Matthew Kowalski v. Postmaster General of the Unit ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 19-1984
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MATTHEW KOWALSKI,
Appellant
v.
POSTMASTER GENERAL OF THE UNITED STATES
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 2-16-cv-01707)
Magistrate Judge: Honorable Cynthia Reed Eddy
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Submitted under Third Circuit LAR 34.1(a)
January 16, 2020
Before: HARDIMAN, PORTER, and PHIPPS, Circuit Judges.
(Filed: April 29, 2020)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PHIPPS, Circuit Judge.
Matthew Kowalski worked for the United States Postal Service as a part-time
Flexible Letter Carrier at the Greentree Branch Post Office in Pittsburgh, Pennsylvania
from 2004 until his termination in 2012. After his termination, Kowalski sued the
Postmaster General under the Rehabilitation Act, claiming discriminatory and retaliatory
treatment due to his anxiety disorder. The District Court entered summary judgment
against Kowalski, and in reviewing that judgment de novo, we will affirm.
I
This case is shadowed heavily by a prior employment dispute between Kowalski
and the Postal Service. That disagreement arose in January 2011 out of a conversation
that Kowalski had with his station manager in response to the reassignment of his normal
route. During that exchange, Kowalski expressed his stress level, which he associated
with a recent mass shooting in Arizona. Interpreting those statements as a threat within
the meaning of the Postal Service’s zero-tolerance policy, the station manager placed
Kowalski on emergency off-duty status. As a result, Kowalski could return to work only
upon providing medical substantiation that he was not a threat to himself or others.
During his absence, Kowalski was diagnosed with general anxiety disorder. After
treating him for it, his psychologist supplied a letter stating that Kowalski was not a
danger to himself or others. The Postal Service accepted that letter and scheduled
Kowalski’s return in late February 2011.
Perhaps due to a miscommunication, Kowalski did not arrive for work on the
scheduled date. Instead, he appeared the next workday. But after marking him absent
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without leave for the workday before, the Postal Service commenced termination
proceedings against him and later issued a Notice of Removal, which Kowalski
challenged through a grievance.
Kowalski and the Postal Service resolved that dispute through a Last Chance
Agreement. As part of that agreement, Kowalski admitted that the Postal Service had just
cause for the Notice of Removal. Also, he agreed that for two years he would adhere to
all rules and regulations of the Postal Service, and he would comply with any order from
his supervisor before disputing it. Those terms were strict, and Kowalski expressed
reservations about them, in part because he did not get along with one of the managers,
Tony Piergrossi. But ultimately, he signed the agreement and returned to work in July
2011.
Upon Kowalski’s return, and consistent with his apprehensions, Piergrossi became
his supervisor. Piergrossi disparaged and mocked Kowalski – calling him “Killer
Kowalski,” Appx. 325, and telling other postal employees that they should wear a bullet-
proof vest around Kowalski. (Also, Kowalski testified that Piergrossi referred to him as
“crazy” or “nuts,” Appx. 325, but in a sworn statement, Piergrossi denies doing so, Appx.
489, ¶ 4.) Kowalski did not file a grievance to complain about Piergrossi’s conduct.
On December 27, 2011, Kowalski and Piergrossi had a disagreement that became
the undoing of Kowalski’s tenure with the Postal Service. That day, Piergrossi ordered
Kowalski to deliver mail on a rural route in addition to his regular route, and Kowalski
did not do so. Kowalski argued that the additional assignment violated the collective
bargaining agreement, and he requested an opportunity to speak with the union
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representative. In a visible display of irritation, if not anger, Piergrossi denied that
request. Kowalski nonetheless spoke with the union representative, who advised
Kowalski to “carry the route, and grieve it later.” Appx. 331. Kowalski followed a
different course: he submitted an immediate request for sick leave asserting that due to
his anxiety disorder, he did not feel comfortable driving. After Piergrossi orally denied
that written request, he threw it in the trash. He then stated that he would have Kowalski
fired and ordered Kowalski to leave the building. With that, Kowalski departed.
Due to that incident, the Postal Service began the process of terminating Kowalski.
Another manager submitted a Request for Discipline, and Kowalski had an opportunity to
respond. The Postal Service then issued a Notice of Removal for his termination,
identifying two violations of the Last Chance Agreement: (i) failing to follow instructions
and (ii) abandoning the route.
