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Mark G. Comerford v. John E. Potter

December 13, 2011

MARK G. COMERFORD, PLAINTIFF,
v.
JOHN E. POTTER, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, DEFENDANT.



ORDER

This cause comes before the Court pursuant to Defendant John E. Potter, Postmaster General, United States Postal Service's ("USPS") Renewed Motion for Summary Judgment, which was filed on April 26, 2011. (Doc. # 54). Plaintiff Mark Comerford filed a Memorandum in Opposition on May 10, 2011. (Doc. # 55). For the reasons set forth herein, the Motion is denied.

I. Factual Background & Procedural History

Comerford has worked for the USPS since November 1980. (Comerford Depo., Doc. # 20, Exh. 1 at 20:7-11). He was born in 1952 and was 52 years old in 2004 during the time of the alleged age discrimination. (Doc. # 20, Exh. 2).

Comerford, in January 2004, was working as a letter carrier in Tallahassee and arranged a job trade with Daniel Turner, a 56-year-old carrier, to transfer from Tallahassee to Bradenton.*fn1 (Comerford Depo., Doc. # 20, Exh. 1 at 22:17-23:16; Doc. # 20, Exh. 3). Comerford's transfer was denied by Bradenton Postmaster Joe Gerace in March 2004, citing an unsatisfactory attendance record. (Doc. # 20, Exh. 6). After the denial, Comerford filed a complaint with the USPS Equal Employment Opportunity ("EEO") department, alleging that Comerford's age was Gerace's real reason for denying the request. (Doc. # 20, Exh. 9). Comerford also filed a union grievance through the NALC-USPS Dispute Resolution Process on March 24, 2004, alleging Gerace's denial violated the USPS union contract, which states transfers will not be unreasonably denied because of sick leave. (Doc. # 20, Exh. 8). Comerford's EEO complaint was unsuccessfully mediated by the parties, Comerford and Gerace, in April 2004, but the union grievance was resolved in Comerford's favor on April 21, 2004, and his trade request was approved. (Doc. # 33-3; Doc. # 20, Exh. 8).

Comerford started work at the Bradenton Post Office on June 28, 2004. (Doc. # 20, Exh. 10). His direct supervisor was Roger Parker, the station manager was John Romano, and the postmaster for the Bradenton Post Office was Gerace. (Doc. # 20, Exh. 11).

While at the Bradenton Post Office, Comerford was disciplined multiple times. He received a letter of warning on July 26, 2004, a seven-day no-time-off suspension on August 26, 2004, a seven-day no-time-off suspension on September 16, 2004, and a seven-day no-time-off suspension on October 20, 2004. (Doc. # 33-8 at 1-2, 8-9, 19-21, 27--28). There was also a request for disciplinary action dated October 27, 2004, requesting a 14-day suspension for Comerford. (Id. at 34). The reasons for these disciplinary actions included unprofessional time estimates for delivery, dilatory tactics, and not delivering express packages in the required manner. (Doc. # 33-8).

Comerford successfully grieved the first suspension and that suspension was overturned on October 8, 2004. (Doc. # 20, Exh. 15). Comerford also challenged his second and third suspensions through union grievances. (Doc. # 20, Exh. 17; Doc. # 20, Exh. 18 at 4).

Due to the discipline, which Comerford believed to be unwarranted and in retaliation for his age discrimination complaint, Comerford contacted the postmaster in Littleton, Colorado, on September 4, 2004, for transfer to that branch. (Doc. # 20, Exh. 18 at 4). On September 13, 2004, Comerford filed an informal EEO charge alleging retaliation. In October 2004, Comerford retained an EEO advocate and filed a formal EEO complaint against Gerace, Parker and Romano, alleging age discrimination and retaliation. Comerford's complaint did not identify the specific discriminatory actions complained of, but attached the warning letter and Comerford's response to the second notice of suspension. (Doc. # 20, Exh. 21).

