Magyar v. U.S. Postal Serv.

KLAY MAGYAR, Plaintiff, v. UNITED STATES POSTAL SERVICE, et al., Defendants.

Case No. 18-13447

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

May 6, 2019

HON. AVERN COHN

MEMORANDUM AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

(Doc. 12)

I. Introduction

This is an employment case. As will be explained, plaintiff Klay Magyar (Magyar), a long time letter carrier for the United States Post Office, voluntarily retired when faced with termination. He and his wife, Linda Magyar, also sued, naming the following defendants:

- the United States Postal Service

- Postmaster Megan J. Brennan, in her official capacity,

- Adrana Jones, Postmaster of the Southfield, Michigan post office, in her official capacity,

- Lashiba Tarrance, Supervisor Customer Services for the Southfield, Michigan post office, in her official capacity,

- the National Association of Letter Carriers ("NALC" or "the union")

- Carl Blassingame, a union representative

- John Dickerson, a union representative

The complaint asserts the following claims:

- Count I - violation of Title VII (race discrimination, sex discrimination, age discrimination, and retaliation)

- Count II - violation of 42 U.S.C. § 1983 (due process)

- Count III - violation of 42 U.S.C. § 1985(3) and § 1986 (conspiracy)

- Count IV - civil conspiracy

- Count V - violation of Michigan's Elliot Larsen Civil Rights Act

- Count VI - loss of consortium

Following a stipulation¹ and based on concessions in Magyar's response brief, the only claim at issue is Count I - Magyar's Title VII claim against the United States Postal Service (USPS) and Post Master General Megan J. Brennan in her official capacity.^{2 3} Magyar claims discrimination based on his race (Caucasian), sex (male), age,⁴ and retaliation.

Before the Court is the USPS's motion to dismiss or for summary judgment on Magyar's Title VII claim. For the reasons that follow, the Court will consider the motion as a motion to dismiss and the motion will be granted.⁵

II. Background

The following facts are gleaned from the record as follows:⁶

A. General/November 4, 2015 Incident

Magyar was employed as a full-time mail carrier by the USPS at the Southfield Post Office in Southfield, Michigan. He began working for the USPS in 1981.

The events which led to this lawsuit began on November 4, 2015. On that day, USPS supervisor Karen Chan (Chan) attempted to conduct a route evaluation of Magyar's mail route, known as a "3999 evaluation" or a "3999." According to Chan, the evaluation was prompted by Magyar's complaints that his route was too long which resulted in him getting paid approximately $5000.00 in overtime per year. Magyar admits that he earned the overtime and says "he had a job assignment which was coveted byother employees." Doc. 19 - Magyar's response brief at p. 9.

Chan reported that Magyar was hostile toward her upon her arrival, made racially derogatory comments about other postal employees to her, and initially refused to permit the inspection. This resulted in a meeting with Magyar and Chan and two union stewards to discuss the situation. Eventually, Magyar agreed to the inspection which required Chan to accompany him on his route. Chan reported that Magyar hit her with a parcel while he was in the process of loading his mail truck, hit her in the knee with a mail tub while she was sitting in the vehicle, and then - when Chan attempted to stop the inspection before they even left the facility - Magyar initially refused to let her leave the truck before eventually relenting.

Chan reported the incident to the Southfield postmaster that day and provided a statement documenting the events. Afterwards, the Southfield postmaster, Adrana Jones (Jones), an African-American, told Magyar to leave his post and go home. Magyar states he was not given an explanation for why he was told to leave.

B. USPS/Union Investigation

On November 4, 2015, Magyar filed a Step A union grievance related to being told to go home.

On November 6, 2015, Jones reported the incident relayed by Chan to USPS Inspectors.

On November 6, 2015, Magyar received a certified letter dated November 4, 2015 signed by Jones and Lashiba Tarrance (Tarrance), Magyar's supervisor and also African-American, which states in relevant part:

This is an official written notice that you are verbally put on Emergency Placement on November 4, 2015, in accordance with Article 16.7 of the National Agreement.

You will continue off duty (without pay) status until you are advised otherwise.

The reason(s) for this action are: INJURIOUS TO SELF OR OTHERS

BASED ON YOUR BEHAVIOR ON NOVEMBER 4, 2015, THERE IS REASON TO BELIEVE THAT RETAINING YOUR ON DUTY MAY RESULT IN INJURY TO YOURSELF OR OTHERS. ACCORDINGLY, YOUR RETENTION IS A DUTY STATUS WOULD NOT BE WITHIN THE BEST INTEREST OF THE POSTAL SERVICE.