Through a grievance, Kowalski disputed that just cause supported his removal. A
‘Step B Team,’ which consisted of a representative from the Postal Service and a
representative from the union, reviewed Kowalski’s grievance. After finding just cause,
the Step B Team directed that Kowalski’s termination become official.
Kowalski next pursued his administrative remedies with the Postal Service’s Equal
Employment Opportunity Office. In challenging his termination, he alleged that the
Postal Service terminated him not due to the Last Chance Agreement but rather due to his
anxiety disorder and his osteoarthritis. Kowalski asserted that his supervisors “provoked
him, called him names and subjected him to numerous workplace slights.” Appx. 46. An
Administrative Judge for the Equal Employment Opportunity Commission resolved
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Kowalski’s complaint without a hearing, concluding that “[a] preponderance of the
record evidence does not prove that the actions complained of were taken on account of
[Kowalski’s] disability.” Appx. 189. Kowalski appealed that decision to the EEOC’s
Office of Federal Operations, which affirmed the Administrative Judge’s decision. It
determined that “the alleged incidents were more likely the result of routine supervision,
personality conflicts, and general workplace disputes and tribulations.” Appx. 197.
Unsatisfied with the administrative adjudicatory process, Kowalski sued the
Postmaster General under the Rehabilitation Act for discrimination and retaliation. In
exercising federal-question jurisdiction over the lawsuit, see 28 U.S.C. § 1331, the
District Court determined that Kowalski had exhausted only claims related to his
termination, and on those, the District Court entered summary judgment for the
Postmaster General.
Kowalski timely appealed that judgment, and we have jurisdiction over his appeal.
See 28 U.S.C. § 1291.
II
On appeal, Kowalski challenges only the entry of summary judgment on his
termination-related claims. He brings both of those claims – one for discrimination and
the other for retaliation – under the Rehabilitation Act. But the Rehabilitation Act and its
amendments contain several provisions prohibiting disability discrimination, and the
resulting statutory scheme can fairly be described as “somewhat bewildering.” Lane v.
Pena, 518 U.S. 187, 196 (1996). Two relevant provisions permit causes of action against
the federal government: Section 501 (codified at 29 U.S.C. § 791) and Section 504
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(codified at 29 U.S.C. § 794). See 29 U.S.C. § 794a(a)(1), (2). Both causes of action
have notable limitations.
Section 501 requires federal agencies to submit affirmative action plans for “the
hiring, placement, and advancement of individuals with disabilities.” Id. § 791(b)
(emphasis added). It also recognizes the ability to sue for “nonaffirmative action
employment discrimination under this section.” Id. § 791(f) (emphasis added). By
limiting claims to “nonaffirmative action employment discrimination,” the cause of
action under Section 501 is not for all employment discrimination, but only for that
related to nonaffirmative action, meaning “the hiring, placement, and advancement of
individuals with disabilities.” Id. § 791(b).
By contrast, Section 504 of the Rehabilitation Act permits claims for “employment
discrimination.” Id. § 794(d). But it has limitations too. First, Section 504 applies only
to disability discrimination in any “program or activity” receiving federal financial
assistance or conducted by an executive agency or the Postal Service. Id. § 794(b)
(defining “program or activity” to implicate primarily entities receiving federal funding,
as opposed to federal agencies themselves). Second, Section 504 does not waive
sovereign immunity for damages claims against federal agencies or the Postal
Service. See Lane, 518 U.S. at 196-97; see also Barnes v. Gorman, 536 U.S. 181, 188-90
(2002) (holding that “punitive damages . . . may not be awarded in suits brought under
. . . § 504 of the Rehabilitation Act”). And third, Section 504 has a sole causation
requirement, meaning the discrimination must be “solely by reason of . . . disability.”
29 U.S.C. § 794(a).
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Here, the parties disagree on whether Kowalski sues under Section 501 or
Section 504. Kowalski’s complaint did not specify either. Nor did his summary
judgment briefing. In its summary judgment decision, the District Court viewed
Kowalski as proceeding under Section 504. And Kowalski did not challenge that
conclusion in his opening appellate brief. See Fed. R. App. P. 28(a)(5) (requiring a
statement of issues presented for review). The Postal Service’s appellate brief relied on
the sole-causation limitation for Section 504 claims, and Kowalski then devoted most
prominent attention in his reply brief to argue that he proceeds under Section 501.
