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Chase v. United States Postal Service

United States District Court, D. Massachusetts

March 1, 2016

ROBERT CHASE, Plaintiff,

          For Robert Chase, Plaintiff: Lori A Jodoin, LEAD ATTORNEY, Rodgers, Powers & Schwartz LLP, Boston, MA.

         For United States Postal Service, Michael King, United States of America, As sole defendant on Counts III, IV, and V., Defendants: Christine J. Wichers, LEAD ATTORNEY, United States Attorney's Office MA, Boston, MA.



         Plaintiff Robert Chase brought this action against his former employer, the United States Postal Service (" USPS" ), and his direct supervisor, Michael King, alleging violations of his rights arising from the termination of his employment by USPS.

         By Memorandum and Order dated November 4, 2013, I granted summary judgment for the defendants on all but one count of the Complaint, which alleges that the defendants unlawfully terminated Mr. Chase in retaliation for taking leave protected under the Family and Medical Leave Act (" FMLA" ), 29 U.S.C. § 2611 et seq. See Chase v. United States Postal Service, 2013 WL 5948373 (D. Mass. Nov. 4, 2013). After a non-jury trial on the remaining count, pursuant to Fed.R.Civ.P. 52, I provide -- on the basis of evidence recited in Section I.A. -- the findings of fact in Section I.B., where I make credibility determinations and otherwise resolve factual disputes as necessary. In Section II, I provide Conclusions of Law in support of my determination to order judgment for the defendants.

         I. FACTS

         A. Evidence at Trial

         Robert Chase worked for the USPS as a letter carrier from 1997 until his termination on September 30, 2011. At all times during the course of his employment with the USPS, Chase's work performance was satisfactory or better. He was punctual, reliable and attentive to his job, and he was never given a negative performance review or subject to any discipline or corrective action.

         From February 2005 until the time of his termination, Chase was supervised by the defendant Michael King, who served as manager of the Brookline, Massachusetts Post Office where Chase worked. Although perturbed by Chase's leave taking, King did not have any issues with Chase's performance as a letter carrier, and never had occasion to discipline Chase prior to the events that gave rise to this lawsuit.

         1. Chase's Injury

         On July 21, 2010, Chase was involved in a serious motor vehicle accident while on duty. Chase was parked on the side of the road during his lunch break when a car driven by an elderly woman who had fallen asleep at the wheel struck his vehicle. King responded to the scene and observed the severity of the accident. Chase was transported to the hospital and was subsequently diagnosed with a shoulder injury that included damage to his rotator cuff. King wrote in an accident report he submitted to the Boston District Safety Office: " Carrier initially claimed to be ok. Now claims injury to shoulder."

         Chase was unable to return to work following the accident. Anticipating that Chase would submit a workers' compensation claim, King pressured Joseph DeMambro, the Brookline Post Office's union steward for the National Association of Letter Carriers, to encourage Chase not to file such a claim so that the injury would not be reflected in the injury statistics for the Brookline Branch. Such statistics may have had some impact on perception of King's performance as a manager.

         King felt comfortable making such a request because he believed Chase would be able to make a recovery from the driver who had caused the accident, and therefore would not be left without recourse. Chase nevertheless filed a workers' compensation claim, which was approved. In accordance with USPS policy, Chase was paid his full salary by the USPS for the first 45 days of his injury leave, after which he received workers' compensation benefits amounting to two-thirds of his salary, tax-free, plus health insurance, paid by the U.S. Department of Labor's Office of Workers' Compensation programs.

         Chase also applied for leave under the FMLA, to run concurrently with his workers' compensation leave. FMLA leave at the USPS is unpaid unless the employee is otherwise entitled to pay, for example because he or she is using accrued sick leave or receiving workers' compensation benefits. Chase received a notice approving his request for FMLA leave retroactive to July 21, 2010, the date of his injury, and informing him that FMLA protection was limited to 12 weeks in each calendar year. Because Chase never returned to work, this meant that Chase's 2010 FMLA leave was exhausted as of October 12, 2010.

