck.

The USPS then sent Mr. Armelin an "Acceptance for Investigation" letter, noting that the "specific issues" raised in his charge were ". . . retaliation (prior EEO activity) when: 1) on June 30, 2006 you were placed on Emergency Placement without Pay Status; and 2) on July 24, 2006 you were issued a Notice of Removal." The letter stated that "if you do not agree with the defined accepted issues, you must provide a written response specifying the nature of your disagreement within seven calendar days." The record does not reflect that Mr. Armelin disputed the USPS' interpretation of his charge.

Based on this record, the Court cannot say that Mr. Armelin adequately exhausted a distinct contention that he was retaliated against by the USPS engaging in "increased scrutiny, criticism, and the compiling of negative reports" beyond the negative disciplinary reports specifically addressed in the charge. Assuming - without necessarily finding - that being subjected to increased supervisory observation and criticism can constitute an adverse action sufficient to support a retaliation claim, Mr. Armelin's narrative recites several specific instances of allegedly retaliatory discipline, but gives no suggestion that he is also complaining about a more nebulous campaign of "increased scrutiny [and] criticism" beyond those specific events. He does not, for example, identify any instances in which his supervisors accompanied orfollowed him on routes in ways they did not normally do for others, or that they reviewed his time cards or work logs in atypical ways. No reasonable reading of the six-page narrative statement permits a conclusion that Mr. Armelin was attempting to complain about a broader campaign of "increased scrutiny" as compared to certain specific instances of actual discipline imposed upon him.

Mr. Armelin argues in response to the motion that a single passage in his charge indicates that he raised this issue. That passage states that he has filed numerous charges against Mr. Payton since 2004, and that "ever since then, Payton has striven to manufacture a case for my termination and I have filed seven additional charges for retaliation as a result of his actions." (Emphasis added.) Nothing in this passage is susceptible to an interpretation that Mr. Armelin is necessarily referring to "increased scrutiny [and] criticism" by this language. To the extent that Mr. Armelin's charge offers any explanation of what he means by Mr. Payton "striv[ing] to manufacture" grounds for termination, that explanation would be embodied by the "seven additional charges" Mr. Armelin filed against Mr. Payton. By definition, claims arising from those seven prior instances of alleged retaliation would have to be separately exhausted and alleged in this action, but nothing in the record in this case indicates that Mr. Armelin is raising any discrete instances of conduct other than those enumerated above and recited in the Acceptance for Investigation letter. Moreover, nothing in Mr. Armelin's charge suggests that he is complaining about, much less that the USPS understood him to complain of, a campaign of "increased scrutiny" that did not result in actual discipline. If anything, the most plausible reading to be given to this passage is that Mr. Payton's "striv[ing] to manufacture a case for [Mr. Armelin's] termination" is simply that Mr. Payton repeatedly issued unjustified disciplinary notices against Mr. Armelin, such as those specifically discussed in the narrative. Thus, theCourt finds that Mr. Armelin failed to adequately exhaust any contention that he was subjected to "increased scrutiny [and] criticism" as an adverse action separate from the specific discipline imposed upon him in June and July 2006.¹

Having so found, the Court does not intend to instruct the jury that they may find a verdict in favor of Mr. Armelin if they find that the USPS stepped up its supervision of him in retaliation for his EEO complaints; rather, Mr. Armelin must prove that the specific instances of discipline imposed against him in June and July 2006 were retaliatory. It may be permissible for Mr. Armelin to testify that he believed that his supervisors were more active in their supervision of him after his EEO complaints than they had been before, or that the criticism of his work increased to an atypical level after such complaints, as such testimony may be circumstantial proof of a retaliatory intent on the part of the supervisors or may suggest that the discipline imposed on Mr. Armelin was pretextual. However, that determination will necessarily await the proffer of specific evidence, in context, at trial and a timely objection by the USPS to the relevance of such testimony.

B. Vacatur of termination

Mr. Armelin challenged his July 2006 termination through the collective bargaining agreement's grievance procedure. In October 2006, a "Dispute Resolution Team," consisting of a USPS representative and union representative, concluded that the USPS lacked "just cause" for the termination under the contract. Specifically, the Team concluded that there was insufficient evidence of "a rule or regulation (Postal or Civil) that prohibits U-turns," and that the disciplineimposed on Mr. Armelin for leaving his key in the ignition while working outside the truck was not a violation of the rule nominally cited by the USPS (although it may have constituted a violation of a different rule). The Team ordered that "the disciplinary action will be removed from all files and records immediately upon receipt of this decision."

The USPS moves to exclude evidence relating to the decision of the Dispute Resolution Team, arguing that: (i) the written decision is hearsay, (ii) it is irrelevant; and (iii) if relevant, it is unduly prejudicial. Mr. Armelin contends that the decision is admissible, relevant, and sufficiently probative.

Although the Court has some doubt as to whether the Team's written decision constitutes inadmissible hearsay, it need not reach that question because it finds that the fact of the decision (c.f. the documentary exhibit) is relevant and undisputed, and thus, properly...