According to the Court records: Mark Comerford is a male person, over the age of 50 residing in Colorado, but at the time of some of the acts complained of was residing within the area of the United States District Court for the Middle District of Florida, Tampa Division, in Manatee County.

Comerford has been employed by USPS as a carrier for over 25 years. Comerford was working in Tallahassee, Florida. He had “traded” jobs with another carrier based on Postal Service regulations and the National Collective Bargaining Agreement, by making a request to the new Postmaster, and when approved goes to the new duty station. He did this because he wanted to come to Florida, Comerford had an excellent work record.

The other carrier’s “trade” was approved, but the Postmaster in Bradenton disapproved Comerford’s “trade” request. The reason given was that Comerford had “insufficient sick leave”. Comerford believed that was a pretext, because he had plenty of accrued sick leave, and his previous transfers had not been held up on that basis. 9. Believing that the real reason the Bradenton Postmaster had disapproved his “trade” was because of his age, Comerford contacted the Postal Service EEO department.

Comerford filed a formal complaint alleging discrimination on the bases of age and in reprisal for prior protected activity when:

1. on July 26, 2004, he was issued a Letter of Warning;
2. on August 26, 2004, he was issued a 7-day suspension; and
3. on September 16, 2004, he was issued a 7-day suspension.

The  EEOC  and the District Court denied Comerford’s complaint. Comerford appealed his case to the Court of Appeals. Note: some facts in the case below differ from the District Court’s records.

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 district court granted summary judgment to USPS on the ground that Comerford failed to establish a prima facie case.

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 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.

There is no question that Comerford’s EEO age-discrimination complaint constituted statutorily protected expression. 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.
The federal-sector provision of the ADEA, 29 U.S.C. § 633a(a), authorizes retaliation
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.

see PDF file of case