United States District Court, D. Alaska
George M. COLEMAN, Plaintiff,
Patrick R. DONAHOE, Postmaster General, Defendant.
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George M. Coleman, Anchorage, AK, pro se.
Edward Bryan Wilson, U.S. Attorney's Office, Anchorage, AK, for Defendant.
ORDER RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
SHARON L. GLEASON, District Judge.
This is an action for employment discrimination that George Coleman initiated in January 2011. Defendant Patrick R. Donahoe has moved for summary judgment on all claims that Mr. Coleman has brought against him. The motion has been fully briefed by the parties  and oral argument was held in Anchorage on July 23, 2012.
George Coleman is an African American male who was employed by the United States Postal Service (" USPS" ) for approximately thirty years. Mr. Donahoe is the Postmaster General of the USPS and is named in this action in his official capacity. In February 2008, Mr. Coleman, who had been in a management position, was demoted to a clerk position and assigned to the USPS' Muldoon Station location. Mr. Coleman's claims arise from the circumstances surrounding that demotion, his subsequent employment at the Muldoon Station, and his early retirement from the USPS in December 2008.
The facts, presented in the light most favorable to the plaintiff for purposes of this summary judgment motion, are as follows: Mr. Coleman began working for the USPS as a clerk in October 1978 and was employed by that agency until December 31, 2008. Mr. Coleman held several positions while at the USPS  and received multiple positive performance evaluations. 
His last management position was as Manager of Statistical Programs (EAS-21), a position he held from 1997 until his demotion in February 2008.
In approximately 1991, Mr. Coleman unsuccessfully applied for the position of Transportation Requirements Specialist (EAS-15). He filed an EEO complaint at that time against two USPS employees involved in the selection process, alleging that the failure to hire him was discriminatory. The USPS then offered Mr. Coleman another position to settle the dispute, which Mr. Coleman accepted.
Between 2004 and 2007, Mr. Coleman was the subject of three EEO complaints that alleged he had engaged in inappropriate conduct toward women. Two of these complaints may have arisen from the same incident  and Mr. Coleman alleges they were brought by an employee who was later fired for unrelated dishonesty. Mr. Coleman disputes the legitimacy of all three of these complaints, but only the most recent one appears to be directly relevant to this case.
As a result of the last of these incidents, Mr. Coleman received a Notice of Proposed Removal from the USPS on December 28, 2007 informing him that his termination had been recommended. Mr. Coleman responded by filing an EEO complaint. On February 5, 2008, Mr. Coleman met with his supervisor in an effort to settle the dispute. Mr. Coleman's union representative attended the meeting with him.
The parties reached a settlement at that meeting. The terms of that settlement provided that the Notice of Proposed Removal would be converted to a " Final Written Warning in Lieu of Termination" and that Mr. Coleman would be demoted to a PS-05 position, with seniority " one day less than the junior unassigned regular" employee.
After his demotion, Mr. Coleman worked as an unassigned regular employee at a PS-05 position at the Muldoon Station from February 2008 until he went on medical leave on August 4, 2008. While employed at the Muldoon Station, Mr. Coleman has testified that postal management made him exceed his physical work restrictions, forced him to sort mail without assistance, required him to travel from station to station during the workday, micromanaged his work, and assigned him allegedly humiliating duties.
In April 2008, Mr. Coleman applied for the position of Retail Specialist at a level EAS-16. Mr. Coleman was interviewed for this position. He was informed by a letter dated July 16, 2008 that he had not been selected. The position was awarded to a white male. 
On July 1, 2008, Mr. Coleman applied for another position, a Small Business Specialist. He was not selected for an interview for that position. Subsequently, a hiring freeze took effect and the position remained unfilled. 
On August 4, 2008, Mr. Coleman went on approved FMLA leave. On August 8, 2008, Mr. Coleman received a document about a Voluntary Early Retirement Option offered by the USPS. The document is addressed to postmasters, managers, and supervisors and appears to have been widely distributed.