Comerford's transfer request was approved, and Comerford was transferred to the post office in Littleton, Colorado, effective November 13, 2004. (Doc. # 20, Exh. 19). In order to not impede the transfer to Colorado, Comerford dismissed the outstanding union grievances, and Gerace agreed not to object to removing the suspensions from Comerford's file. (Doc. # 20, Exh. 17 & Exh. 18 at 4).

This transfer resulted in a loss of his seniority and his regular, full-time work status.

On November 27, 2004, the USPS EEO informed Comerford that it would investigate the first two seven-day suspensions but not the warning letter because the EEO complaint was filed 49 days after the warning letter was issued and, as such, the warning letter was not brought to the attention of the EEO counselor within 45 days of the discriminatory matter as required by federal regulations. (Doc. # 20, Exh. 21). In November 2007, the EEO issued a decision finding no discrimination or retaliation. (Doc. # 20, Exh. 23 at 5-6 & Exh. 24).

On April 4, 2008, Comerford filed a Complaint alleging age discrimination and retaliation. (Doc. # 1). On March 31, 2009, USPS filed a motion for summary judgment. (Doc. # 20). On November 2, 2009, this Court granted USPS's motion as to both the age discrimination and retaliation claims. (Doc. # 42). Thereafter, Comerford appealed the entry of summary judgment as to the retaliation claim only. (Doc. # 47). The Eleventh Circuit found that "the district court erred by granting summary judgment to USPS on the ground that Comerford failed to engage in statutorily protected expression." (Doc. # 50 at 4). As a result, the Eleventh Circuit vacated this Court's Order with respect to Comerford's retaliation claim and remanded for further proceedings consistent with its opinion. (Id.) Accordingly, only Comerford's claim of retaliation remains before the Court, and USPS now renews its Motion for Summary Judgment as to that claim.

II. Legal Standard

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A factual dispute alone is not enough to defeat a properly pled motion for summary judgment; only the existence of a genuine issue of material fact will preclude a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

An issue is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 919 (11th Cir. 1993)). A fact is material if it may affect the outcome of the suit under the governing law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).

The moving party bears the initial burden of showing the court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "When a moving party has discharged its burden, the non-moving party must then 'go beyond the pleadings,' and by its own affidavits, or by 'depositions, answers to interrogatories, and admissions on file,' designate specific facts showing that there is a genuine issue for trial." Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (quoting Celotex, 477 U.S. at 324).

If there is a conflict between the parties' allegations or evidence, the non-moving party's evidence is presumed to be true and all reasonable inferences must be drawn in the non-moving party's favor. Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, the court should not grant summary judgment. Samples ex rel. Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988) (citing Augusta Iron & Steel Works, Inc. v. Emp'rs Ins. of Wausau, 835 F.2d 855, 856 (11th Cir. 1988)). However, if the non-movant's response consists of nothing "more than a repetition of his conclusional allegations," summary judgment is not only proper, but required. Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir. 1981).

III. Analysis

Comerford alleges that because he filed the April 2004 EEO complaint and successfully challenged Gerace's decision to deny his transfer to Bradenton, Gerace retaliated against him. (Doc. # 1 at ¶ 12; Comerford Depo., Doc. # 20, Exh. 1 at 81:13-24, 97:14-98:1, 128:3-10, 130:1-5). A federal employee who is a victim of retaliation due to the filing of a complaint of age discrimination may assert a claim under the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA). Gomez-Perez v. Potter, 553 U.S. 474, 477 (2008).

In order to establish a prima facie case of retaliation, a plaintiff must show that: (1) he was engaged in a protected activity; (2) he suffered an adverse employment action; and (3) there was a causal link between his protected activity and the adverse employment action. See Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). In order to establish the causal link required as part of his or her prima facie case, a plaintiff "need only establish that 'the protected activity and the adverse action were not wholly unrelated.'" Goldsmith ...


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