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Dekeyser v. Zimmermann

United States District Court, W.D. Wisconsin

August 14, 2017




         Pro se plaintiff Amy Beth DeKeyser brought this lawsuit in state court on June 2, 2016, claiming workplace harassment by and seeking injunctive relief against defendant Vicki Zimmerman, her temporary supervisor at the United States Post Office in Waterloo, Wisconsin. Zimmerman removed the case under 28 U.S.C. § 1442(a) because the suit is premised on alleged actions of a federal officer acting under color of an agency or office of the United States -- the United States Postal Service (“USPS”). (Dkt. #1.)

         Presently before the court are three motions. Originally, defendant Zimmerman moved for summary judgment, contending that DeKeyser's lawsuit is precluded by the Civil Service Reform Act of 1978 (“CSRA”). (Dkt. #14.) Later, plaintiff DeKeyser moved for a temporary restraining order and preliminary injunction to enjoin Zimmerman's allegedly harassing and abusive behavior. (Dkt. #27.) Most recently, Zimmerman moved to stay the September 18, 2017, trial date. (Dkt. #33.)

         Because this court is precluded by the CSRA from hearing DeKeyser's claims unless she has exhausted her administrative remedies, and she acknowledges not having done so, the court must grant Zimmerman's motion for summary judgment without prejudice to her refiling after exhausting those remedies, as well as deny her pending motion for a preliminary injunction.[1]

         Finally, in light of the court's grant of summary judgment, defendant's motion to stay the trial date has been rendered moot.


         A. Claimed Harassment

         At the time this lawsuit was filed in June of 2016, plaintiff Amy Beth DeKeyser was employed as a city carrier assistant at the Waterloo Post Office. Defendant Vicki L. Zimmerman was the officer in charge of that Post Office, and she was serving as DeKeyser's supervisor on a temporary basis. At that time, DeKeyser filed a petition for a temporary restraining order and motion for a preliminary injunction against Zimmerman in the Circuit Court for Columbia County, Wisconsin. Among other allegations, DeKeyser claimed in her state court filing -- and in her report to the Waterloo Police --that on March 22, 2016, Zimmerman had harassed her at the post office by “throwing postal tubs on the dock, ” slamming the doors of her vehicle, “ramming and pushing” her, and “yelling at and belittling her.” DeKeyser further claimed that this was part of a larger pattern of harassment from mid-May through June 2, 2016, during which Zimmerman subjected her to constant workplace bullying, “badgered her with questions and comments with no break, ” belittled her in front of her coworkers, threatened her with disciplinary action, and otherwise intimidated and verbally abused her.

         According to the documents submitted on summary judgment, the last day DeKeyser ever actually reported for regular duty at the post office was June 2, 2016, when she left work and filed this lawsuit in state court seeking a temporary restraining order. On June 2, the same day DeKeyser filed her petition, the circuit court entered a temporary restraining order and scheduled an injunction hearing for July 16, 2016. However, on June 15, 2016, the United States Attorney removed the case to this court on Zimmerman's behalf under 28 U.S.C. § 1442(a), divesting the circuit court of further jurisdiction.

         B. Administrative Proceedings and Termination of Employment[3]

         The National Association of Letter Carriers (AFL-CIO) is the exclusive union representative for all United States Postal Service city carrier assistants. The NALC has entered into a series of collective bargaining agreements with the Postal Service on behalf of its members. The agreement then in effect sets forth grievance and arbitration procedures for assistants like DeKeyser to raise administrative disputes or complaints related to their employment.

         On or about June 25, 2016, DeKeyser contacted the USPS Equal Employment Opportunity Commission and initiated a process to address her grievances. At that time, DeKeyser also submitted her “Information for Pre-Complaint Counseling, ” which alleged that Zimmermann harassed and belittled her, as well as discriminated against her, based on her sex and mental and physical disabilities, and stated that she was seeking “to work in a non-hostile work environment.” DeKeyser subsequently accepted the government's offer to participate in mediation, which triggered communications through a USPS alternative dispute resolution specialist named Aida Pantoja. Based on the administrative record, it appears that resolution specialist Pantoja processed DeKeyser's claims and reviewed responses by Zimmerman and other management officials to DeKeyser's specific allegations.

         According to the administrative record, it appears that DeKeyser failed to report for work as scheduled from June 2nd through July 30th without further notice or explanation. When given an opportunity to explain herself at a hearing on August 5th, DeKeyser (with assistance from her NALC union representative Andrew Khitsun) explained that she did not feel safe in what she described as a hostile work environment. In response, USPS management acknowledged that DeKeyser's primary problem was with Zimmerman, but also noted that she was no longer assigned to the same post office location as DeKeyser, making her failure to notify anyone before or during her absences from work unexcused. Therefore, on August 8, 2016, DeKeyser was issued a letter of removal for being absent without leave.

         On September 22, 2016, resolution specialist Pantoja also wrote a letter to DeKeyser, copying Khitsun, explaining that there would be no offer of settlement or other resolution for her discrimination or harassment claims, and that she could file a formal complaint through the USPS Equal Employment Opportunity process if she wished. (Dkt. #25-4.) In response, DeKeyser proceeded to file a formal complaint with the USPS on September 27, 2016, requesting transfer to a different post office, placement in a “non-hostile” work environment, a restraining order against defendant Zimmerman, and monetary compensation of approximately $14, 000. (Id.)

         Unfortunately, the record does not reflect how the USPS responded to this formal complaint, nor how much further (if at all) DeKeyser pursued her administrative remedies. What is clear is that after an administrative appeal, the USPS dispute resolution team found that there was just cause for her removal under the terms of the collective bargaining agreement, and affirmed a decision on October 6, 2016, ...

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