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KNOX v. POTTER

May 4, 2004.

FRED KNOX, Plaintiff
v.
JOHN POTTER, et al., Defendants



The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS; VACATING HEARING
Before the Court is the motion to dismiss, filed initially on January 23, 2004 and refiled March 10, 2004, by defendants Postmaster General John Potter ("Postmaster General Potter"), Rich Lena ("Lena"), and Virginia Labson ("Labson"), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.*fn1 No opposition has been filed.*fn2 Having considered the papers filed in support of the motion, the Court finds the matter appropriate for decision on the papers, and hereby VACATES the May 21, 2004 hearing on the motion. For the reasons set forth below, the Court GRANTS defendants1 motion to dismiss. BACKGROUND

Plaintiff Fred Knox ("Knox") is an employee of the United States Postal Service ("USPS"), stationed at the San Mateo Information Center. In addition to the instant case, Knox has filed four previous lawsuits with respect to his employment at USPS, all of which were resolved in favor of the defendants. As defendants' current motion is based on the doctrine of res judicata, it is necessary to summarize the allegations of these prior actions in some detail.*fn3

 A. Knox I

  On March 2, 1998, Knox filed suit in the Northern District of California, Case No. 98-0796 CRB ("Knox I"), against defendants Postmaster General Marvin Runyon, USPS Manager Rich Lena ("Lena"), USPS Supervisor Bob Long ("Long"), USPS Personnel Assistant Susy Nakai ("Nakai"), USPS Supervisor Tom Nesbitt ("Nesbitt"), USPS Computer Systems Administrator Dennis Williams ("Williams"), USPS Manager Cele Gutierrez ("Gutierrez"), USPS Supervisor Roger Hisle ("Hisle"), the USPS, USPS employee Charlie Wambeke ("Wambeke"), in his capacity as a representative for American Postal Workers Union AFL-CIO Local 6669 ("the Union"), and Equal Employment Opportunity Commission ("EEOC") Administrative Law Judge Jeanne Player ("ALJ Player").*fn4 (See Knox I at 1; 7:8-14.)

  The caption of the Knox I complaint lists the following causes of action: "Discrimination in Employment; Racial; Retaliation; Unfair Labor Practices; Breach of Contract; Intentional Infliction of Emotional Distress; Negligent Infliction of Emotional Distress; Veterance Preference Denied." (See id. at 1.) The gravamen of Knox I is that the USPS and the Union discriminated against Knox on the basis of his race. (See id. at 2:2-4; 2:7-8; 2:25; 3:7-19; 9:19-23; 11:3-7;12:2-7; 12:24-26; 13:1.) Knox alleges that this discrimination occurred between May 1994 and January 23, 1998. (See Knox I form Employment Discrimination Complaint ¶ 7.)

  The Knox I complaint contains numerous factual allegations. First, Knox alleges that he was denied promotions and training on the basis of his race. (See Knox I at 2:7-25; 3:23-26; 4:1-15; 8:19-26; 9:1-17.) Knox further alleges that the defendants colluded and conspired to deny him promotions and training on the basis of his race, (see id. at 9:19-23), and violated 42 U.S.C. § 1981, 1985(2), 1986, 2000e and 29 U.S.C. § 158(b). (See id. at 9:25-27; 10:1-4.) Throughout the complaint, Knox repeatedly "claims" veterans preference, without further explanation, pursuant to "Veterance Preference Act Pub.L. 103-353, 2(a), Oct. 13, 1994, 108 Stat. 3153, 3166 Subchapter II Section § 4311. Para, (a), (b), (c), (1), § (2). And Subchapter III Section 4324(d), (1), (2)." (See id. at 8:22-24.)

  Second, Knox alleges that he was injured in a "Halon Chemical Explosion" on May 31, 1995 and thereafter filed a workers1 compensation claim. (See Knox I at 3:1-3.) Knox alleges that USPS Manager Lena was enraged by Knox's claim and called Knox a "[s]illy [n]igger." (See id. at 3:7-9.) Knox further alleges that USPS Supervisor Long and Manager Lena read Knox's workers' compensation claim aloud to his co-workers and thereby created a hosfile work environment because Knox, inter alia, was stalked at work by unidentified persons, was followed home by unidentified persons, unidentified co-workers used a machine to blow dust in his face, and his property was vandalized by unidentified persons. (See id. at 3:9-19.)

  Third, Knox alleges that following the Halon explosion, USPS Manager Gutierrez ordered Knox to attend three separate medical examinations and instructed the physicians to examine Knox's genital area. (See id. at 4:17-26; 5:1-19.) Knox then states, without further explanation, that he "charged Manager Cele Gutierrez with Sex Harassment, Retaliation, and Personal Discrimination and abusive authority." (See id. at 5:17-19.)

  Fourth, Knox alleges that he was denied higher pay while performing higher level duties than he was required to perform. (See id. at 4: 9.11; 5;26; 6:1; 8:14-17.) He also alleges that he was denied overtime work that was instead given to female employees because they had "high mortgages to pay." (See id. at 5:26; 6:1-4.)

  Fifth, Knox alleges that he was forced to work in unsafe working conditions. (See id. at 6:14-17, 19-22.)

