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Michael D. Billberry v. Patrick R. Donahoe

February 11, 2013

MICHAEL D. BILLBERRY PLAINTIFF,
v.
PATRICK R. DONAHOE, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, DEFENDANT.



The opinion of the court was delivered by: Hon. Manuel L. Real

FINDINGS OF FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [Fed. R. Civ. Proc. 56]

Hearing Date: January 28, 2013 Time: 10:00 a.m.

Ctrm: 8

Defendant Patrick R. Donahoe, Postmaster General of the United States Postal Service's Motion for Summary Judgment having come on for hearing on January 28, 2013, and the Court having considered the pleadings, evidence presented, and memorandum of points and authorities, the Court makes the following Findings of Fact and Conclusions of Law:

I.FINDINGS OF FACT

1. Plaintiff Michael Billberry was hired as a part-time flexible ("PTF") letter carrier with the USPS at the Los Alamitos, California post office on June 24, 1996. Billberry Deposition ("Billberry Dep."), Evidentiary Appendix*fn1 ("Evid. App.") Ex. 44, at 30:15-18.)

2. Plaintiff began working as a PTF carrier at the Bell Gardens, California, post office on July 14, 2001. (Billberry Dep., Ex. 44, at 30:24-32:21; Declaration of Kathryn J. Robinson ("Robinson Decl."), Evid. App. 5, at ¶ 10; Ex. 3.)

3. As such, Plaintiff's unit seniority date at the Bell Gardens post office was July 14, 2001. (Billberry Dep., Ex. 44, at 32:18-33:6; Robinson Decl. ¶ 11.)

4. On September 2, 2004, Plaintiff received a notice of removal for failure to follow instructions and unsatisfactory work performance. As a result of a Union grievance, Plaintiff's removal was reduced to a letter of warning. (Robinson Decl. ¶ 12b; Ex. 5; Declaration of Kerri Holmes ("Homes Decl."), Evid. App. 84, at ¶ 4b; Ex. 19.)

5. On November 12, 2004: Plaintiff received a seven day suspension for unacceptable conduct. As a result of a Union grievance, Plaintiff's suspension was reduced to a letter of warning. (Robinson Decl. ¶ 12c; Ex. 6; Holmes Decl. ¶ 4c; Ex. 20.)

6. On December 22, 2004: Plaintiff received a letter of warning for his failure to follow instructions. As a result of a Union grievance, the USPS agreed that the letter of warning would only remain active in Plaintiff's personnel file for two years. (Robinson Decl. ¶ 12d; Ex. 7; Holmes Decl. ¶ 4d; Ex. 21.)

7. On December 30, 2004: Plaintiff received a seven day suspension for his failure to follow directions. As a result of a Union grievance, Plaintiff's suspension was upheld with a finding of just cause. (Robinson Decl. ¶ 12e; Ex. 8; Holmes Decl. ¶ 4e; Ex. 22.)

8. On May 23, 2005, Plaintiff received a notice of removal for threatening his Bell Gardens Supervisor Teri Ruffin on April 12, 2005. As a result of a Union grievance and EEO contact, Plaintiff's removal was reduced to a seven day suspension. (Robinson Decl. ¶ 12g; Ex 10; Holmes Decl. ¶ 4g; Ex. 23.; Billberry Dep., Ex. 44, at 34:24-35:18; Declaration of Donald Lank ("Lank Decl."), Evid. App. 117, at ¶ 7; Exs. 28, 29.)

9. Following the alleged threatening behavior, Ms. Ruffin reported that she was uncomfortable working with Plaintiff, and the Union agreed to Plaintiff being reassigned to the Maywood, California post office as a PTF Carrier. (Billberry Dep., Ex. 44, at 34:14-36:6.)

10. On September 22, 2005, Plaintiff received a notice of removal for unacceptable conduct for failing to timely report an accident. As a result of a Union grievance, Plaintiff's removal was reduced to a seven day suspension. (Robinson Decl.

¶ 12h; Ex 11.; Holmes Decl. 4h; Ex. 25.) 11. The Maywood post office discontinued the carrier function in its facility, and Plaintiff was instructed to report to the Huntington Park, California post office as a PTF Carrier in December 2005. (Billberry Dep., Ex. 44, at 36:21-37:10; Lank Decl. ¶ 27; Ex. 42.)

Notice of Removal

12. On August 8, 2006, Plaintiff was questioned by Huntington Park managers about an incident of alleged misconduct which occurred on August 7, 2006, involving allegations of leaving USPS mail and property unattended. Plaintiff denied the allegations. (Robinson Decl. ¶ 12i; Notice of Removal, Ex. 12.)

13. On August 24, 2006, Plaintiff was interviewed by Huntington Park Officer in Charge Steve Lopez regarding the events of August 7, 2006. Plaintiff maintained his denial of the alleged misconduct. (Lopez Decl. ¶ 10; Ex. 12.)

14. Based on this interview, and the underlying information and evidence from a USPS investigation, OIC Lopez believed that the situation warranted Plaintiff's removal. (Declaration of Steve Lopez ("Lopez Decl."), Evid. App. 67, at ¶ 9.)

15. After learning that Plaintiff was still technically assigned to the Bell Gardens post office, Lopez directed Huntington Park Station Manager to contact the Bell Gardens OIC at the time, Art Santana, for a determination of the appropriate disciplinary action. (Lopez Decl. ¶ 11.)

16. OIC Santana reviewed the investigatory file from the events of August 7, 2006, and in consideration of Plaintiff's prior active disciplinary actions, believed that Plaintiff's employment should be terminated and made the decision to issue Plaintiff a notice of removal. (Declaration of Art Santana ("Santana Decl."), Evid. App. 71, at ¶¶ 8, 9.)

17. On September 20, 2006, Plaintiff was issued a Notice of Removal for "Unacceptable Conduct, Being Untruthful during an Official Postal Investigation, Unacceptable Work Performance, Failure to Secure Postal Vehicle, and Failure to Secure First Class Mail" ("Notice of Removal"). (Santana Decl. ¶ 9; Ex. 17.)

18. On October 17, 2006, a Union grievance regarding Plaintiff's September 20, 2006 notice of removal was resolved with the Union finding that "Management had established just cause for the Notice of Removal." (Holmes Decl. ¶ 4i; Ex. 26.)

19. Plaintiff's last day in pay status was October 11, 2006, and his termination was effective November 17, 2006. ...


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