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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND RODNEY ALLEN v. JOHN E. POTTER * * * Civil No. JFM-06-1102 * * ***** MEMORANDUM

Plaintiff has brought this action for employment discrimination against the Secretary of the United States Postal Service. Plaintiff claims that he was a victim of racial discrimination and a retaliatory discharge. Discovery has been completed, and defendant has filed a motion for summary judgment. The motion will be granted. Plaintiff's employment was terminated on the asserted ground that, in violation of Postal Service policy and Maryland law, he had tape recorded conversations he had with Robert Browning, the Postmaster of the Owings Mills Post Office, and Marlow Huff, one of his supervisors. Plaintiff admitted that he did the tape recording, and it is self-evident that an employee may properly be discharged for such behavior. Plaintiff contends, however, that defendant is not entitled to summary judgment because (1) Postmaster Browning had engaged in similar misconduct and had not been discharged, and (2) the tape recording was not the genuine reason for his discharge because it had occurred more than a year before the termination of his

employment.1 Neither of these arguments is persuasive.2 As to the first argument, plaintiff claims that Browning had allowed another supervisor to listen in on a disciplinary meeting by speaker-phone without the other participant's permission. If this activity occurred, it was (as alleged by plaintiff) in violation of the same Postal Service policy violated by plaintiff. However, permitting someone to listen in over a speaker-phone is a less egregious activity than surreptitiously recording a conversation in violation of Maryland law. Furthermore, plaintiff was not similarly situated to Browning because plaintiff had a very troubled work history. He had received numerous letters of warning and disciplinary suspensions and twice before he had been given two notices of removal (which were subsequently reduced to additional suspensions). Plaintiff contends that defendant could not take his work history into account because all of his prior instances of misconduct had been addressed by the discipline imposed upon him. However, he cites no authority in support of that proposition. Certainly, an employer should not be permitted to impose additional sanctions upon an employee for misconduct for which the employee has already been disciplined. It is equally

In his opposition to defendant's summary judgment motion, plaintiff also argues that his discharge was in violation of the Civil Service Reform Act. However, plaintiff never filed a claim with the Merit Systems Protection Board, and only his EEO claims are cognizable in this action. Plaintiff tape recorded his conversations with Browning and Huff for the alleged purpose of obtaining evidence to support an EEO complaint he had filed alleging that he had been subjected to a hostile work environment based on race and/or retaliation. To the extent that plaintiff suggests that he could not be discharged because he made the tape recording in connection with protected activity, the suggestion is unpersuasive. Nothing in federal law requires an employer to accept a defense based upon the proposition that "the ends justify the means" in determining how to discipline an employee who has engaged in illegal conduct. 2
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certain, however, that if an employee commits a new act of misconduct (as plaintiff unquestionably did), an employer may properly take into account the employee's prior work history in determining the appropriate sanction to impose in connection with the new act of misconduct. Plaintiff's second argument is that the long interval between the time he tape recorded Browning and Huff and the termination of his employment gives rise to a dispute of fact as to the reason his employment was terminated. He was not discharged until March 21, 2005, and he had tape recorded Browning and Huff in early January 2004. The fallacy in plaintiff's argument is that Browning has testified on deposition that he did not learn of the taping until December 2004 (from a lawyer for the Postal Service) and that he began an investigation immediately thereafter. Several months later he proposed that plaintiff's employment be terminated. Relying upon documents he submitted as part of the grievance process, showing that he acknowledged as early as January 2004 that he had made the secret recording; plaintiff speculates that Browning must have been aware of the recordings earlier than December 2004. Such speculation, however, is insufficient to create a genuine dispute of fact. A separate order effecting the ruling made in this memorandum is being entered herewith.

Date: January 28, 2008

/s/ J. Frederick Motz United States District Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND RODNEY ALLEN v. JOHN E. POTTER * * * Civil No. JFM-06-1102 * * ***** ORDER

For the reasons stated in the accompanying memorandum, it is, this 28th day of January 2008 ORDERED 1. Defendant's motion for summary judgment is granted; and 2. Judgment is entered in favor of defendant against plaintiff.

/s/ J. Frederick Motz United States District Judge

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