On Appeal for the United States District Court for the District of New Jersey (D.C. No. 96-cv-03241) District Judge: Honorable Nicholas H. Politan
Before: Becker, Chief Judge,*fn2 SCIRICA*fn3 and
McKEE, Circuit Judges
Argued: September 18, 2002
Patrick Sarullo, a former employee of the United States Postal Service, was arrested for dealing drugs at work and was subsequently discharged. Sarullo, denying the charge, brought a Bivens action for malicious prosecution arising out of the arrest and also a claim against the Postal Service under Title VII for discrimination based on age and national origin and retaliation for a previous EEO claim. The District Court granted summary judgment for the Postal Service, holding (1) that Sarullo's allegations could not defeat the individual defendants' qualified immunity with respect to the Bivens claim; and (2) that Sarullo had not established a prima facie case of employment discrimination or retaliation. We affirm with respect to the discrimination and retaliation claims. With respect to the Bivens claim, we dismiss for lack of subject matter jurisdiction on the grounds that the Civil Service Reform Act affords Sarullo the exclusive remedy for his malicious prosecution claim. We therefore need not reach the question of qualified immunity discussed by the District Court.
In the fall of 1992, Sarullo became the focus of an investigation being conducted by agents of the United States Postal Service ("USPS"). Postal Inspector Thomas Modaferri received information from Postmaster Zeevalk of the Westfield Post Office that a postal employee named "Pat" who lived on Cherry Street, was selling drugs to postal employees inside the South Plainfield post office ("South Plainfield"). Based on this information, Inspector Modaferri initiated an investigation. He first spoke with South Plainfield Postmaster Linda Wyatt to determine if an employee named "Pat" lived on Cherry Street in South Plainfield. She informed Modaferri that Pat Sarullo was the only employee named "Pat" in South Plainfield and confirmed that Sarullo lived on Cherry Street. Modaferri did not inform Wyatt why he was inquiring.
Shortly thereafter, Wilma Medero was hired at South Plainfield as a casual clerk. Medero had worked as a police informant in Plainfield on over 125 investigations, and was highly recommended by the Plainfield Police Department. Medero was asked to assist in Modaferri's investigation even though (or perhaps because) Medero had a criminal record.*fn4 While assisting in the investigation, Medero was expected to appear for work and perform her assigned duties while simultaneously trying to learn about any drug sales inside the post office. She was not told that an employee named "Pat" was targeted or under suspicion, nor was she given any other information about the investigation. Nevertheless, based upon information she learned while working at South Plainfield, Medero soon identified Sarullo as a source for narcotics inside the post office.
On December 15, 1992, Medero informed Modaferri that she had arranged to purchase drugs from Sarullo the next day. Modaferri then asked two Postal Inspectors, Karen Higgins and Martin Dubinski, to assist with the controlled buy that Medero had arranged. On December 16, Modaferri, Higgins, and Dubinski met with Medero.
Modaferri searched Medero and her car and then gave her a tape recorder to record her transaction with Sarullo. Modaferri then watched as Medero entered the post office. She came back less than an hour later and told the investigators that Sarullo did not have the drugs.
Medero made arrangements to buy drugs from Sarullo again on January 11, 1993, after Sarullo had shown her $120 worth of cocaine. On January 11, Modaferri and Higgins met Medero near the post office. Medero was again searched, then given a recording device and $130 in cash, and the inspectors watched as she entered the post office. Medero returned about 40 minutes later and gave Modaferri a foil package, ten remaining dollars, and the recording device. The recorder did not contain any drug related conversations.
Medero arranged another buy from Sarullo on January 14, 1993. On that date, Medero telephoned Modaferri and told him that Sarullo had an "eight ball" (1/8th of an ounce of cocaine) for sale for $180. A short time later, Medero met with Modaferri, Higgins, and Dubinski. Medero was searched, then given the tape recorder, and $190 cash.
This time, Dubinski attempted to watch the transaction from the upstairs gallery of the post office. However, his view was obstructed and he was not able to see Medero or Sarullo below neck level. Shortly thereafter, Medero informed Modaferri that she had purchased cocaine from Sarullo. At approximately 9:48 a.m., Medero met Modaferri and gave him a foil package filled with a white powdery substance. Modaferri then searched Medero and retrieved ten dollars remaining from the transaction as well as the tape recorder. However, once again, the recorder contained no drug related conversations. Medero arranged a final transaction for February 18, 1993. On that date, as before, Modaferri met Medero in the parking lot outside the post office. Medero was searched and given a recorder and $170, then she went into the post office. When she returned, she told the investigators that she had gone to Sarullo's station in the post office and obtained a brown paper napkin and a plastic baggy containing a white powdery substance from Sarullo's drawer. Medero gave Modaferri the powdery substance and the recording device and she was once again searched.
Chemical analysis confirmed that the powder Medero claimed to have obtained from Sarullo during each controlled buy was cocaine. Accordingly, on July 14, 1993, Modaferri and officers from the South Plainfield Police Department arrested Sarullo. Less than three weeks later, Sarullo received a Notice of Removal from the USPS informing him that he was being terminated effective August 7, 1993 as a result of his criminal activity.
Apparently undaunted by this notice, Sarullo filed a union grievance contesting his removal. On September 15, 1994, after a hearing and testimony from all relevant witnesses, an arbitrator issued an opinion upholding the termination. The arbitrator credited Medero's testimony about Sarullo's drug sales and concluded that USPS was therefore justified in terminating him.
Sarullo was subsequently indicted and tried for possession and distribution of a controlled substance. However, the jury was unable to reach a unanimous verdict and the prosecution subsequently moved to dismiss the indictment rather than attempt a retrial.
On January 20, 1995, Sarullo sought counseling from an Equal Employment Opportunity ("EEO") Counselor on his claim that he had been terminated from the post office because of his Native American ancestry. The Equal Employment Opportunity Commission ("EEOC") dismissed that claim because Sarullo had not contacted an EEOC counselor within forty-five days of his termination as required by regulations. Sarullo had waited a year and a half after his termination before contacting an EEO Counselor. Sarullo had previously made an EEO claim during his employment with the USPS. In 1989, Sarullo entered into a settlement with Steve Kubala, Sarullo's supervisor at that time, for Sarullo's EEO claim of employment discrimination and harassment based on Sarullo's race. The circumstances surrounding this settlement are the basis for Sarullo's claim that his discharge from the USPS was in retaliation for prior EEO activity.
Sarullo wrote Postmaster Wyatt on March 29, 1995, requesting reinstatement to his position with USPS. That letter was forwarded to William Brown, District Manager of Human Resources for the Northern New Jersey District, who was responsible for reinstatement decisions. Brown denied Sarullo's request pursuant to a USPS policy prohibiting rehiring persons who have been removed for cause. Brown was the only person involved in the decision not to reinstate Sarullo, and ...