On November 16, 2015, Magyar received a telephone call from a manager at the Southfield post office stating he was to return to work on November 20, 2015 and would be required to attend an investigative interview.

On November 20, 2015, Magyar reported but was told by a union steward to go home because the interview was cancelled.

On November 20, 2015, an Investigative Postal Inspector sent an Investigative Memorandum to Jones regarding the November 4, 2015 incident. The memoradum reveals that the postal inspectors interviewed Chan on November 9, 2015, Magyar on November 13, 2015 (at a union hall), and postal carrier Nannette Barclay, a witness, on November 13, 2015. The inspector objectively documented the interviews but did not make any findings of fault or make any recommendations.

Magyar returned to work on December 1, 2015 and participated in an investigative interview during which Magyar generally denied Chan's version of the events.

On December 10, 2015, Magyar participated in a mediation with Jones but no agreement was reached.

On December 11, 2015, Carl Blassingame, a union steward and former defendant, told Magyar that he would be paid for the period he was suspended from November 20 through November 30. This agreement was memorialized in a partial settlement of grievance number NALC-SF15-23 USPS, dated December 17, 2015. Itwas signed by Jones as the USPS designee and Blassingame, as the union designee. A final settlement of the grievance, dated February 22, 2016, and signed by the same parties, also required that the Emergency Placement suspension notice be expunged from Magyar's file.

On January 13, 2016, Tarrance issued a Notice of Removal (Non-Veteran) to Magyar which is dated January 12, 2016. The Notice of Removal states that Magyar would be terminated effective February 19, 2016. It also informed Magyar that he had the right to file a union grievance contesting his removal and if he filed a grievance, his termination would be deferred pending the outcome of the grievance process. Magyar received the notice but refused to sign it. The Notice of Removal also states that Magyar had failed to provide an acceptable explanation for his conduct on November 4, 2015 when he was interviewed by the postal inspectors on December 1, 2015. The notice also pointed to several sections of the Labor Relations Manual and the City Delivery Carriers Duties and Responsibilities that Magyar's conduct on November 4, 2015, had violated.

The same day he received the Notice of Removal, Magyar did two things. First, he filed a grievance related to the Notice of Removal. Second, he began the online administrative process to retire from the USPS. Magyar completed the administrative process and retired from the USPS effective February 1, 2016.

On February 22, 2016, the union and USPS settled Magyar's second grievance, grievance number NALC SF16-03 USPS, related to the Notice of Removal. The terms of the settlement read as follows: "The Notice of Removal dated 1/12/2016, will be rescinded and expunge [sic] from all files based on the above grievant retiring from thePostal Service with the effective date of 2/1/2016. This resolves all complaints concerning the Notice of removal." The settlement was signed by Jones as the USPS designee, and Blassingame, as the union designee.

C. EEOC Investigation

Meanwhile, while the USPS/Union investigation was ongoing, Magyar contacted the EEOC office on November 4, 2015, after he was suspended.

In a signed "Information for Pre-Complaint Counseling" EEOC form, dated November 13, 2015, and received November 16, 2015, Magyar asserted that he was suspended on November 4, 2015 for discrimination related to age and gender, and retaliation for prior EEOC activity. He acknowledged that he had filed a union grievance on the same issue on November 4, 2015. There is no charge of racial discrimination in this document.

Throughout the EEOC process, Magyar accused Tarrance and Jones specifically of discriminating against him, given that they had issued the initial suspension and the Notice of Removal.

In a second "Information for Pre-Complaint Counseling" EEOC form, dated January 2, 2016, and received January 19, 2016, Magyar made similar allegations of discrimination and retaliation related to various negative comments he alleged USPS staff and management had made to him since the November 4, 2015, suspension. The second document added a charge of racial discrimination.

In the signed investigatory affidavit dated February 2, 2016, the day after he retired, Magyar again asserted that he was suspended on November 4, 2015, based on his race, sex, age, and retaliation for prior EEOC activity. Magyar additionally protestedthe Notice of Removal as discriminatory. He again also acknowledged that he had filed a union grievance on the same matter. Magyar's February 2, 2016, affidavit does not ask for his job to be restored. In answer to the question, "What remedy do you request to resolve this complaint?" he wrote "I want to be made whole, to include but, not limited to, pay, leave, and all benefits."

At no point either before or after the EEOC process did Magyar either...