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Mallard v. Brennan

United States District Court, D. Maine

May 5, 2015

DIANA L. MALLARD, Plaintiff,
v.
MEGAN BRENNAN, POSTMASTER GENERAL Defendant.

SECOND AMENDED[1] ORDER ON DEFENDANT'S MOTION TO DISMISS

JOHN A. WOODCOCK, Jr., District Judge.

The Postmaster General of the United States Postal Service, Megan Brennan, moves to dismiss Diana Mallard's three-count retaliation lawsuit. Ms. Mallard is an employee of the United States Postal Service, and asserts retaliation in violation of the federal Whistleblower Protection Act, the federal False Claims Act, and Maine's Whistleblower Protection Act. Concluding that none of these statutes provides a viable basis for a retaliation lawsuit by a Postal Service employee against her employer, the Court grants the Postmaster General's motion.

I. BACKGROUND

On August 29, 2014, Diana Mallard filed a complaint against Patrick R. Donahoe in his then-capacity as the Postmaster General (Postmaster) of the United States Postal Service (Postal Service)[2], containing three counts: (1) retaliation under the federal Whistleblower Protection Act (WPA), (2) retaliation under the Maine Whistleblower Protection Act (MWPA), and (3) retaliation under the False Claims Act (FCA). Pl.'s Compl. for Retaliation (ECF No. 1). On November 24, 2014, the Postmaster filed a motion to dismiss. Def.'s Mot. to Dismiss the Compl. (ECF No. 6) ( Def.'s Mot. ). Ms. Mallard responded on December 22, 2014. Pl.'s Mem. of Law In Opp'n to Def.'s Mot. to Dismiss (ECF No. 9) ( Pl.'s Opp'n ). The Postmaster replied on December 30, 2014. Def.'s Reply in Further Support of Mot. to Dismiss the Compl. (ECF No. 10) ( Def.'s Reply ).

II. THE ALLEGATIONS AND THEORIES OF ACTION IN THE COMPLAINT

A. The Factual Allegations

The Court accepts the following facts from the Complaint as true for the purposes of this Order:

Ms. Mallard, a resident of Skowhegan, Maine, began working for the Postal Service in 1987. Compl. ¶¶ 1, 5. On July 23, 2012, the Postal Service assigned Ms. Mallard as the Officer in Charge at the post office in Unity, Maine. Id. ¶ 6. Prior to the Unity assignment, Ms. Mallard worked as a level 15 postmaster in Corinna, Maine, where she enforced rules regarding time recording, and was unpopular with some of the mail carriers as a result. Id. ¶¶ 7, 9, 10. In August 2013, Ms. Mallard was removed from her position at the Corinna post office and returned to Unity. Id. ¶ 30.

On July 25, 2013, she learned that one of the carriers, Jean Asadoorian, had made a threat against her life; specifically, Ms. Asadoorian told a health care provider that she "would have killed [Ms. Mallard] if she could have." Id. ¶¶ 10, 11. That evening, Ms. Mallard told her husband and her supervisor Mr. Keast about the threat, saying that the threat left her fearing for her safety at work; both agreed that she should not return to work until this was resolved. Id. ¶ 12.

On July 27, 2013, Mr. Keast told Ms. Mallard that the sheriff had contacted Ms. Asadoorian who claimed she was not serious and was sorry. Id. ¶ 13. Mr. Keast then "pressured Plaintiff to return to work the following Monday even though she was still apprehensive to return due to the threat." Id. ¶ 13.

On July 29, 2013, Ms. Mallard returned to work and contacted Jim Thornton, a higher level postmaster, to complete her "pre-disciplinary interview" (PDI). Id. ¶ 14, 15. She met with an Employee Assistance Program (EAP) counselor, as was recommended by the Threat Assessment Team. Id. ¶ 16. The EAP counselor recommended that Ms. Mallard not return to work until more information was provided, that she not perform the PDI as scheduled for the following day, that she obtain a Protection from Harassment Order, and that she leave a couple of days earlier than planned for her vacation. Id. She applied for and was granted a temporary Protection from Harassment Order later that day. Id. ¶ 17.