On August 23, 2008, 38 days after being notified of his non-selection for the Retail Specialist position, Mr. Coleman requested a meeting with a Dispute Resolution Specialist with the USPS EEO Office. Upon receipt of this appointment request, the EEO sent an Information for Pre-Complaint Counseling form to Mr. Coleman to complete.
While at the USPS, Mr. Coleman had physical work restrictions that ranged at various times from 10 to 70 pounds. On August 25, 2008, while on FMLA leave, Mr. Coleman received a letter notice from the USPS Human Resources Manager that his physical work restrictions at that time did not meet the minimum requirements of his position. He was directed to provide medical documentation that demonstrated he would be able to occasionally lift up to 70 pounds within six months, or he could be removed from the USPS. 
On August 28, 2008, Mr. Coleman applied for Voluntary Early Retirement with an effective date of December 31, 2008. The application provided that it could be withdrawn by September 30, 2008.
By letter dated September 3, 2008, Mr. Coleman was assigned to a residual vacancy and directed to submit a bid card indicating his preferred assignment. He was also informed then that if he did not submit a bid card by September 11, 2008, he would be assigned to a position after all the returned cards had been processed, and that failure to qualify for an assigned position could result in removal from the USPS. Mr. Coleman submitted a bid card dated September 10, 2008 for three positions. His bid card was stamped as received by the USPS on September 12, 2008.  Mr. Coleman was informed by a letter dated September 11, 2008 that he was the only employee who had not returned a bid card and that he was being assigned to a Sales position at the Muldoon Station, a position he had not bid for. He was notified that the position required scheme qualification and training  if he was not already qualified, that the training could not be delayed because of physical work restrictions, and that failure to qualify for the position could result in removal.
On September 7, 2008, Mr. Coleman submitted to the USPS EEO Office the Information for Pre-Complaint Counseling form that was sent to him after his August 23, 2008 appointment request. In this form, he alleged that " the latest discriminatory act" toward him had occurred on September 6, 2008 when he received a letter stating that he was being assigned to a residual vacancy and threatening him with potential removal from the USPS if he failed to qualify— presumably Mr. Coleman was referring to the September 3, 2008 letter discussed above. Mr. Coleman described the resolution he sought as " Retire, as per my Request for Early Retirement on 12/31/2008. To be made whole, in all respects."  Mr. Coleman did not specifically reference any position he had applied for in this form.
Mr. Coleman did not withdraw his early retirement application, so it became irrevocable at the end of September 2008, when the thirty-day withdrawal period expired.
On October 18, 2008, Mr. Coleman made another request for an appointment with a Dispute Resolution Specialist. On October 28, 2008, Mr. Coleman submitted another Pre-Complaint Counseling form. In that form, he expressly alleged that he applied for but was denied the Retail Specialist position and two Small Business Specialist positions in Anchorage USPS offices.  This is the earliest document in the record in which Mr. Coleman explicitly
raised his non-selection for these positions as the basis for a claim. Mr. Coleman described the resolution he sought as " (1) Promotion to position (2) Back pay (3) Emotional Distress (4) Damages for Constructive Discharge if I am forced to take early Retirement." 
On October 31, 2008, Mr. Coleman and his attorney attended a mediation to address his pending EEO claims, but no resolution was achieved. By letter dated November 19, 2008, Mr. Coleman was notified of his right to pursue a formal claim with the EEOC.
Mr. Coleman retired from the USPS on December 31, 2008. He had not returned to work at the USPS after he went on FMLA leave on August 4, 2008. 
I. Mr. Coleman's Formal EEO Complaint.
On December 3, 2008, prior to his retirement, Mr. Coleman filed a formal complaint of discrimination with the USPS EEO Office. Mr. Coleman was represented by counsel during that process. The formal complaint alleged:
• improper demotion,
• breach of the demotion settlement agreement,
• failure to promote with regard to two Small Business Specialist (EAS-16) positions and one Retail Specialist (EAS-16) position,
• harassment at the Muldoon Station,
• retaliation for prior EEO activity, and
• constructive discharge (forced ...