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MESSNER v. USPS

October 31, 1989

THEODORE A. MESSNER, Plaintiff,
v.
UNITED STATES POSTAL SERVICE, UNITED STATES POST OFFICE, MORTON GROVE, ILLINOIS, Defendants


Marvin E. Aspen, United States District Judge.


The opinion of the court was delivered by: ASPEN

MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE

 Plaintiff Theodore Messner filed this action against the United States Postal Service and the United States Post Office of Morton Grove, Illinois ("Post Office"). Plaintiff seeks recovery for employment discrimination and for various alleged violations of his constitutional rights. The Post Office has filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) for lack of subject matter jurisdiction and Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons given below, we grant the defendants' motion.

 Background

 Theodore Messner was a window clerk at the post office in Morton Grove, Illinois. His primary duty was selling stamps to the public. On June 16, 1988, Messner was issued a notice of removal for failing to account for postal funds.

 Messner was originally investigated after Postal Inspectors discovered a $ 2,500 deficit in his cash drawer. During the course of the investigation, Messner admitted to misappropriating postal funds. Specifically, he admitted to "borrowing" $ 10 from his cash drawer and taking money for coffee on several occasions. As a result of his inability to account for the deficit in his accountability and his admission to pilfering postal funds, the Post Office decided to discharge Messner.

 Following receipt of the removal notice, Messner filed a "step one" grievance, pursuant to the procedures established in his collective bargaining agreement. On June 30, 1988, this grievance was denied, and Messner's discharge was upheld.

 The American Postal Workers Union appealed Messner's grievance to "step two" of the grievance procedure. On July 14, 1988, the postmaster of the Morton Grove post office denied this appeal. Messner resigned his position on July 21 and declined to appeal his grievance to the next level.

 On March 20, 1989, Messner filed a request for reinstatement with the Morton Grove postmaster. This request was denied on March 25, 1989.

 Messner filed this suit on May 3, 1989. He alleges the discharge and decision to deny reinstatement were based on age and sex discrimination. In addition to the Title VII claims, he also alleges violations of 42 U.S.C. §§ 1981 and 1985, the First and Fourteenth Amendments of the Constitution, the due process clause and the equal protection clause.

 Discussion

 The Post Office launches a three-pronged attack on Messner's complaint First, the Post Office asserts that its grievance procedure does not violate the due process clause. Second, it argues that Messner's failure to pursue his grievance mandates dismissal of his constitutional claims and §§ 1981 and 1985 claims. Finally, the Post Office argues that Messner's employment discrimination claims should be dismissed because he has failed to exhaust his administrative remedies.

 The Seventh Circuit has found that the postal service grievance procedure satisfies due process requirements. In Winston v. United States Postal Service, 585 F.2d 198 (7th Cir. 1978), the plaintiff attempted to argue that the grievance procedure violated due process. The Seventh Circuit determined that the procedure adequately safeguarded the rights of postal employees; "we hold that the grievance procedures adopted for non-preference-eligible postal employees by USPS and the Union do not violate the due process clause of the Fifth Amendment." Id. at 210. See also Ellis v. United States Postal Service, 784 F.2d 835, 840 (7th Cir. 1986). Given this controlling authority, we reject Messner's claim that his due process rights were violated.

 The Post Office argues that Messner's constitutional tort and §§ 1981 and 1985 claims should be dismissed because he failed to pursue his remedies under the postal service grievance procedure. In support of this argument, the Post Office cites a number of cases in which courts have refused to allow ...


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