  Sixth, Knox alleges defendants failed to investigate his disparate treatment claims (see id. at 10:19-21), that he was subjected to systematic harassment at work, (see id. at 10:23-26), and that he was retaliated against on the basis of his race and because he complained about his treatment as a black employee. (See id. at 10:23-26; 11:1-7.) Knox again alleges that these actions were in violation of 42 U.S.C. § 1981, 1985(2), 1986, 2000e and 29 U.S.C. § 158(b). (See id. at 11:18-20.)

  Seventh, Knox alleges that the Union inadequately represented him while pursuing his "employment-related grievances" because of his race. (See id at 12:2-7.) He also alleges that the Union and Wambeke "committed unfair labor practices as prohibited against by 29 U.S.C. [ § ] 158(b)." (See Knox I at 12:9-11.)

  Eighth, Knox alleges that the defendants "conspired and colluded to violate the plaintiff [sic] civil rights and to violate the federal laws breaching all covenants, expressed or implied, of good faith and fair dealing [between Knox, the USPS and the Union]." (See id. at 12:18-26; 13:1-5.)

  Ninth, Knox alleges that the defendants actions have caused him severe emotional distress and physical injury. (See id. at 13:11-26.)

  Finally, Knox alleges that ALJ Player, who presided over a trial on unspecified discrimination charges Knox filed against unspecified defendants, was "a bias [sic] judge, she denied the plaintiff subpoena records pertaining to the discrimination charges, she split the case up into 2 cases, she denied the plaintiff witnesses, she denied the plaintiff to have the union representative to testify as a witness, and . . . allowed the defendants to enter all evidence, records and witnesses in favor of the defendants." (See id. at 14:3-12.)

  Knox also makes an allegation in his form employment discrimination complaint that is not made in his complaint for damages. Knox alleges that USPS Supervisor Hisle threatened to fire him if he did not withdraw his EEOC claims. (See Knox I form Employment Discrimination Complaint at ¶ 4(d).)

  On July 1, 1998, United States District Judge Charles R. Breyer dismissed with prejudice plaintiff's claims against the EEOC and ALJ Player. (See Order Dismissing ALJ Player and the EEOC, Case No. 98-0796 CRB, at 2:25-28 and 3:1-23, filed Jul. 1, 1998.) Judge Breyer found: (1) Congress did nor create an express or implied cause of action against the EEOC by employees of third parties, (2) plaintiff alleged no facts to support his 42 U.S.C. § 1981, 1985(b) and 1986 claims, and moreover, these charges were not properly brought against the EEOC and ALJ Player, and (3) plaintiff failed to allege any facts to support his 29 U.S.C. § 158(b) claim against either the EEOC or ALJ Player. (See id.)

  After the case was reassigned to Magistrate Judge James Larson, Judge Larson dismissed the American Postal Workers Union ("National"), Local 6669 ("Local"), and Wambeke (collectively "Union defendants"). In an order dated April 19, 1999, Judge Larson found that Knox failed to exhaust his administrative remedies as to these defendants. (See Order Granting Union Defs.' Mtn. to Dismiss, Case No. 98-0796 JL, at 4:1-10, filed Apr. 19, 1999.) Judge Larson also found: (1) Knox failed to properly serve National, (2) Wambeke could not be sued individually under Title VII, (3) judgment could not be had against Wambeke as an individual for breach of the duty of fair representation, (4) Knox failed to demonstrate that the Union engaged in arbitrary, discriminatory or bad faith conduct, (5) Knox failed to establish the Union's intent to discriminate (as part of his section 1981 claim), (6) Knox failed to state a claim under section 1985(2) because he was not a party, witness, or juror to any matter pending in federal court at the time he filed the complaint, and (7) his 1986 claim therefore also failed. (See id. 4:12-28; 5; 6; 7.) Accordingly, Judge Larson dismissed these defendants both on procedural grounds and on the merits. Knox's remaining claims in the action were ultimately related to claims pending in a subsequently-filed Knox action as described below. B. Knox II

  On March 30, 1999, Knox filed a second lawsuit in the Northern District of California, Case No. 99-1527 SBA ("Knox II"). against all defendants named in Knox I. with the exception of ALJ Player, and added a new defendant, Knox's USPS co-worker Fred Alarva ("Alarva").*fn5 (See Knox II at 1.) The caption of the Knox II complaint lists the following causes of action: "Discrimination in Employment, Racial; Retaliation; Unfair Labor Practices; Assault; Battery; Interference With Contract; Intentional Infliction of Emotional Distress; Hiring Co-Workers to Harass, Retaliate and Stalk the Plaintiff." (See id.) Assault, battery, interference with contract, and hiring personnel to harass Knox were not previously asserted as causes of action in Knox I.

  The gravamen of Knox II is. again, that the USPS and the Union discriminated against Knox on the basis of his race. (See id. at 2:1-4; 6:10-12; 6:20-24; 7:9-27; 8:1-28 and 9:1-4.) Knox alleges this discrimination occurred from September 20, 1996 to May 15, 1998, a time period that overlaps in part with the ...


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