         At the USPS, FMLA leave requests are processed through a central office located in North Carolina. The FMLA approval notice indicates that it was copied to Chase's " manager" and " supervisor." King testified that he did not recall ever seeing the notice and was unaware Chase had bee on FMLA leave until the commencement of this litigation. King testified that he could not recall whether he had received similar notices in the past in connection with other employees' FMLA leave requests. According to King, Chase's leave status was designated as either " IOD" (injured on duty) or " OWCP" (out on worker's compensation) in the computer program used to track employee time records, which indicated to him that Chase was out on paid workers' compensation leave. King acknowledged that a related computer program would have indicated Chase's FMLA leave status, but said that he never checked that program because he had no reason to believe Chase was using unpaid FMLA leave at the same time he was on paid workers' compensation leave. King could not recall another instance of an employee taking FMLA leave for an on-the-job injury that was otherwise covered by workers' compensation, and believed that in practice, employees would use FMLA leave only as a last resort, for example, when they had exhausted all their paid sick leave or had to care for an ill family member.

         As a result of Chase's injury leave, the Brookline branch had to hire a temporary replacement letter carrier to cover his route.

         2. Chase's Arrest

         On September 18, 2010, while Chase was still on injured leave, he and his brother Michael, who was also a Brookline letter carrier, were arrested at Michael's apartment in Brookline. The arrest occurred when police officers investigating an earlier report of domestic violence between Michael and his girlfriend visited Michael's apartment and observed in plain view a baggie containing what they believed to be cocaine. According to the police report, Chase, who was visiting Michael's apartment, grabbed the baggie off the table, and when ordered by police to drop it, indicated that it belonged to Michael. Upon executing a search warrant for Michael's apartment, police discovered more drugs and evidence of drug dealing. Chase was charged with possession of cocaine with intent to distribute, in violation of Mass. Gen. Laws ch. 94C, § 32A(a), and conspiracy to violate the drug laws, in violation of Mass. Gen. Laws ch. 94C, § 40. Michael was charged separately.

         A few days later, King learned from employees at the Brookline Post Office that Chase and his brother had been arrested on drug charges. Someone also left a copy of a Brookline Tab article reporting the arrest in King's office. The original article did not identify the Chase brothers as Brookline letter carriers, but the Brookline Tab later received an anonymous tip that the brothers were letter carriers, which it confirmed with USPS Media Relations. The article was then updated online to reflect that the brothers were Brookline letter carriers. King testified that after the updated version of the article was published, he received a call from a customer asking whether her mail was safe.

         King contacted Jeffrey Powers of the USPS Office of the Inspector General (" OIG" ) to request that he obtain a copy of the Chase brothers' arrest report.[1] King also forwarded the original Brookline Tab article to Lori Bullen, his supervisor at the time, and stated " [i]t would be nice if we can proceed with something." Bullen forwarded King's email to Connie Marvin in Labor Relations, informing her that not only was Chase arrested, but that he was " out OWCP [on worker's compensation] to boot," and that she would " like to see if we can't get removals for this."

         At about this time, William Downes replaced Lori Bullen as King's supervisor. In response to an inquiry from Downes regarding the Chase brothers' duty status, King stated " Michael is on an off-duty. Bobby [Chase] is out IOD [Injured On-Duty] and the OIG is looking into his status."

         King testified that after reading the arrest report and the Brookline Tab article, he was concerned about the seriousness of the crimes with which the Chase brothers were charged and the resulting negative publicity to the Brookline Post Office. He decided to place Michael Chase on emergency off-duty status, but took no similar action with respect to Robert Chase because Chase was on injured leave and therefore was already off-duty. King testified that if Chase had not been on injured leave, he would have placed him on emergency off-duty status as well. Because Chase was never placed on emergency off-duty status, however, he was permitted to enter the Brookline Post Office while Michael was not.

         3. Post-Arrest, Pre-Termination Period

         In the weeks and months following Chase's arrest, King periodically inquired of Jeff Powers regarding the status of the Chase brothers' criminal cases, which he learned were repeatedly continued. At the same time, King was in somewhat regular contact with Chase regarding both his arrest and the status of his injury. Shortly after the arrest, Chase met with King to discuss what happened. Chase told King that he was not a drug user or dealer and that the charges against him were groundless and would be dismissed. By Chase's account, he was simply " in the wrong place at the wrong time." Chase perceived that King accepted his version of events and was satisfied that Chase was not a drug user or dealer and that the charges would be dismissed.