On July 31, 2013, Ms. Mallard left for vacation. Prior to her departure, she left the harassment order at the Skowhegan post office, and emailed Mr. Keast asking him to deliver the order to the sheriff's department on her behalf. Id. ¶ 18. On her way out of town, she participated in a conference call with Mr. Keast and the threat assessment team. Id. ¶ 19. A female threat assessment team member "challenged Plaintiff as to why she was not in her office. No one in the group defended Plaintiff, including her supervisor who was already aware of the decision." Id. While sitting in her car on the conference call, her car began to smoke. Id. ¶ 20. Ms. Mallard assumed someone had tampered with her car. Id.

On August 9, 2013, while still on vacation, Ms. Mallard contacted Mr. Keast to check on the status of the harassment order; he told her that the order had not been forwarded, and would not be because of "policy reasons." Id. ¶ 21. He told her that Ms. Asadoorian had been given a 14-day suspension and had been cleared to return to work. Id. On August 21, 2013, still concerned for her safety, Ms. Mallard emailed Mr. Keast a list of unanswered questions regarding the threats. Id. ¶ 22. She did not receive a response. Id. On August, 24, 2013, Ms. Mallard received an email from Mr. Keast requesting that she report to the Portland office when she returned from vacation. Id. ¶ 23. She asked to meet in Skowhegan, but her request was denied. Id.

Ms. Mallard voiced her concerns about her safety to the threat assessment team on "numerous occasions"; in response, the team began to speak to her "in a demeaning way." Id. ¶ 24. Mr. Keast also became angry with Ms. Mallard and "began to treat her in a hostile manner." Id. ¶ 25.

Subsequently, Ms. Mallard obtained documents from the sheriff's department relating to the threat made by Ms. Asadoorian. Id. ¶ 26. She learned that Ms. Asadoorian had left a message with a health care facility stating that she had "homicidal feelings toward her supervisor." Id. ¶ 27. She learned that the message included a number of threats, including: (1) "I want to kill my boss", (2) "[i]f I had the means my boss would be dead", and (3) "I am having homicidal feelings toward my supervisor." Id. She was originally told there was only one threat. Id. ¶ 28.

On August 27, 2013, Ms. Mallard had a "very hostile" meeting with Mr. Keast. Id. ¶ 29. She asked him why he was treating her so poorly for participating in the investigation. Id.

After Ms. Mallard transferred back to the Unity post office in August, Mr. Keast told her that Ms. Asadoorian was back to work and that the "issue was closed"; Ms. Mallard, however, "continuously told her supervisor that she did not feel safe with [Ms.] Asadoorian's continued employment with the USPS." Id. ¶¶ 30, 31, 33. Mr. Keast also said that Ms. Mallard's twenty-five year career with the Postal Service was in jeopardy because she had mistakenly falsified timecards. Id. ¶ 32. This was the first time Ms. Mallard had heard of any mistake she made. Id.

On August 28, 2013, Ms. Mallard contacted her EAP counselor, who recommended she take time off and see a doctor. Id. ¶ 34. Ms. Mallard saw a doctor the next day, who recommended she take an undetermined period of time off on account of increased anxiety and stress caused by the threat against her life and the subsequent actions of her supervisor and the threat assessment team. Id. ¶ 35.

On September 12, 2013, Ms. Mallard contacted the EEOC to discuss her complaint. Id. ¶ 36. She filed a complaint on December 21, 2013. Id. ¶ 37. On June 9, 2014, the EEOC issued its final decision. Id. ¶ 39.

Ms. Mallard remains employed by the Postal Service, on "leave without pay" status. Id. ¶ 40. She has applied for positions in Unity, Norridgewock, and West Farmington, but has not received any of the positions; she believes this is because of her complaints. Id. ¶¶ 40-43. On August 6, 2014, she was diagnosed by a psychiatrist as having post-traumatic stress disorder. Id. ¶ 44. In mid-August 2014, when she went to the Skowhegan post office to mail her husband's books, the postal worker opened her mail and refused to ship her books. Id. ¶ 45. She believes this happened because the Skowhegan postmaster is a friend of Mr. Keast.

B. The Counts

Ms. Mallard's Complaint contains three counts. In Counts One and Two, Ms. Mallard alleges that she engaged in protected activity and that the Postal Service retaliated against her in violation of both the WPA and the MWPA. Id. ¶¶ 50, 51, 56, 57. In Count Three, Ms. Mallard says that she engaged in protected activity when "she tried to stop the mail carriers at the Unity office from inaccurately logging their hours", and ...


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