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March 29, 2001


The opinion of the court was delivered by: Chesney, District Judge.


Before the Court is defendant United States Postal Service's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The matter came on regularly for hearing on January 19, 2001. Kelechi Charles Emeziem of Emeziem & Ogbu, LLP, appeared for plaintiff Walter Bateman. Alex Tse, Assistant United States Attorney, appeared for defendant United States Postal Service.

At the January 19, 2001 hearing, the Court ordered the parties to file supplemental briefs, and continued the hearing to March 16, 2001. Having considered the supplemental papers submitted, the Court deems the matter appropriate for decision without further hearing, VACATES the hearing scheduled for March 16, 2001, and rules as follows.


This action proceeds on plaintiffs First Amended Complaint ("FAC"), filed November 7, 1997. The only named defendant is the Postmaster of the United States Postal Service.

On May 6, 1998, upon motion filed by defendant, the Court dismissed all of plaintiffs causes of action, with the exception of plaintiffs federal claims of race discrimination, disability discrimination, and retaliation.

On August 7, 1998, defendant filed the instant motion for summary judgment. Plaintiff failed to file opposition. On September 3, 1998, the Court granted defendant's motion for summary judgment, finding defendant had established that the undisputed facts entitled it to judgment as a matter of law on the three remaining claims. Thereafter, judgment was entered in favor of defendant.

On November 5, 1998, plaintiff moved to set aside the order granting defendant's motion, and requested an opportunity to file an opposition brief. On February 3, 1999, the Court issued an order denying plaintiffs motion, from which plaintiff timely appealed. Upon review, the Ninth Circuit reversed and remanded with instructions to allow the opposition to be filed. On November 28, 2000, the Court set aside the order granting defendant's motion for summary judgment, vacated the judgment, and granted plaintiff the opportunity to file opposition to defendant's motion.


Plaintiff, an African-American male, was hired by defendant in 1988, and worked as a Laborer, Custodial Level 3, in the maintenance craft at the Postal Service's San Francisco Bulk Mail Facility in Richmond, California. (See Bateman Decl. at ¶ 2; Tse Decl., Ex. A. at 16-17; Connelly Decl. at ¶ 3.)

In February 1993, and then in March 1995, plaintiff had knee surgery. (See id. at ¶ 9.)*fn2 After the latter surgery, plaintiff requested accommodation by assignment to a "permanent position in the clerk craft," (see id. at ¶¶ 9, 11 and Ex. C), or, alternatively, assignment as a Maintenance Control Clerk. (See Tse Supp. Decl., Ex. A at 100:1-16.) Plaintiffs supervisor Robert Collins ("Collins") assigned plaintiff to light work duty in plaintiffs "regular maintenance custodial craft" from the date of his return to work after the March 1995 surgery to the last date of his employment with defendant. (See Collins Decl. at ¶¶ 5-9.)

On November 2, 1995, plaintiffs first-line supervisor was on leave, and as a result, Burns was acting as plaintiffs first-line supervisor. (See Burns Decl. at ¶ 4.) On November 3, 1995 plaintiff was working the "grave yard shift," 11:00 p.m. to 7:00 a.m., and at approximately 4:30 a.m., was working on a conveyer belt. (See Bateman Decl. at ¶ 14.) Later that morning, Jose Mallari ("Mallari"), a Postal Service employee, reported to Burns that plaintiff had approached Mallari and another employee, Herman Santos ("Santos"), and accused them of talking about plaintiff in Tagalog. (See Burns Decl. at ¶ 4.)*fn3 Mallari told Burns that plaintiff became hostile and began shoving Mallari, and that Mallari defended himself by pushing plaintiff back. (See id. at ¶ 5.) Mallari provided a written statement about the incident to Burns. (See id., Ex. A.)

Pursuant to the Postal Service's "zero tolerance policy," an individual initiating a physical altercation or otherwise engaging in violent behavior must be removed from the Postal Service. (See Johnson Decl. at ¶ 6.)*fn4 It is Postal Service policy that all workplace incidents involving violence are to be investigated by the first-line supervisor on duty. (See Burns Decl. at ¶ 4.) With respect to allegations of workplace violence involving Postal Service employees, the employee's first-line supervisor is charged with preparing a recommendation regarding the event in question. (See Johnson Decl. at ¶ 6.) The recommendation is thereafter forwarded up the chain of command for action. (See id.)

