United States District Court, S.D. Indiana, Indianapolis Division
KEITH W. PALMER, Plaintiff,
CHARLIE BROWN and FAYE NEVILLES, Defendants.
ENTRY ON DEFENDANTS' MOTION TO DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION FOR OPPORTUNITY TO AMEND
WILLIAM T. LAWRENCE, District Judge.
This cause is before the Court on two motions: 1) the Defendants' motion to dismiss or in the alternative for summary judgment (dkt. no. 46); and 2) the Plaintiff's motion for opportunity to amend (dkt. no. 71). The motions are fully briefed, and the Court, being duly advised, resolves them as follows.
I. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
The Court has construed the Defendants' motion as a motion for summary judgment and has considered the two attachments submitted by the Defendants. See dkt. nos. 46-1 and 46-2. Plaintiff Keith Palmer is proceeding pro se in this case and the Court notes that he was provided with the notice required by Local Rule 56-1(k). See dkt. no. 48. Palmer also filed a response to the Defendants' motion, dkt. no. 72, which was considered by the Court.
Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." In ruling on a motion for summary judgment, the admissible evidence presented by the non-moving party must be believed and all reasonable inferences must be drawn in the non-movant's favor. Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 490 (7th Cir. 2007); Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) ("We view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor."). However, "[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial." Id. Finally, the non-moving party bears the burden of specifically identifying the relevant evidence of record, and "the court is not required to scour the record in search of evidence to defeat a motion for summary judgment." Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001).
The facts that follow are those taken in the light most favorable to the Plaintiff, Keith Palmer.
Palmer was hired by the United States Postal Service ("USPS") as a temporary transitional employee letter carrier on January 1, 2011. Palmer was assigned to work at the Brightwood Post Office located in Indianapolis, Indiana. As a temporary employee, Palmer's employment was subject to a 90-day probationary period and had an expiration date of December 26, 2011.
In March 2011, another Brightwood Post Office letter carrier, Gordon Richards, attempted to conspire with Palmer to discard a large stack of paid, deliverable United States mail, specifically, newspapers. Palmer declined to participate and reported Richards' scheme via text message to the Brightwood Post Office's Branch Manager, Charlie Brown.
On April 8, 2011, a meeting was held regarding Richards' alleged scheme; present were Palmer, Richards, Brown, and Palmer's supervisor, Faye Nevilles. During the meeting, Richards denied the scheme to discard the mail. Brown then threatened Palmer saying, "[d]on't ever accuse them of anything unless you got some proof, or I will have you terminated." Dkt. No. 1 at 6. Brown then told Palmer to conduct his mail deliveries and they would talk at the end of the day.
While on his route, Palmer texted Brown and demanded that he contact a union steward, because he was threatened with an adverse employment action, and a postal inspector, to investigate Richards' alleged criminal activity, because he believed Brown had violated his civil rights and certain USPS rules. Brown did neither, but rather terminated Palmer's employment at the end of the day for unsatisfactory work performance. Over the weekend, Brown called Palmer and told him he was reconsidering his decision, but Palmer declined to return.
On May 3, 2011, Palmer contacted the USPS Office of the Inspector General ("OIG") Hotline and reported that he was terminated in retaliation for whistleblower activities. The OIG investigated Palmer's allegations but concluded that there was no evidence to support the claim that Palmer was removed from his employment in retaliation for making a protected communication. Rather, the OIG concluded that Palmer was terminated due to his unsatisfactory work performance during his 90-day probationary period.
On September 27, 2011, Palmer contacted the USPS's Equal Employment Opportunity ("EEO") Office. He completed a formal EEO Complaint of Discrimination in which he alleged that he was terminated from the USPS in violation of Title VII and the Age Discrimination in Employment Act on the basis of his age, race, and his protected communications, i.e. whistleblowing. His Complaint was dismissed on November 28, 2011, as untimely and because whistleblowing was not covered by Title VII. Palmer then filed an appeal with the Office of Federal Operations ("OFO"); on May 9, ...