An openly-gay former postal worker is appealing the dismissal of his antibias lawsuit against the U.S. Postal Service to the Third Circuit Court of Appeals. The Coplay, Pa., man claims he was wrongfully terminated as a letter carrier due to his HIV-positive status and LGBT status shortly before he was entitled to early retirement.
“John Doe” worked at the Postal Road branch of the USPS in Allentown for about 12 years until he was fired in 2019 for allegedly kicking a co-worker. Doe denies kicking the co-worker. But he acknowledges touching her leg with his foot to let her know he was standing behind her in a line. He was cleared of a summary-offense harassment charge on Nov. 12, 2019, according to court papers.
Doe alleges that colleagues accused of much worse behavior such as spitting on a co-worker, or pulling the hair of a co-worker, or poking a co-worker in the eye, or being intoxicated on the job weren’t dismissed, according to court papers.
Still, management decided to dismiss Doe for his alleged transgression. In December 2019, Doe filed an antibias lawsuit against the USPS, claiming he was subjected to a “sadistic, discriminatory, and abusive work atmosphere.”
But on March 1, U.S. District Judge Joseph F. Leeson Jr. of the Eastern District of Pennsylvania tossed out Doe’s lawsuit because he allegedly missed a 45-day deadline to seek assistance from an EEO counselor prior to filing suit. Leeson noted that aggrieved workers are given up to 45 days from the last discriminatory act they experienced to request pre-lawsuit counseling.
According to Leeson’s opinion, Doe didn’t contact an EEO counselor until Sept. 9, 2019 — which was 87 days after Doe experienced his final alleged discriminatory act by receiving a notice of firing on June 14, 2019. Thus, Doe missed the deadline by 42 days.
Doe disputes Leeson’s calculations and his attorneys filed a notice of appeal with the Third Circuit on March 25.
Doe argues that the effective date of his dismissal was extended to Aug. 19, 2019, to give him the ability to resign rather than to be fired. He claims the Aug. 19, 2019, date of dismissal was conveyed to him by USPS and by his union, the National Association of Letter Carriers, and he has documentation to prove it. The Aug. 19, 2019, date of dismissal places Doe within the 45-day deadline for requesting pre-lawsuit counseling, since he did so on Sept. 9, 2019.
Moreover, Doe claims he didn’t realize the full extent of anti-LGBT bias at his former workplace until informed of it by a former co-worker in August 2019.
According to court records, after Doe’s termination, a former co-worker conveyed to Doe in August 2019 that other co-workers referred to him behind his back as a “sick faggot,” “homo,” “stinky,” and someone who “sucks big dick.”
The former co-worker also conveyed to Doe that the woman whom he allegedly kicked expressed pleasure that the “fruitcake” was fired. Moreover, the former co-worker provided Doe with a text he received from a colleague stating: “If [Doe] wins [his case] I’ll refuse to work near AIDS boy.”
After receiving this information in August 2019, an attorney for Doe contacted an EEO counselor at USPS on his behalf on Sept. 9, 2019, which was clearly within the 45-day deadline to do so, according to court papers submitted by Doe’s attorneys.
Doe seeks more than $150,000 in damages and reinstatement. His annual salary was about $62,000 at the time of his dismissal, according to court papers.
Neither side had a comment for this story.