The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
The United States Postal Service, the defendant in this pro se lawsuit, has moved to vacate the order of default the Court entered, on its own motion, on December 17, 2008. The Court denies the motion without prejudice. The Court will entertain a prompt renewed motion to vacate if defendant can meet certain conditions designed to eliminate the prejudice that plaintiff Ann Flowers will experience from having to litigate the case on the merits and to avoid recurrence of the events that led to the entry of default in the first place.
Ms. Flowers filed a pro se lawsuit against the US Postal Service, her former employer. In 1992, she suffered an on-the-job injury that prevented her from working. She made a worker's compensation claim, which was approved. Eventually she was cleared to return to work, and she requested reinstatement. In 1996, the Postal Service offered her a full time job conditioned on meeting certain requirements. She rejected the offer and filed an internal equal employment opportunity complaint. The Postal Service rejected her complaint. Ms. Flowers continued to receive worker's compensation benefits through the end of 2002. Her doctor again cleared her to return to work in August 2003. She requested reinstatement, but the Postal Service denied her application. Ms. Flowers challenged this decision on equal employment and other grounds, but her challenge failed.
In May 2007, Ms. Flowers learned that the Postal Service had hired male employees to fill various maintenance vacancies. She alleges that although a Postal Service personnel manager had told her she would get the next available vacancy, the agency did not contact her when the maintenance positions became open. Ms. Flowers filed a new internal equal employment complaint. The Postal Service rejected the complaint, concluding that it raised claims identical to those Flowers had asserted unsuccessfully in 2003. Ms. Flowers appealed to the Equal Employment Opportunity Commission, which upheld the Postal Service's decision. She then filed this suit in January 2008, alleging retaliation for her earlier complaints, as well as discrimination based on age, disability, race, and gender.
The Court granted Ms. Flowers leave to proceed in forma pauperis and directed the Marshal to serve the defendant with summons. The Postal Service was served in March 2008. On May 19, 2008, an Assistant United States Attorney (AUSA) filed a motion for extension of time to respond to the complaint. The Court granted the motion by an order dated May 22, 2008, giving the Postal Service until June 18 to respond and setting a status hearing for July 1, 2008. The Postal Service responded to the complaint on the date the Court had set, filing a motion to dismiss in which it asserted the same preclusion argument the Postal Service had relied upon in rejecting Ms. Flower's internal complaint. Both the AUSA and Ms. Flowers participated in the status hearing on July 1. The Court entered an order setting a briefing schedule on the motion to dismiss. Ms. Flowers responded to the motion in timely fashion, and the AUSA filed a timely reply.
On November 8, 2008, the Court entered an order denying the Postal Service's motion to dismiss. The Court determined that it was clear from Ms. Flowers' complaint that she was challenging only the Postal Service's failure to hire her in 2007, not the failure to reinstate her in 2003 that had been the subject of her earlier complaint. As the Court stated, "[t]hese are plainly different claims; the USPS cites no court decisions suggesting that the doctrine of claim preclusion applies in this situation." Order of Nov. 8, 2008 at 2.
In its November 8 order, the Court directed the Postal Service to answer the complaint by November 24, 2008 and set the case for a status hearing on December 4, 2008. The Postal Service did not answer the complaint as ordered. No one appeared for the December 4 status hearing -- neither the AUSA nor Ms. Flowers (either in person or by telephone). The Court entered an order that same date, which stated as follows:
Status hearing held. Plaintiff fails to appear. Both sides are ordered to appear and show cause why a sanction should not be imposed, which may include dismissal of case or entry of default. Status hearing set for 12/17/2008 at 09:30 AM.
On December 17, Ms. Flowers appeared (by telephone), but once again, no one appeared for the Postal Service. The Court entered an order stating:
Status hearing held. Defendant fails to appear. Defendant is found in default as a sanction for failing to appear. Status hearing continued to 1/8/2009 at 10:00 AM., with plaintiff by telephone. Clerk of Court is directed to send a copy of this order to Assistant U. S. Attorney Thomas Walsh.
Order of Dec. 17, 2008.*fn1 The Postal Service has now moved to vacate ...