United States District Court, D. Massachusetts
Robert Chase, Plaintiff: Lori A Jodoin, LEAD ATTORNEY,
Rodgers, Powers & Schwartz LLP, Boston, MA.
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.
P. WOODLOCK, UNITED STATES DISTRICT JUDGE.
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
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
Evidence at Trial
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
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.
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
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.
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.
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.
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.
result of Chase's injury leave, the Brookline branch had
to hire a temporary replacement letter carrier to cover his
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.
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.
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. 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."
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
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.
Post-Arrest, Pre-Termination Period
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.
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.
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."
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."
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."
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."
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). The notice
explained that Mr. Chase would be removed on March 3, 2011,
or later if his union filed a grievance on his behalf.
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 ...