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Harper v. Potter

October 5, 2006

JAMES HARPER, PLAINTIFF,
v.
JOHN E. POTTER, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, DEFENDANT.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

Plaintiff James Harper brought this suit against John E. Potter, Postmaster General, in his capacity as representative of the United States Postal Service ("USPS"), alleging a single count of retaliation in violation of Title VII, 42 U.S.C. §§ 2000e et seq. The retaliation claim arises from a 7-day suspension that was issued against Mr. Harper and that was later rescinded. USPS moves for summary judgment. Because the 7-day suspension did not involve actual time away from work or any loss of pay and because it was rescinded and expunged from Mr. Harper's personnel record, it was not "materially" adverse. Further, the suspension would not have dissuaded a reasonable employee from making or supporting a charge of discrimination. Accordingly, Mr. Harper has failed to present a prima facie case of retaliation, and USPS's motion for summary judgment will be granted.

I. FACTUAL BACKGROUND

Mr. Harper was employed as a mail processing clerk with USPS in Gaithersburg, Maryland. Pl.'s Ex. 1, Equal Employment Opportunity Office's Report of Investigation ("ROI") at 69. His supervisor was Ms. Lydia Hembry. Id. On October 4, 2002, Ms. Hembry issued a 7-day suspension against Mr. Harper. Id. at 35. The suspension stated as follows:

On October 1, 2002 at approximately 2:20 a.m., you were observed by me standing in the work area and not performing your duties. You were assigned to work on Feeder 3 at that time, and there was mail available to you. I walked over to you and instructed you to load your ledge. At approximately 3:30 a.m., I observed you sitting at the desk filling out a form 1767 [Report of Hazard, Unsafe Condition or Practice]. I instructed you again to go to your assignment and load the mail. You state to me that you were filling out a 1767 form. Again, I emphasized to you the need for you to go to work. I asked you whether or not there was an immediate hazard or safety concern in the area in which you were assigned (Feeder 3) and you replied "No." You advised me that you would go to your assignment but would note on the 1767 that I had not allowed you time to fill it out. You [sic] continued disregard of official instructions to be gainfully employed is unacceptable and will not be tolerated.

In addition, the following elements of your past record have been considered in arriving at this decision: 07-26-02 You were issued a Letter of Warning for Failure to Follow Official Instructions.*fn1

Id.

A suspension like the one issued in this case is part of the USPS's progressive discipline policy. Under the terms of the Collective Bargaining Agreement between USPS and the American Postal Workers Union, AFL-CIO, employee discipline starts with an official discussion and progresses to a letter of warning, a suspension of less than fourteen days, a suspension of more than fourteen days, and finally, discharge. Def.'s Mem. at 7; Def.'s Sept. 29, 2006, Notice of Filing, Ex. 1, Collective Bargaining Agreement ("CBA"), Art. 16.1-16.5. With regard to suspensions of less than fourteen days, the CBA provides:

[T]he employee against whom disciplinary action is sought to be initiated shall be served with a written notice of the charges against the employee and shall be further informed that he/she will be suspended after ten (10) calendar days during which ten-day period the employee shall remain on the job or on the clock (in pay status) at the option of the Employer. However, if a timely grievance is initiated, the effective date of the suspension will be delayed until disposition of the grievance, either by settlement or an arbitrator's final and binding decision. The employee shall remain on the job or on the clock (in pay status) at the option of the Employer.

CBA, Art. 16.4. In other words, for a 7-day suspension like the one at issue here, the employee may remain on the job and in pay status if USPS so chooses. Here, USPS did not reduce Mr. Harper's pay nor did it require Mr. Harper to take time off.*fn2

A record of discipline ordinarily remains in an employee's personnel file for two years and may serve as a justification for further discipline if the employee engages in further misconduct. The CBA provides:

The records of a disciplinary action against an employee shall not be considered in any subsequent disciplinary action if there has been no disciplinary action initiated against the employee for a period of two years.

Upon the employee's written request, any disciplinary notice or decision letter will be removed from the employee's official personnel folder after two years if there has been no disciplinary action initiated against the employee in that two year period.

Id., Art. 16.10. In this case, Mr. Harper grieved the 7-day suspension through the union, and it was rescinded in a grievance ...


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