Let me try again to post legal cases that may be interesting to readers. This case is similar to the one where an employee was called “a terrorist” and face criminal prosecution after filing an OSHA complaint. But in this case the 37-year employee was threatened with criminal prosecution after filing an EEO complaint. Since another postal website read my article and found the case there is no need to withhold the postmaster’s name.

Marvin Green, a former Level 22 postmaster in Englewood, CO, claimed that the U.S. Postal Service retaliated against him after making employment-discrimination claims. He was investigated, threatened with criminal prosecution, and put on unpaid leave. Shortly after being put on leave, he signed a settlement agreement with the Postal Service that provided him paid leave for three and a half months, after which he could choose either to retire or to work in a position that paid much less and was about 300 miles away and making about $40,000 less than his current salary. Ultimately, he decided to retire effective March 31,2010. He then filed a another EEO complaint against Patrick Donahoe, the Postmaster General, in the United States District Court, alleging five retaliatory acts in violation of Title VII of the Civil Rights Act of 1964, (1) a letter notifying him to attend an investigative interview; (2) the investigative interview; (3) a threat of criminal charges against him; (4) his constructive discharge; and (5) his placement on unpaid leave (also known as emergency placement).

The district court dismissed the first three claims for failure to exhaust administrative remedies. On the two remaining claims it granted summary judgment for USPS, ruling that the constructive-discharge claim was untimely and that emergency placement was not a materially adverse action. The case was appealed to the circuit court.

The circuit court affirmed the district court’s judgment except for the emergency-placement claim. The circuit court agreed with Marvin Greene that the emergency placement was a materially adverse action (being put on unpaid leave would dissuade a reasonable employee from engaging in protected activity), and remanded the claim for further proceedings to district court.

Green, who describes himself as a black American, began working for the Postal Service in 1973. He was a manager for 25 years, including 14 years (From 2002 until his retirement in 2010) as a postmaster. Prior to these events, he had no disciplinary actions in his permanent file.

In early 2008 Green applied for a Level 24 postmaster position in Boulder, CO. with a salary of $102,111, but his supervisor selected a Hispanic instead. In August 2008, Doe filed a formal charge with the Postal Service’s Equal Employment Opportunity (EEO) Office, alleging that he had been denied a promotion because of his race. That November, after the EEO Office had completed its investigation, Green requested a hearing before the Equal Employment Opportunity Commission (EEOC). The matter was settled.

In November 2009, Green received a letter at his home from the Postal Service’s Manager of Labor Relations for his district. The letter instructed Green “to appear for an investigative interview regarding allegations of non-compliance in the grievance procedure.” The letter provides no specifics, but USPS claims that  Green was derelict in his handling of employee grievances between April and December of 2009, resulting in multiple adverse decisions that required the Postal Service to pay damages and penalties to grievants. Green asserts that he and his facility managers had contacted the appropriate person for assistance with the grievances but that the person would not help.

The Manager of Labor Relations and her supervisor, the Manager of Human Resources, conducted the investigative interview on December 11, 2009. Green was represented by NAPUS. During the interview the Manager of Human Resources asked  Green about the processing of grievances, about allegations that he had intentionally delayed the mail by failing to timely sign and return receipts for certified letters related to the grievances, and about allegations that he had sexually harassed a female employee.

When the interview ended, two agents from the USPS OIG arrived. The Manager of Human Resources instructed  Green to meet with them. The OIG had initiated its own investigation into delay of the mail, which can be a federal crime.

The Managers reappeared when the OIG interview ended. They gave  Green a letter informing him that under the Postal Service’s emergency-placement policy he was “placed in off-duty status immediately” because of “disruption of day-to-day postal operations.” It stated that under the policy “the employee is returned to duty status when the cause for nonpay status ceases.” The Manager of Human Resources ordered  Green to surrender his Postal Service identification and cell phone and not to return to the post office.

Unknown to Green , the OIG agents had concluded at the end of the interview that Green had not intentionally delayed the mail. The next day, the NAPUS Representative began negotiating with Human Resources Manager to resolve the matter. During negotiations the Human Resources Manager e-mailed the NAPUS Representative that the OIG was “all over” the delay-of-mail issue and that “the criminal issue could be a life changer.”

On December 16, 2009, Green signed a settlement agreement. It provided that he would immediately give up his position as postmaster and that he would use accrued annual and sick leave to receive pay until March 31, 2010, after which he could choose either to retire or to accept a position at significantly lower pay at the post office about 300 miles away in Wamsutter, Wyoming. In exchange, the Postal Service agreed that “no charges will be pursued based on the items reviewed during interviews conducted on December 11, 2009.” After  Green signed, he was paid retroactively for the three days he had been on emergency placement.

On February 9, 2010, Green submitted his retirement papers, effective March 31, 2010. On March 22 he initiated counseling. The Information for Pre-Complaint Counseling that he signed on March 31 alleged that he had been constructively discharged by being forced to retire. On April 23 he followed up with another formal charge.

The district court dismissed the first three claims for lack of subject-matter jurisdiction, ruling that Green had not exhausted his administrative remedies because he had not adequately presented those claims in his EEO charges. It later found that the Labor Relations Manager had in bad faith destroyed records of postal employees charged with misconduct similar to that alleged against Green . As a sanction, the court said that it would inform the jury that it could infer pretext from the destruction and would consider the same inference in ruling on a pending summary-judgment motion. The possible sanction was mooted, however, because in February 2013 the district court granted summary judgment for USPS on the remaining claims. It ruled that Green ‘s emergency placement was not a materially adverse employment action and that his constructive-discharge claim was time-barred because he had not contacted an EEO counselor about it within 45 days of December 16, 2009, when he signed the settlement agreement.  Green appealed the disposition of all five claims.

In granting USPS summary judgment, the district court held that Green could not prove that his emergency placement was materially adverse. The circuit court disagreed.

The circuit court affirmed the district court’s dismissal of the claims based on the investigative interview letter, the investigative interview itself, the threat of criminal charges, and the alleged constructive discharge. But they reversed the summary judgment for USPS on the emergency-placement claim, and REMANDED the case for further proceedings consistent with their opinion. The case is still ongoing.

Appeals Court decision