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DAVIS v. POTTER

February 5, 2004.

ARTHUR L. DAVIS, Plaintiff
v.
JOHN E. POTTER, Postmaster General, United States Postal Service, Defendant



The opinion of the court was delivered by: AMY J. ST. EVE, District Judge Page 2

MEMORANDUM OPINION AND ORDER

On June 23, 2003, plaintiff Arthur L. Davis Jr. ("Davis") filed a pro se complaint against Defendant John E. Potter, Postmaster General, United States Postal Service ("Postal Service"), for employment discrimination under Title VII of the 1964 Civil Rights Act*fn1, alleging that the Postal Service unlawfully terminated his employment based on his age, color, and race. Defendant seeks to dismiss Plaintiffs complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. For the reasons stated herein, Defendant's motion is granted.

BACKGROUND

  Davis was employed by the Postal Service as a full-time Letter Carrier at the Loop Post Office in Chicago ("post office"). (R-1-1, Compl. Attach, at 5.) On December 22, 2000, the Postal Service attempted to give Davis a letter of suspension stemming from events occurring on Page 3 December 21, 2000.*fn2 (R. 14-1, Def.'s Mem. Supp. Mot. Dismiss Ex. F at 2.) Because Davis's union steward was not present, Davis refused to accept the letter of suspension. (Id.)

  A. December 28, 2000

  On December 28, 2000, Davis reported to work at 10:00 a.m. and informed his supervisor his assistant superintendent, and his superintendent that he needed to attend an Equal Employment Opportunity ("EEO") pre-hearing at his representative's office in a suburb of Chicago at 3:00 p.m. (R. 1-1, Compl. Br. at 4.) Davis's assistant superintendent telephoned Davis's representative to confirm the time and location of the pre-hearing. (Id.) Davis's superintendent then gave him his route and told him that he could attend the EEO pre-hearing. (Id.) The superintendent asked Davis to step into her office, and with his union steward present, she gave Davis the seven-day suspension that the Postal Service had attempted to give him on December 22. (Id.)

  Davis left the station and began his delivery at about 11:45 a.m., returning his delivery truck to the Postal Service central garage — rather than the post office — at approximately 2:00 p.m. (Id.) Davis, who claims that he was never instructed to report back to his assistant superintendent prior to departing for his pre-hearing, locked his delivery truck and proceeded to his pre-hearing without checking in. (Id.) At approximately 4:00 p.m., Davis's assistant superintendent contacted Davis at his representative's office inquiring as to the whereabouts of the keys to Davis's delivery truck, (Id.) He also asked when Davis would return to the post office. (Id. at 5.)

  Upon returning to the post office at approximately 4:45 p.m., Davis observed his assistant Page 4 superintendent taking pictures of the undelivered mail in Davis's truck. (Id.) Davis alleges that he would have had sufficient time to complete his deliveries between the time of his return and the conclusion of his shift at 6:30 p.m. (Id.)

  Davis alleges that on January 17, 2001 he received a letter dated January 12, 2001 placing him on administrative leave effective January 16, 2001. (Id.) Davis contends that he previously had been informed orally that he was on administrative leave, effective January 9, 2001, for his actions on December 28, 2001, including parking his truck in the wrong place, failing to follow instructions, and keeping the keys to his truck. (Id.)

  B. Notice of Removal and MSPB Appeal

  On January 19, 2001, Davis received a proposed notice of removal for "Failure to Follow Instructions, Unauthorized Delay of Mail, [and] Unauthorized Deviation" stemming from the events of December 28. (Id. at 6.) A Letter of Decision dated February 16, 2001 removed Davis from the Postal Service. (R. 14-1, Def.'s Mem. Supp. Mot. Dismiss Ex. B at 2.)

  Davis appealed his removal from the Postal Service to the Merit Systems Protection Board ("MSPB") on March 7, 2001, raising affirmative defenses including disparate treatment and "[v]iolation of . . . the EEO process and Title VII. . . ." (R. 14-1, Def.'s Mem. Supp. Mot. Dismiss Ex. C at 1-2.) The MSPB appeal also stated that Davis received the proposed notice of removal "because he had to go to an EEOC pre hearing," (Id. at 5.) The MSPB appeal stated that Davis had "not filed a complaint with [the] EEOC in connection with" the matter appealed. (Id. at 3.)

  C. The EEO Complaint

  On March 8, 2001, Davis filed an EEO Complaint of Discrimination with the Postal Service. (R. 14-1, Def.'s Mem. Supp. Mot. Dismiss Ex. D at 1.) The complaint alleged that Davis received the December 28, 2001 suspension in retaliation for prior EEO activity. (Id.) In the complaint, Davis discussed the events of December 22 and December 28, as well as the fact that Davis was placed on administrative leave. (Id.) Davis did not, however, mention his removal in the EEO complaint. (Id.) When completing the complaint forms, Davis checked the Page 5 box that indicated that he had not filed an MSPB appeal on the issues raised in the complaint. (Id. at 2.)

  On April 4, 2001, Davis provided the EEO with information challenging his removal from the Postal Service and requested that his March 8, 2001 complaint be amended to include the removal claim, (R. 19-1, Def.'s Reply Supp. Mot. Dismiss Ex. A at 1.) At this time, he indicated that he had filed an MSPB appeal on this issue, ...


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