Armelin v. Donahoe

Filing 184

ORDER granting in part and denying in part 177 Motion in Limine by Chief Judge Marcia S. Krieger on 8/6/14.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 11-cv-00048-MSK-KLM
DALE P. ARMELIN,
Plaintiff,
v.
PATRICK R. DONAHOE, Postmaster General; and
UNITED STATES POSTAL SERVICE,
Defendants.
______________________________________________________________________________
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 of

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law, 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 (10th 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 (10th Cir. 2007). In the 10th 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 (10th 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, I

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was 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 or

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followed 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, the

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Court 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 discipline
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Even assuming the matter was sufficiently exhausted by Mr. Armelin in the
administrative process, the Court finds that his suggestion that the claim is now cognizable as a
retaliatory hostile environment claim is inconsistent with the scope of the Pretrial Order, which
makes no mention whatsoever of such a claim. The elements of a retaliatory hostile environment
claim are significantly different than those of a retaliation claim premised on a discrete act, and
the Pretrial Order recites only the latter.
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imposed 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 established as a
stipulated fact.
The decision – that Mr. Armelin’s conduct did not violate the USPS policies cited in the
disciplinary notices – is relevant. The essential question in a retaliation claim of this type is
whether the legitimate reasons given by the employer for the adverse action are false and a
pretext for retaliation. See generally St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 510-11
(1993). A determination by the factfinder that the nominally-legitimate reason proffered by the
employer for the adverse action is false can be sufficient, in and of itself, to permit the inference
that the true reason was retaliation. Id. Thus, a determination by the Dispute Resolution Team
that Mr. Armelin’s conduct did not violate USPS policy could be said to be evidence that the
USPS’ stated reason for that termination is false and thus, arguably probative as to the question
of pretext.

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Ordinarily, the Court might agree with the USPS that arbitral decisions overturning
discipline are not relevant or present an undue risk that the arbitrator’s findings will prejudice the
jury’s determination, but the situation presented here differs from an arbitration decision made
by a neutral third-party. The Dispute Resolution Team is not a neutral arbitrator rendering an
opinion; rather, it is a joint union-management grievance adjustment team, including a
representative of the USPS. The language of the decision references the Team “mutually
agree[ing]” to “resolve this grievance.” Rather than being a third party’s mere opinion about a
matter, the decision reflects the USPS, through its agent, agreeing to certain matters. The USPS
agent agreed that the disciplinary violations contained in the notices issued to Mr. Armelin were,
in fact, not violations of USPS policy. This admission is binding on the USPS; it cannot now
contend in that the alleged violations justified termination.2
That being said, the Court sees no reason why the decisional document itself must be
admitted as an exhibit. It is undisputed that a joint union/management grievance team
overturned Mr. Armelin’s termination in October 2006 and ordered the June 2006 disciplinary
notices purged, finding that his conduct did not violate established rules of the USPS. The Court
expects that the parties will craft a stipulation of fact that will ameliorate the need for
presentation of testimonial or documentary evidence on this point. See Fed. R. Civ. P. 11(b)(4).
Accordingly, the Court grants in part and denies in part the USPS’ motion seeking to exclude
evidence of the Team’s decision.

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The USPS can, of course, argue that the supervisor issuing the notices believed in good
faith that the discipline was warranted, or that the policies at issue are ambiguous or subject to
differing reasonable interpretations. And it can argue that, even if the discipline was improperly
imposed, the jury should not infer any retaliatory motive. And, it can always argue that Mr.
Armelin’s claimed damages are overstated or not causally connected to the discipline.
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C. Undisclosed witnesses
The USPS seeks to preclude Mr. Armelin from calling five witnesses3 on the grounds that
Mr. Armelin failed to disclose those witnesses in his Rule 26(a) disclosures. Mr. Armelin
concedes that the witnesses were not properly disclosed, but argues that the nondisclosure was
“substantially justified or harmless.”
Fed. R. Civ. P. 37(c)(1) sets forth a presumptive sanction for a party’s failure to identify
a witness in its Rule 26(a)(1) disclosures: “the party is not allowed to use that . . . witness to
supply evidence . . . at trial, unless the failure was substantially justified or is harmless.”
Whether a failure to disclose is harmless and/or justified turns on the interplay of several factors,
including: (i) the prejudice or surprise to the other party; (ii) the ability of that party to cure the
prejudice; (iii) the extent to which introducing the testimony would disrupt trial; and (iv) the
moving party’s bad faith or willfulness. Eugene S. v. Horizon Blue Cross Blue Shield of New
Jersey, 663 F.3d 1124, 1129-30 (10th Cir. 2011), citing Woodworker’s Supply, Inc. v. Principal
Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999).
Mr. Armelin has made a prima facie showing on each of the four factors, stating that: (i)
there is little prejudice to the USPS, as two of the three witnesses are its own employees and the
third is the author of a document that was considered during the administrative proceedings on
Mr. Armelin’s charge, and that, in any event, the USPS chose not to conduct any discovery in
this case; (ii) the USPS could readily have cured the prejudice at any time since the initial
disclosure of the witnesses, some of whom were disclosed as early as January 2014 (Ms.
Gaynor) and others were, according to Mr. Armelin, identified “more than six months ago,” by
independently interviewing them; (iii) that the witnesses’ testimony will not disrupt trial, as each
will be called only for brief periods of time; and (iv) that Mr. Armelin’s failure to disclose them
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Mr. Armelin subsequently conceded that two of the five will not be called at trial.
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in his Rule 26 disclosures was inadvertent and a result of his pro se status. The USPS’s motion
does not offer any anticipatory response on any of these factors.
Accordingly, the Court will defer ruling on this aspect of the motion until such time as
Mr. Armelin notifies the Court, in advance, of his intention to call any of these witnesses. At
that time, the USPS may make a proffer as to each of the four Woodworkers factors. The Court
will then determine whether Mr. Armelin’s failure to disclose was substantially justified and/or
harmless and whether the witness may be called.
D. Punitive damages
Finally, the USPS moves to preclude any argument or instruction to the jury on the
availability of punitive damages against it, arguing that it is a federal agency against whom such
damages may not be awarded under 42 U.S.C. § 1981a(b)(1) (“a complaining party may recover
punitive damages under this section against a respondent other than a government, government
agency, or political subdivision . . .).” Mr. Armelin argues that, by law, the USPS is “a freestanding enterprise” that is independently-managed and receives no taxpayer funds.
Numerous courts have addressed this issue and concluded that the USPS is a
governmental agency and thus immune from awards of punitive damages in Title VII cases. See
Robinson v. Runyon, 149 F.3d 507, 516 (6th Cir. 1998); Baker v. Runyon, 114 F.3d 668, 669-72
(7th Cir. 1997); Oakstone v. Postmaster General, 397 F.Supp.2d 48, 58-59 (D.Md. 2005);
Mathirampuzha v. Potter, 317 F.Supp.2d 159, 163-64 (D.Conn. 2005); Prudencio v. Runyon, 3
F.Supp.2d 703, 706-07 (W.D.Va. 1998). The Court finds the reasoning in these cases to be
thorough and persuasive, and indeed, finds it can add little more to this thorough body of law.
Mr. Armelin, on the other hand, cites to no cases standing for the proposition that punitive
damages are available against the USPS under Title VII, and the sporadic cases holding as much

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are persuasively addressed in the decisions cited above. Accordingly, the Court will not instruct
the jury that they may award punitive damages.
For the foregoing reasons, the USPS’ Motion in Limine (# 177) is GRANTED IN PART
and DENIED IN PART as set forth herein.
Dated this 6th day of August, 2014.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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