Comerford v. Potter

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DEC 09, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-10017
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D.C. Docket No. 8:08-cv-00648-VMC-AEP
MARK G. COMERFORD,
lllllllllllllllllllll Plaintiff - Appellant,
versus
JOHN E. POTTER, Postmaster General, U.S. Postal Service,
lllllllllllllllllllll Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(December 9, 2010)
Before BARKETT and MARTIN, Circuit Judges, and HUNT, District Judge.*
PER CURIAM:
Honorable Willis B. Hunt, Jr., United States District Judge for the Northern District of*
Georgia, sitting by designation.

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Mark G. Comerford appeals from the district court’s grant of summary
judgment in favor of the United States Postal Service (“USPS”) on Comerford’s
claim brought pursuant to the Age Discrimination in Employment Act (“ADEA”)
that Joseph Gerace, the Postmaster in Bradenton, Florida, retaliated against him
for filing a union grievance and an age-discrimination complaint. The district1
court granted summary judgment to USPS on the ground that Comerford failed to
establish a prima facie case.2
Comerford, a long-time USPS employee, was working in 2004 as a letter
carrier in Tallahassee and sought to trade jobs with a willing letter carrier in
Bradenton. Purporting to rely on Comerford’s unsatisfactory attendance record,
Gerace denied the request. Comerford responded by filing a complaint with the
USPS Equal Employment Opportunity (“EEO”) department, alleging that Gerace’s
The federal-sector provision of the ADEA, 29 U.S.C. § 633a(a), authorizes retaliation1
claims. Gomez-Perez v. Potter, 553 U.S. 474 (2008). Comerford does not challenge the district
court’s denial of his age discrimination claim on appeal, and thus this claim is not before us. See
Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1274 n.4 (11th Cir. 2008). However, Comerford’s
failure to pursue his age discrimination claim does not adversely affect his retaliation claim,
which is legally and factually distinct.
“We review a district court’s grant of summary judgment de novo, viewing the2
evidence in the light most favorable to the party opposing the motion.” Webb-Edwards v.
Orange County Sheriff’s Office, 525 F.3d 1013, 1026 (11th Cir. 2008). In order to successfully
allege a prima facie retaliation claim under the ADEA, “a plaintiff must show that (1) []he
engaged in statutorily protected expression; (2) []he suffered an adverse employment action; and
(3) the adverse action was causally related to the protected expression.” Weeks v. Harden Mfg.
Corp., 291 F.3d 1307, 1311 (11th Cir. 2002).
2

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real reason for denying the request was Comerford’s age. Comerford also filed a
union grievance, asserting that Gerace’s purported reliance on Comerford’s
attendance record violated the USPS union contract. Comerford’s EEO complaint
was ultimately unsuccessful, but a dispute resolution team sustained Comerford’s
union grievance and his trade request was approved.
Comerford began working in Bradenton under Gerace shortly thereafter.
Over the next several months, Comerford was constantly disciplined. Because
Comerford believed that this discipline was unwarranted and in retaliation for his
age-discrimination complaint, he successfully sought a transfer to Colorado, even
though this transfer resulted in a loss of his seniority and his regular, full-time
work status.
Comerford subsequently filed this ADEA action. In granting summary
judgment to USPS on Comerford’s retaliation claim, the district court focused
exclusively on Comerford’s union grievance. The court found that, because the
union grievance was not based on age, Comerford did not engage in statutorily
protected expression, and thus failed to establish a prima facie case. Nowhere did
the district court mention Comerford’s EEO age-discrimination complaint, which
had alleged that Gerace’s purported reliance on Comerford’s attendance record
was a pretext for denying the trade request.
3

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There is no question that Comerford’s EEO age-discrimination complaint
constituted statutorily protected expression. See, e.g., Hairston v. Gainesville Sun
Pub. Co., 9 F.3d 913, 917, 920 (11th Cir. 1993). The fact that Comerford also
filed a union grievance does not somehow negate his EEO age-discrimination
complaint, especially given that the two were inexorably intertwined. Indeed, the
union grievance challenged Gerace’s purported reason for denying the trade
request, which Comerford alleged was a pretext for the real reason for the denial
(Comerford’s age). Thus, the district court erred by granting summary judgment
to USPS on the ground that Comerford failed to engage in statutorily protected
expression. Accordingly, we vacate the district court’s opinion with respect to
Comerford’s retaliation claim and remand for further proceedings consistent with
this opinion.
AFFIRMED IN PART; VACATED IN PART AND REMANDED.
4

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