Comerford v. Potter
Filing
57
ORDER denying 54 Defendant's Renewed Motion for Summary Judgment. Signed by Judge Virginia M. Hernandez Covington on 12/13/2011. (CR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MARK G. COMERFORD,
Plaintiff,
v.
CASE NO:
8:08-cv-648-T-33TBM
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
which was filed on April 26, 2011.
for
Summary
Judgment,
(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.1 (Comerford Depo., Doc. # 20, Exh. 1 at 22:1723:16; 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.
8).
(Doc. # 20, Exh.
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
1
Pursuant to a contract between the National Association
of Letter Carriers (“NALC”) and USPS, carriers within the same
pay grade may trade jobs upon management’s approval at the
post offices involved. See Feb. 2003 NALC-USPS Joint Contract
Administration Manual, § 14 (Voluntary Transfers), at 12-42 &
12-43 (Doc. # 20, Exh. 4).
2
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
disciplined multiple times.
Post
Office,
Comerford
was
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
3
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).
filed
an
informal
EEO
On September 13, 2004, Comerford
charge
alleging
retaliation.
In
October 2004, Comerford retained an EEO advocate and filed a
formal
EEO
complaint
against
Gerace,
Parker
alleging age discrimination and retaliation.
complaint
did
not
identify
the
specific
and
Romano,
Comerford’s
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.
19).
(Doc. # 20, Exh.
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).
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
suspensions
but
investigate
not
the
the
warning
first
letter
two
because
seven-day
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).
31, 2009, USPS filed a motion for summary judgment.
20).
On March
(Doc. #
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
5
expression.”
Circuit
(Doc. # 50 at 4).
vacated
this
Court’s
Comerford’s
retaliation
claim
proceedings
consistent
with
As a result, the Eleventh
Order
and
its
with
remanded
respect
for
opinion.
to
further
(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).
enough
to
defeat
a
A factual dispute alone is not
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
6
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
7
genuine issue of material fact, the court should not grant
summary
Atlanta,
judgment.
846
Samples
ex
1328,
1330
F.2d
rel.
Samples
(11th
v.
City
Cir.
1988)
of
(citing
Augusta Iron & Steel Works, Inc. v. Emp’rs Ins. of Wausau,
835 F.2d 855, 856 (11th Cir. 1988)).
movant’s
response
repetition
of
consists
his
of
However, if the non-
nothing
conclusional
“more
than
allegations,”
judgment is not only proper, but required.
a
summary
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.
at
(Doc. # 1 at ¶ 12; Comerford Depo., Doc. # 20, Exh. 1
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
8
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 v. City of
Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993)(quoting EEOC v.
Reichhold Chemicals, Inc., 988 F.2d 1564, 1571-72 (11th Cir.
1993)).
Once a plaintiff has established a prima facie case,
the
defendant
must
then
come
forward
with
“legitimate
reasons for the employment action to negate the inference of
retaliation.” Id.
If a defendant offers legitimate reasons
for the employment action, a plaintiff then bears the burden
of proving, through a preponderance of the evidence, that
the reasons offered are pretextual.
A.
Id.
Prima Facie Case
The Court finds that Comerford has established a prima
facie case of retaliation.
Circuit
found
that
USPS concedes that the Eleventh
Comerford
9
engaged
in
statutorily
protected expression and concedes that Comerford suffered an
adverse employment action when he was issued seven-day notime-off suspensions on August 26, 2004, and September 16,
2004.
USPS only challenges Comerford’s ability to prove a
causal link between Comerford’s filing the April 2004 EEO
complaint and the suspensions.
USPS argues that Comerford’s immediate supervisor and
disciplinary official, Parker, was not aware of Comerford’s
EEO activity and, therefore, could not have acted on it.
(Doc.
#
20,
Exh.
26).
To
establish
a
causal
link,
a
plaintiff must show that the decision-makers were aware of
the protected conduct.
Gupta v. Fla. Bd. of Regents, 212
F.3d 571, 590 (11th Cir. 2000).
Comerford
asserts
that
Gerace
directed
Parker
to
discipline Comerford in retaliation for his April 2004 EEO
complaint.
In support, Comerford offers a declaration by
Thomas Scardina, a USPS employee in Bradenton, in which
Scardina asserts, in pertinent part, that:
4) Mr. Parker told me that he had been
directed by Mr. Gerace to see that Mr. Comerford
got out of Bradenton Main Office. Apparently he
was unhappy that Mr. Comerford had transferred in
as a result of a mutual trade, that Mr. Gerace had
disapproved.
10
5)
Despite
Gerace’s
disapproval,
Mr.
Comerford, as a result of an EEO and a Union
grievance, had somehow gotten it set aside and his
transfer to Bradenton had been approved or
directed.
6)
Mr. Gerace was very unhappy about that
and I was told by Mr. Parker that he had been
authorized to “do whatever it takes” to get Mr.
