United States District Court, E.D. Washington
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS
SALVADOR MENDOZA, JR. UNITED STATES DISTRICT JUDGE.
Justin Harter was employed by the Postal Service during the
holiday season in 2014 as a Postal Support Employee (PSE). He
applied to be rehired as a PSE twice the following year, but
was not rehired. His employment files with the Postal Service
contain conflicting documents concerning his performance in
2014-the first, in his file at the district office, indicates
his performance was satisfactory; a second, in his local
file, indicates that he was terminated for cause and given a
do-not-rehire recommendation by his supervisor. Harter
alleges he was never informed that he was terminated for
cause, and that the poor performance evaluation was false and
fabricated as pretext for not rehiring him. He further
alleges he was not rehired because of his race and gender.
action, Harter alleges race and sex discrimination, breach of
contract, and Civil Service Reform Act (CSRA) prohibited
practices claims against Postmaster General Megan J. Brennan
(Defendant). Defendant moves to dismiss Harter's breach
of contract and prohibited practice claims. Because the
applicable provisions of the CBA do not apply to PSEs,
Defendant's motion to dismiss Harter's breach of
contract claim, is granted. However, because the Supreme
Court has made clear that the appropriate forum for review of
cases presenting both CSRA and federal antidiscrimination
claims is the district court, Defendant's motion to
dismiss Harter's prohibited practices claim is denied.
Justin Harter worked as a Postal Support Employee over the
holiday term from November 28, 2014, to December 26, 2014.
ECF No. 19 at 3. He alleges that he was not absent or late,
he had no write ups for discipline, and his work was
satisfactory during that time. ECF No. 19 at 3. He alleges
his employment was governed by a Collective Bargaining
Agreement (CBA). ECF No. 19 at 3.
end of this period, Harter's supervisor Dorian Chastain
included a “Form 50” and evaluation in
Harter's local employment records indicating that Harter
was terminated from his seasonal employment and recommending
that Harter not be rehired. ECF No. 19 at 3-4. The reasons
for this recommendation included that Harter was “late
often, ” his “attitude was poor, ” and he
“did not follow instructions.” ECF No. 19 at 3-4.
This form is not in Harter's official Postal Service
employment record. ECF No. 19 at 4. The official Form 50,
kept at the Postal Service District Office, does not reflect
any basis for termination, indicates that Harter's work
was satisfactory, and does not include a do-not-rehire
recommendation. ECF No. 19 at 4-5. Chastain later
acknowledged that he did not directly supervise Harter, that
two of Harter's three on-the-job instructors rated Harter
as average, and that he never informed Harter that he was
terminated for cause. ECF No. 19.
alleges he did not know he was terminated for cause, and so
did not initially bring a claim before the EEO or MSPB based
on the termination. ECF No. 19 at 4.
applied for rehiring on September 28, 2015. ECF No. 19 at 5.
He received a passing score on the hiring exam for the
position. ECF No. 19 at 5. On November 3, he was notified
that he was not selected for rehiring because he failed to
respond to a contact from Postal officials on October 19,
2015. ECF No. 19 at 5. Harter denies being contacted by any
Postal employee on October 19, and, instead, alleges that he
called about the status of his application that day and left
a message for an HR specialist who never returned his call.
ECF No. 19 at 5-6. He alleges that he called twice more
before November 3 and left messages. ECF No. 19 at 6.
specialist Grace Coldsnow called Harter on November 3, 2015,
and told him that he was not selected because he failed to
respond to her calls and told him that he had no recourse
except to reapply to the next job posting. ECF No. 19 at 6.
Coldsnow did not inform Harter that local records showed he
was terminated for cause in December 2014 and was a
non-rehire. ECF No. 19 at 6.
again applied for rehiring on November 5, 2015. ECF No. 19 at
7. He was interviewed on November 19 and informed on November
23 that he was not selected for the position. ECF No. 19 at
7. Postal Service documents indicate only that Harter was
“not recommended.” ECF No. 19 at 7. His hiring
exam score was higher than that of applicants who were hired.
ECF No. 19 at 7.
alleges that he was discriminated against based on his Native
American race and his gender. ECF No. 19 at 7. He alleges his
supervisors and instructors were aware that he was Native
American because of his disclosure on his application that he
attended Haskell Indian Nations University, conversations
regarding his minority status, and past employment with
tribal agencies. ECF No. 29 at 3.
filed an Equal Employment Opportunity (EEO) claim alleging
race and sex discrimination. ECF No. 19 at 7. The agency
rejected Harter's claims relating to his termination as
untimely. ECF No. 19 at 8; ECF No. 19-1. The agency rejected
his claims concerning rehiring because, despite concluding
that he made a prima facie case of sex discrimination, it
found that the management demonstrated non-discriminatory
reasons for not hiring Harter: (a) he did not respond to a
request for an interview time for the first position and (b)
the unfavorable employment evaluation by Chastain. ECF No. 19
at 8; ECF No. 19-1 at 15. Harter alleges that Chastain's
evaluation was fabricated, and that, had he known he was
terminated for cause in December 2014, he would have pursued
legal remedies at that time. ECF No. 19 at 9.
also filed an appeal with the Merit Systems Protection Board
(MSPB), which was dismissed for lack of ...