Kowalski has enjoyed the best of both worlds for too long: an appellate reply brief
is too late to identify the statutory basis for a cause of action. See Shell Petroleum, Inc. v.
United States, 182 F.3d 212, 218 (3d Cir. 1999) (“[A litigant] must unequivocally put its
position before the trial court at a point and in a manner that permits the court to consider
its merits.”); see also United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“It is
well settled that an appellant’s failure to identify or argue an issue in his opening brief
constitutes waiver of that issue on appeal.”). Without arguing previously that his claim
was under Section 501, Kowalski cannot do so for the first time in an appellate reply
brief. He has not surrendered much, however, because his challenges on appeal involve
only his termination – and not decisions made redressable by Section 501, i.e., those
regarding hiring, placement, or advancement.
III
A plaintiff may support discrimination and retaliation claims through direct
evidence, see Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), or indirect evidence,
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see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For his disability
discrimination claim, Kowalski invokes both approaches. He supports his retaliation
claim with only indirect evidence. None of that evidence brings any material fact into
genuine dispute. See Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986) (explaining that a genuine dispute arises “if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party”). And even
viewing that evidence in the light most favorable to Kowalski, the Postal Service still
merits judgment as a matter of law. See Fed. R. Civ. P. 56(a); see also Smith v. City of
Allentown, 589 F.3d 684, 689 (3d Cir. 2009).
A. Direct Evidence of Discrimination
In challenging the entry of summary judgment, Kowalski argues that he produced
enough direct evidence of discriminatory animus to defeat summary judgment. The
direct evidence standard originates in the mixed-motive context, where an adverse
employment decision “was the product of a mixture of legitimate and illegitimate
motives.” Price Waterhouse, 490 U.S. at 247. For such a mixed-motive claim, “direct
evidence” constitutes evidence that is “so revealing of retaliatory animus that it is
unnecessary to rely on the McDonnell Douglas / Burdine burden-shifting framework,
under which the burden of proof remains with the plaintiff.” Walden v. Georgia-Pacific
Corp., 126 F.3d 506, 512 (3d Cir. 1997).
But this is not a mixed-motive case. Section 504 of the Rehabilitation Act does
not premise liability on discrimination as a motivating factor for the adverse employment
decision. Cf. 42 U.S.C. § 2000e-2(m) (permitting mixed-motive discrimination claims
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under Title VII). Rather, Section 504 requires that a disability be the sole cause of the
discrimination. See 29 U.S.C. § 794(a). Due to that sole-causation requirement, direct
evidence that discrimination was a factor does not suffice. Rather, the direct evidence
must establish that discriminatory animus was the sole cause of the adverse employment
decision.
The evidence that Kowalski proffers does not meet that standard. He points to
statements by Piergrossi that associate ill-will toward Kowalski with Kowalski’s general
anxiety disorder – words and phrases such as “nuts,” “crazy,” and “Killer Kowalski,” as
well as telling Kowalski’s co-workers to wear a bullet-proof vest around Kowalski
because he might go “postal.” Appx. 325. From those statements, Kowalski argues that
an anti-disability animus motivated Piergrossi in assigning Kowalski the additional route
on December 27.
But that issue is immaterial. Kowalski must prove that discrimination was the sole
cause of his termination – not merely the sole cause of the additional route assignment on
December 27. And for that, he has no direct evidence. The record establishes that the
Postal Service terminated Kowalski for violating his Last Chance Agreement by not
carrying the additional route as instructed by his supervisor. It is undisputed that
Piergrossi did not participate in that decision to terminate Kowalski. Piergrossi did not
issue the Notice of Removal. Nor did he serve as the postal representative on the Step B
Team. And Kowalski has no evidence that any decision-maker for his termination held
any animus toward him due to his disability, much less that any such discriminatory
animus was the sole cause for his termination.
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Without any direct evidence of discriminatory animus by an actual decision-
maker, Kowalski invokes, for the first time on appeal, a cat’s paw theory of liability.
Under that theory, which derives its name from one of Aesop’s fables, see Staub v.
