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GILMAN v. RUNYON

October 18, 1994

ROBERT GILMAN, Plaintiff,
v.
MARVIN T. RUNYON, POSTMASTER GENERAL, Defendant.


Baer, Jr.


The opinion of the court was delivered by: HAROLD BAER, JR.

HAROLD BAER, Jr., District Judge,

 Plaintiff Robert Gilman ("Gilman"), formerly employed by the United States Postal Service, alleges claims of retaliation discrimination against defendant Marvin T. Runyon, Postmaster General ("Postal Service") pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). *fn1" Gilman claims that his supervisors Earlene Toole and Rudolph Rizzuto twice suspended him and finally discharged him for filing employment discrimination complaints against them. Defendant claims the supervisors suspended Gilman for failing to follow orders and for assaulting one employee and finally discharged him for assaulting another employee. The matter was tried before me without a jury on September 26, 27 and 28, 1994.

 While I find that in light of the charged misconduct, the Postal Service discipline was severe, the law precludes me from second guessing the appropriate level of discipline. The law allows the Postal Service to discharge an employee provided it does not do so for a discriminatory reason. The single question then is whether his supervisors meted out the discipline because of Gilman's protected conduct, i.e., the complaints he filed alleging discrimination. I find they did not. Accordingly, I must dismiss Gilman's consolidated complaints.

 Supervisors Rizzuto and Toole took three disciplinary actions against Gilman based on his misconduct: a seven-day suspension, a fourteen-day suspension, and a removal. Gilman claims the supervisors impermissibly disciplined him to retaliate for his Equal Employment Opportunity ("EEO") complaints and union grievances. Gilman filed many EEO complaints against his supervisors including six against Rizzuto between December 30, 1985 and July 21, 1988, and four against Toole between December 14, 1983 and July 21, 1988 (Amended Agreed Findings of Fact 16, 50 ("AAFF")). The EEO found no discrimination in any of Gilman's complaints. (AAFF 14, 17, 51). Gilman also filed numerous union grievances against Rizzuto and Toole, challenging employment conditions. (AAFF 18, 18a). Toole knew of these grievances. (AAFF 49).

 The record abounds with evidence of Gilman's job related difficulties. For example, Gilman would lock fellow employees out of their work area and refuse to open the door. (Trial Transcript "Tr." 204-205). Several times Gilman took a phone away from a coworker or supervisor while they were using it. (Tr. 210). A dozen of Gilman's co-workers complained to their supervisor in writing that Gilman caused "harassment and tension" and made their jobs "very unpleasant." (Joint Exhibit "JX" 11; Tr. 198). Supervisor Rizzuto, a Postmaster with 24 years experience, thought Gilman "tended to get people upset," was "unable to handle routine problems," and was a "pain in the neck" who "gets under people's skin." (Tr. 109, 112, 117, 152). Supervisor Toole who had 28 years of experience with the Postal Service thought Gilman "frightened" people, and said that if she did not discipline him for the first assault something "more traumatic will" happen. (Tr. 201, 212, 263).

 1. Seven Day Suspension for Disobedience

 Rizzuto testified credibly that he suspended Gilman on August 24, 1987 for seven days because he determined that Gilman twice refused to obey several orders of his supervisors. (Tr. 120, 121, 129, 130; JX 21). Rizzuto spoke to Gilman and the three supervisors whose orders Gilman disobeyed. Rizzuto based the suspension on Gilman's repeated refusal to comply with direct orders, delaying the mail, failing to conscientiously discharge duties, and being discourteous. (Tr. 129, 130, 131). Gilman admits that he refused to obey direct orders, but he claims his refusals were justified. (Tr. 36, 55-56, 59-60; Plaintiff's Proposed Findings "PPF" 21, 22; JX 34). Defendant proved that postal policy requires that employees obey orders such as these even if they disagree with them. Thereafter postal policy provides, they may submit objections to the orders through grievance channels. (JX 3, § 666.51 at 384; Tr. 133 (Rizzuto); Tr. 66 (Gilman)). Gilman failed to prove by a preponderance of the evidence that Rizzuto suspended him in retaliation for his complaints.

 2. Fourteen Day Suspension for the Elevator Incident

 Toole testified credibly that she suspended Gilman on December 7, 1987 for fourteen days for assaulting Alice Woods, whom Gilman allegedly shoved while exiting an elevator. (Tr. 189-195). Toole obtained factual statements from a supervisor on the scene, Gilman, Woods, and Postal Inspectors. (Tr. 190-192). Rizzuto concurred in the suspension. (JX 22). Gilman testified that he had not shoved Woods, but that she had run into him. (Tr. 38; PPF 28-33 ). In my view Toole and Rizzuto based Gilman's suspension on credible evidence that plaintiff was to blame for the collision. Gilman again did not prove by a preponderance that Toole and Rizzuto suspended him in retaliation for his complaints.

 3. Termination for the Desk Incident

 Toole terminated Gilman's employment as of June 4, 1988, after she determined that Gilman assaulted and injured Florence Borick by shoving his desk into Borick's chair, pinning her between her chair and desk. (JX 18, 19, 20, 23, 25). Toole interviewed Gilman, Borick, and various eyewitnesses and obtained their written statements. (Tr. 242-246; JX 25). Gilman claims that Borick caused the desk shoving incident. (JX 25). Defendant clearly demonstrated that Toole relied on credible evidence that Gilman caused the desk incident as well as his prior offenses ...


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