         Chase testified that in conversations that followed, King expressed concern not with Chase's arrest or criminal case, but with his extended injury leave. Chase testified that King exerted pressure on him to get medically cleared to return to work, telling Chase he was " four guys down" and was " getting killed by injuries." Chase alleged that during one such conversation, King threatened to " sic Jeff Powers" of the OIG on him if he did not get himself medically cleared to return to work, suggesting that Chase was exaggerating the extent of his injury and thereby committing fraud. Chase and King stopped communicating after a December 2010 phone call in which King told Chase to " go fuck yourself" when Chase requested his help with an issue related to his medical leave. The issue was that Chase's physical therapist had denied him services because he was not being paid by the Postal Service in a timely fashion. Before approaching King with the issue, Chase had sought the assistance of a USPS Human Resources representative to no avail.

         4. Termination

         By January of 2011, King still had not taken any disciplinary action with respect to either Chase or his brother stemming from their September 18, 2010 arrests. In a January 12, 2011 email to King, Andrew Cullen of USPS Labor Relations expressed incredulity that no action had been taken in the nearly four months since the arrest of the Chase brothers. Although Chase remained on injured leave at that time, Michael was being kept on emergency off-duty status. Cullen did not recommend that any particular discipline be imposed, but simply indicated to King that he needed to move forward with the Chase brothers' cases in order that any discipline he might impose would be considered " prompt" under the terms of the applicable collective bargaining agreement, which provided that " [d]isciplinary actions should be taken as promptly as possible after the offense has been committed."

         As a consequence, by letter dated January 13, 2011, King asked Chase to participate in a Pre-Disciplinary Interview (" PDI" ) scheduled for January 18, 2011 " in regard to your arrest concerning drug related activities." The purpose of a PDI, which is the first step in the formal disciplinary process, is to determine the facts concerning a particular incident. It is sometimes referred to by the USPS as an employee's " day in court."

         Chase's PDI occurred over the telephone, with King, Chase and DeMambro participating. King asked several questions of Mr. Chase regarding the circumstances surrounding his arrest. Chase declined to answer any questions, citing the advice of his criminal defense counsel. King was not pleased, and told Chase something to the effect of " you're really not helping yourself by responding this way."

         Purportedly based on Chase's failure to answer any questions at his PDI, King concluded that his " hands were tied" and that he had no choice but to initiate Chase's removal from the Postal Service even though his criminal case had not yet been resolved and Chase had previously professed his innocence to King. At trial before me, King testified that it did not matter that Chase had not yet been convicted of anything, because the fact of his arrest, coupled with the fact that he refused to admit any wrongdoing, was sufficient in his view to justify Chase's removal. King asked his new supervisor, William Downes, for approval to remove Chase for unacceptable conduct. Downes gave his approval on January 27, 2011, and on January 28, 2011, King asked Labor Relations to prepare a notice of removal for " Failure to Perform Duties in a Satisfactory Manner."

         The removal notice, which was dated February 1, 2011 and signed by King, informed Chase that he was being removed for " Failure to Perform Your Duties in a Satisfactory Manner," specifically citing Chase's arrest and refusal to answer questions during his PDI. The notice stated, " [y]our actions in this matter are considered to be very serious," and cited two specific policies in the USPS Employee Labor Relations Manual (" ELM" ): Section 665.25 (Illegal Drug Sale, Use, or Possession)) and Section 665.16 (Behavior and Personal Habits).[2] The notice explained that Mr. Chase would be removed on March 3, 2011, or later if his union filed a grievance on his behalf.

         Through his union, Chase unsuccessfully grieved his termination. During the grievance process, Chase's union informed him that it had brokered a deal with USPS Labor Relations whereby Chase could accept a 14-day suspension in lieu of removal if his brother Michael -- who was also in the process of grieving a removal -- were to resign. Chase declined to pressure his brother to resign in order to save his own ...

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