Proctor Hosp., 562 U.S. 411, 415 n.1 (2011), an “employer is at fault because one of its
agents committed an action based on discriminatory animus that was intended to cause,
and did in fact cause, an adverse employment decision.” Id. at 421. But the cat’s paw
theory originated in the context of mixed-motive discrimination claims. See id.; see also
Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, 330 (3d Cir. 2015); McKenna v. City of
Phila., 649 F.3d 171, 176-80 (3d Cir. 2011). And there, liability may rest on the animus
and actions of an immediate supervisor, regardless of the motivation of the ultimate
decision-maker. See Staub, 562 U.S. at 422; see also Jones, 796 F.3d at 330.
Section 504, however, does not permit mixed-motive claims; rather, it requires that a
disability be the sole, as opposed to a partial, cause of the adverse employment decision.
See 29 U.S.C. § 794(a). That requirement removes Section 504 claims from the reach of
the cat’s paw theory. Thus, even if this newly raised argument were not forfeited, see
Huber v. Taylor, 469 F.3d 67, 74 (3d Cir. 2006), Kowalski still could not overcome
summary judgment here, where he lacks evidence of a decision-maker’s discriminatory
animus.
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B. Indirect Evidence of Discrimination and Retaliation
Kowalski also attempts to defeat summary judgment on his discrimination and
retaliation claims through indirect evidence. The dispute here is narrow.1 It pertains only
to the third stage of the McDonnell Douglas analysis, which, for both discrimination and
retaliation claims, permits a plaintiff to avoid summary judgment by demonstrating that
the employer’s stated reason is pretextual. See generally McDonnell Douglas, 411 U.S.
at 802-04 (articulating the three stages of indirect proof for discrimination); Daniels v.
Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 2015); Woodson v. Scott Paper Co.,
109 F.3d 913, 920 (3d Cir. 1997) (explaining that the McDonnell Douglas framework
generally applies to retaliation claims).
Kowalski argues that the proffered reasons for his termination were pretextual.
Proving pretext requires two showings: (i) that the stated reason was false, and (ii) that
discrimination was the real reason. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
515 (1993). This Circuit, however, has held that a plaintiff can survive summary
judgment within the McDonnell Douglas framework by producing evidence of either of
those two prongs. See Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994); see also
Keller v. Orix Credit All., Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) (en banc).
Kowalski directs his efforts to the first prong – demonstrating that the Postal
Service’s stated reasons were false. That showing demands something more than
1
The parties do not contest that the McDonnell Douglas framework applies to
Kowalski’s efforts to prove discrimination and retaliation indirectly. Nor do they dispute
that Kowalski’s discrimination and retaliation claims satisfy the first two McDonnell
Douglas stages (a prima facie case and a legitimate non-discriminatory reason).
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evidence that “the employer’s decision was wrong or mistaken.” Fuentes, 32 F.3d at
765; see also Keller, 130 F.3d at 1108. Instead, it requires proof of “weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable factfinder could rationally
find them unworthy of credence.” Fuentes, 32 F.3d at 765 (citation and quotation marks
omitted); see also Keller, 130 F.3d at 1108-09.
Kowalski identifies such a contradiction with respect to the job-abandonment
justification for his termination. Because Piergrossi ordered him to leave work, Kowalski
could not have abandoned his job in derogation of his supervisor’s order or in violation of
the Last Chance Agreement.
But Kowalski must demonstrate the falsity of each stated justification for his
termination. See Fuentes, 32 F.3d at 764-65. And the Postal Service also terminated him
for violating his Last Chance Agreement due to his refusal to carry the additional route
on December 27. Kowalski argues that he did not actually refuse to carry the route,
rather he was requesting an accommodation.
The Postal Service cannot be faulted for reaching a different conclusion.
Kowalski did not originally mention a disability as the reason he did not carry the route;
he challenged the route as a violation of the collective bargaining agreement. And by not
carrying the route and disregarding his supervisor’s order not to speak with the union
representative, Kowalski violated his Last Chance Agreement, which required him to
obey supervisors’ orders and submit grievances later. And as a matter of law, his request
for sick leave after the situation became more tense does not retroactively legitimize his
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prior conduct. See Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d
130, 137 (3d Cir. 2006) (“But as the Supreme Court has held, an employer need not
refrain from carrying out a previously reached employment decision because an
employee subsequently claims to be engaging in protected activity.”). Thus, Kowalski
has not demonstrated pretext for each basis for the Postal Service’s termination decision.
***
For the foregoing reasons, we will affirm the District Court’s order entering
summary judgment for the Postmaster General.
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