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PLUMMER v. BOLGER

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


March 2, 1983

PAUL PLUMMER, Plaintiff,
v.
WILLIAM BOLGER, Defendant

The opinion of the court was delivered by: RICHEY

FINDINGS OF FACT AND CONCLUSIONS OF LAW OF UNITED STATES DISTRICT JUDGE CHARLES R. RICHEY

 This is an action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16. The case was tried to the court, sitting without a jury, and was presented in perhaps as able a manner as this Court has ever witnessed. Counsel for both sides are to be commended for their absolutely outstanding work. Indeed, the quality of their efforts has made decision in this case exceedingly difficult. It is, however, the Court's duty to choose between the two sides, and accordingly, the Court hereby enters its findings of fact and conclusions of law, holding for the defendant.

  I. FINDINGS OF FACT

 Plaintiff, Paul Plummer, is a white male of Irish national origin, who has been employed with the United States Postal Service since 1968. He is suing defendant, the Postmaster General of the United States, in an official capacity, for discrimination he alleges occurred in his employment. He alleges discrimination on the basis of race, sex, color, reprisal, and national origin. During the period in question here, all of plaintiff's immediate supervisors were black.

 Plaintiff's difficulties with the Postal Service began in 1975 after he was promoted from the position of Distribution Clerk at the Main City Post Office, Washington, D.C., to the supervisory position of Foreman, Mails. Following his promotion, plaintiff was assigned to the Registry Section, where he became involved in verbal and physical altercations with postal employees under his supervision on several occasions. As a result of these altercations, plaintiff received, first, a written advisement on his reference card, *fn1" second, a disciplinary counseling, and finally, in January, 1976, was demoted from Foreman back to the position of Distribution Clerk.

 It was after this incident that plaintiff filed the first of what proved to be a seemingly endless string of E.E.O. complaints, ten of which are in issue here. A final administrative decision on the first complaint held that defendant had not discriminated against plaintiff. Indeed, final administrative decisions on all of plaintiff's complaints have found no discrimination against plaintiff.

 Following his reduction in position, plaintiff was assigned to work in areas of the Post Office other than Registry, where two of his altercations with employees had taken place. Utilizing rights granted to him by a nationwide collective bargaining agreement, however, plaintiff subsequently bid on and obtained an assignment back to Registry. Evidence was introduced at trial suggesting that plaintiff sought to return to Registry in order to prove he could not be pushed around, although plaintiff claimed that he did so in order to ensure himself of security in shift assignment.

 After plaintiff returned to Registry, he was involved in another series of incidents, about which he also filed E.E.O. complaints. The first of these incidents occurred on July 2-3, 1978, when plaintiff worked four hours of overtime before and four hours of overtime after his scheduled eight hour shift, for a total of 16 consecutive work hours. City Post Office policy prohibits any employee from spending more than 12 consecutive hours on the job. On July 9, when Superintendent of Registry, Frederick J. Campbell, learned of plaintiff's violation of this policy, he directed Foreman Leon Miller to instruct plaintiff not to work any overtime at the end of his shift that night. Miller thereupon instructed plaintiff not to remove his timeclock punch-card from Registry at the end of his scheduled work shift without the approval of a Registry supervisor. Nonetheless, at the end of his scheduled work shift that day, plaintiff did take his time card from Registry without approval from a Registry supervisor and proceeded to work an additional four hours of overtime in another area of the Post Office. The next day, Superintendent Campbell personally instructed plaintiff not to work more than 12 consecutive hours at any time. When plaintiff demanded to see some written expression of the 12-hour rule, Campbell arranged to have a non-disciplinary, written advisement placed on plaintiff's reference card reiterating the rule. Also, on July 14, Foreman Miller recommended that plaintiff receive a 7-day disciplinary suspension for violating his instruction not to remove the time card without permission.

 Before the 7-day suspension was made final, however, several additional incidents transpired between plaintiff and Foreman Miller. On July 16, while Miller was securing forms necessary to excuse plaintiff from Registry to the medical unit of the Post Office, plaintiff spoke to him in an abusive manner and, in the presence of others, repeatedly called Foreman Miller incompetent. In response, Miller gave plaintiff a disciplinary counseling. Again on July 23, plaintiff directed remarks to Foreman Miller that were disruptive of the workplace. Then, on July 30, plaintiff again scoffed at Foreman Miller's instructions. On that occasion, Miller had approached several Registry employees individually and directed each to proceed to another work station. Each employee complied immediately except for plaintiff who had to be instructed repeatedly and in the presence of a higher level supervisor before he complied. Thereafter, Foreman Miller delivered to plaintiff a notice of suspension for 14 instead of 7 days. The notice cited plaintiff's failure to follow official instructions on July 9 and July 30, his disruptive conduct on July 23, and also a deviation from his assigned lunch schedule on July 26, when he had returned from lunch several minutes early. Plaintiff challenged his suspension and Foreman Miller's disciplinary counseling of July 16 in two separate administrative complaints, both of which were heard and rejected by the EEOC as not premised on discrimination or reprisal. On August 15, 1978, plaintiff filed another administrative complaint charging that he was not assigned a fair proportion of armed convoy duty (an assignment he preferred) and was forced to listen to black-oriented music played on a private radio in the Registry section. Both parties have stipulated that, for the period of March through June 1978, the distribution of convoy assignments among Registry employees was as follows: Black Females Black Males White Male n2 March 4 per employee 2.2 per employee 3 April 3.6 per employee 2.2 per employee 6 May 3 per employee 2.2 per employee 1 June 3.4 per employee 1.5 per employee 3

19830302

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