Comerford out of Bradenton Main.
Scardina Decl., Doc. # 33-7 at ¶¶ 4-6.
least,
creates
Parker’s
a
genuine
knowledge
of
issue
the
of
April
This, at the very
material
2004
EEO
fact
as
to
complaint
or
Gerace’s role as the actual decision-maker.
In addition, assuming the decision-makers were aware of
the protected activity, the Eleventh Circuit has held that
close
temporal
proximity
gives
rise
to
an
inference
of
causal connectivity sufficient to support a prima facie case
of retaliation.
Donnellon v. Fruehauf Corp., 794 F.2d 598,
601 (11th Cir. 1986); Goldsmith, 996 F.2d at 1163-64.
In
order
be
for
mere
temporal
proximity,
without
more,
to
sufficient evidence of causality, cases uniformly hold that
the temporal proximity must be “very close.”
Clark County
Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001).
Eleventh
Circuit
has
held
seven
and
eight
weeks
sufficiently proximate to create a causal nexus.
11
The
to
be
See Farley
v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir.
1999)(“The charge was made May 19, 1995 and Farley was fired
seven weeks later on July 10, 1995.
We find this timeframe
sufficiently proximate to create a causal nexus for purposes
of
establishing
a
prima
facie
Exterminating
Co.,
Inc.,
160
1998)(finding
a
causal
case.”);
F.3d
connection
697,
Berman
702
because
v.
Orkin
(11th
“the
Cir.
first
transfer occurred within five weeks after Berman had filed
his EEOC charge and both transfers occurred within a couple
of months of the complaint”).
A three-to-four month period,
however, is insufficient to suggest causation.
See Thomas
v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.
2007).
Because Comerford experienced the first suspension
approximately nine weeks after he arrived at the Bradenton
Post
Office,
there
is
close
temporal
proximity
correlative inference of causal connectivity.
and
a
Accordingly,
a prima facie case of retaliation has been established.
B.
Legitimate, Nondiscriminatory Reasons & Pretext
USPS has offered legitimate reasons for its employment
actions.
the
Specifically, USPS alleges that the reasons for
disciplinary
actions
include
unprofessional
time
estimates for delivery, dilatory tactics, and not delivering
12
express
packages
Comerford
in
bears
the
the
required
burden
of
manner.
Therefore,
proving,
through
a
preponderance of the evidence, that the reasons offered are
pretextual.
persuading
“A plaintiff may do so ‘either directly by
the
court
that
a
discriminatory
reason
more
likely motivated the employer or indirectly by showing that
the
employer’s
credence.’”
(11th
Cir.
proffered
explanation
is
unworthy
of
Carter v. City of Miami, 870 F.2d 578, 584
1989)(quoting
Goldstein
v.
Manhattan
Indus.,
Inc., 758 F.2d 1435, 1445 (11th Cir. 1985)); see also St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 514 (1993); Diaz
v. Transatl. Bank, 367 Fed. Appx. 93, 97 (11th Cir. 2010).
To show that the employer’s reasons were pretextual,
the
plaintiff
must
demonstrate
implausibilities,
inconsistencies,
contradictions
the
in
employer’s
“such
weaknesses,
incoherencies,
proffered
or
legitimate
reasons for its action that a reasonable factfinder could
find them unworthy of credence” or that “the employer’s
proferred
‘legitimate
reasons
were
motivated [the employer’s] conduct.’”
not
what
actually
Combs v. Plantation
Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (citations
omitted).
13
However, an employee cannot succeed in demonstrating
pretext
simply
by
quarreling
with
the
wisdom
of
the
employer’s reason or substituting his or her own business
judgment for that of the employer.
Diaz, 367 Fed. Appx. at
97; Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir.
2000).
Rather, the employee “must meet the reason head on
and rebut it” with evidence of pretext.
Id.
An employer
“may fire an employee for a good reason, a bad reason, a
reason based on erroneous facts, or for no reason at all, as
long as its action is not for a discriminatory reason.”
Abel
v.
Dubberly,
210
F.3d
1334,
1339
n.5
(11th
Cir.
2000)(citations omitted).
Comerford argues that Gerace’s evasive testimony more
than satisfies evidence of pretext.
Comerford points to
Gerace’s denial of any knowledge of the April 2004 EEO
complaint or any memory of participating in the related
mediation.
Gerace testified in his deposition:
Q.
A.
All right. Did you hear there was a [union]
grievance filed in addition to the EEO
charge?
I didn’t know about an EEO charge.
Gerace Depo., Doc. 33-2 at 50:23-25.
14
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
A.
Q.
A.
Q.
Well, what happened next, after you said
[Comerford] couldn’t [transfer to Bradenton],
and you threw away his letter that said he
wanted you to reconsider?
I received either a call or an E-Mail from
labor Uh-huh.
- saying that Mr. Comerford was coming on a
[union] grievance settlement.