Pursuant to the above-described Postal Service policy, Burns initiated an investigation of the incident involving plaintiff and Mallari the day after the incident. (See Burns Decl. at ¶ 5.) At Burns' request, Mallari and Santos provided written statements, both of which corroborated Mallari's description of the altercation. (See id. at ¶ 6.) To complete the investigation, Burns needed to interview Bateman. (See id.) Burns called plaintiff into Burn's office, along with plaintiffs regular supervisor. (See id. at ¶ 7; Bateman Decl. at ¶ 18.) At that time, according to Burns, Burns read to Bateman the statement prepared by Mallari, (see Burns Decl. at ¶ 7); according to plaintiff, Burns "questioned me about Mallari." (See Bateman Decl. at ¶ 18.) Plaintiff neither admitted nor denied the incident. (See Burns Decl. at ¶ 7.) On November 15, 1995, Burns issued a Notice of Proposed Removal. (See id. at ¶ 8.) The Notice of Proposed Removal sets forth the charge, "Misconduct/Physical Altercation with Another Postal Employee while on Official Duty/Conduct Unbecoming of A Postal Officer." (See id., Ex. C.) In accordance with the Notice of Proposed Removal, Burns recommended to his superior, Ben Fukumitsu ("Fukumitsu"), that plaintiff be removed. (See id. at ¶ 8.) The recommendation was based upon the statements of the two witnesses to the incident and the fact that plaintiff neither admitted nor denied that the incident took place. (See id.) Burns was aware both at the time the incident was reported and at the time of his recommendation that, three or four years prior, plaintiff had filed an EEO complaint against Burns. (See id. at ¶ 10.) Burns declares that such knowledge did not influence his recommendation, and that Burns believed he had no choice but to recommend removal in light of defendant's zero tolerance policy. (See id.)

On November 26, 1995, Burns gave plaintiff the Notice of Proposed Removal. (See id., Ex. C.) The Notice of Proposed Removal, inter alia, informed plaintiff that he would be "removed from the Postal Service no sooner than thirty (30) days from receipt of this notice," and of his right to respond to the charge by (1) "answer[ing] this proposal within 10 calendar days from . . . receipt of this letter, either in person [to Fukumitsu] or in writing or both," and, at plaintiffs election, (2) "furnish[ing] affidavits or other written material to . . . Fukumitsu within 10 days from. . . receipt of this letter." (See id.) After receiving the Notice of Proposed Removal, plaintiff gave his immediate supervisor his badge, and Burns stated that plaintiff "may get [his] belongings and leave," which plaintiff then did. (See Bateman Decl. at ¶ 20.) Plaintiffs, last day of work was November 26, 1995. (See Collins Decl. at ¶ 3.) Plaintiff was placed on unpaid administrative leave the following day. (See id.)

After Fukumitsu received from Burns the recommendation and the statements of Mallari and Santos, Fukumitsu conducted his own investigation of the altercation. (See Fukumitsu Decl. at ¶¶ 3-4.) Specifically, he spoke to witnesses to the incident, including Santos, who Fukumitsu considered to be the most important witness as he was not involved in the actual physical altercation. (See id. at ¶ 4.) As a result of his investigation, Fukumitsu believed the Postal Service's "zero tolerance policy" required him to recommend plaintiffs removal. (See id. at ¶ 5.) Accordingly, Fukumitsu recommended to his supervisor, Johnson, that plaintiff be terminated from the Postal Service. (See id.) At the time of incident and his investigation and subsequent recommendation, Fukumitsu was unaware of plaintiffs prior EEO complaint. (See id. at ¶ 7.)

After consideration of the record, and in light of the Postal Service's "zero tolerance policy," Johnson concurred in the recommendations of Burns and Fukumitsu to remove plaintiff from the Postal Service. (See Johnson Decl. at ¶ 8.) On December 8, 1995, Johnson issued a letter of decision removing plaintiff from the Postal Service. (See id. at ¶ 7.) The removal was effective December 27, 1995. (See Collins Decl. at ¶ 3.)

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