Okay.
Did you hear anything else about a
mediation conference for an EEO case?
No, sir.
Show
you
this,
this
is
a
document...[regarding a] mediation conference
in Tallahassee; did you receive that letter?
I don’t recall this letter.
...
Sir, again, I’m going to show you again [the
letter], it says that there’s going to be a
[mediation] conference in Tallahassee on
Thursday, April 24th, did you - you don’t
recall ever seeing that letter?
No, sir.
Is it addressed to you?
Yes, sir.
...
So, can we assume by that that you probably
looked at it, and either threw it away or
gave it to your secretary?
No, sir.
You’re telling me you never got it?
That’s what I’m saying sir. I do not recall
seeing this.
Then why is it in your files?
I do not recall seeing this letter.
...
And I don’t recall going to Tallahassee
either.
Did you participate by telephone?
I - again, I don’t recall the letter.
asking
you
about
the
Well,
now
I’m
[mediation]
conference,
do
you
recall
15
participating in a [mediation] conference by
telephone?
No, sir, I do not.
A.
Gerace Depo., Doc. 33-2 at 46:21-49:3.
Comerford
denial
of
following
highlights
any
the
knowledge
documents:
the
of
implausibility
an
EEO
EEO
April
of
Gerace’s
complaint
12,
2004,
with
the
letter
to
Gerace regarding scheduling mediation of the EEO complaint;
an
e-mail
Resolution
from
Gerace
Specialist
responding
that
he
to
would
the
be
EEO
Dispute
attending
the
mediation by phone; the EEO Agreement to Mediate signed by
Gerace; a memorandum to Comerford and Gerace confirming the
scheduling
of
the
mediation;
a
No
Agreement
Letter
to
Comerford and Gerace indicating that both appeared for the
scheduled mediation (Gerace by phone) and that the dispute
was not resolved through mediation; and an April 28, 2004,
letter to Gerace from an EEO Dispute Resolution Specialist
advising Gerace that Comerford had been given a notice of
right
to
file
a
formal
EEO
necessitate a management response.
complaint,
which
would
(Doc. # 33-4).
The Court agrees that Gerace’s testimony regarding his
lack of knowledge of the EEO complaint is evidence that
indirectly shows that USPS’s proferred explanation of its
16
adverse actions may be unworthy of credence.
In addition,
Scardina declared that he had been told by Parker that
Gerace had directed Parker to “do whatever it takes” to get
Comerford out of the Bradenton Post Office because Gerace
was unhappy that the trade denial had been set aside as a
result
of
the
EEO
complaint
and
the
Scardina Decl., Doc. # 33-7 at ¶¶ 4-6.
union
grievance.
Gerace’s testimony
coupled with Scardina’s declaration persuades this Court
that
a
employer
discriminatory
than
given by USPS.
the
reason
legitimate,
more
likely
motivated
nondiscriminatory
See Carter, 870 F.2d at 584.
the
reasons
Based on the
evidence submitted to the Court, there exist genuine issues
of material fact as to whether USPS’s adverse actions were
motivated by an impermissible discriminatory animus, and
whether the reasons given for the disciplinary actions were
pretext for retaliating against Comerford for filing an EEO
age discrimination complaint.
C.
Damages
USPS argues that even if Comerford can prove his claim
of retaliation, he has not suffered any recoverable damages.
Relief under the ADEA is limited to “such legal relief or
equitable relief as will effectuate the purposes of this
17
chapter.”
nor
29 U.S.C. § 633a(c).
compensatory
damages
for
recoverable under the ADEA.2
Neither punitive damages
pain
and
suffering
are
Goldstein, 758 F.2d at 1446
(citing Dean v. American Sec. Ins. Co., 559 F.2d 1036, 1038
(5th
Cir.
1977),
cert.
denied,
434
U.S.
1066
(1978)).
Fringe benefits, however, are ordinarily recoverable.
Id.
(citing Blackwell v. Sun Elec. Corp., 696 F.2d 1176, 1185-86
(6th Cir. 1983)).
compensatory
and
Accordingly, even with the exclusion of
punitive
damages,
the
Court
finds
that
Comerford has alleged recoverable damages including the loss
of fringe benefits such as his seniority.
As such, USPS’s
argument as to damages does not provide a basis for summary
judgment.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Defendant’s Renewed Motion for Summary Judgment (Doc. #
54) is DENIED.
2
Comerford encourages the Court to adopt the Seventh
Circuit Court of Appeals’ approach that permits recovery of
compensatory damages in retaliation cases. The Court declines
Comerford’s invitation. Eleventh Circuit case law excluding
compensatory damages in retaliation cases is binding precedent
on this Court. See, e.g., Goldstein, 758 F.2d at 1446.
18
DONE and ORDERED in Chambers in Tampa, Florida, this
13th day of December, 2011.
Copies: All Counsel of Record
19
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