UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Robert P. DesRoches
v. Case N o . 05-CV-088-PB Opinion N o . 2009 DNH 062
John E . Potter, Postmaster General, United States Postal Service
MEMORANDUM AND ORDER
The United States Postal Service (“USPS”) has filed a
counterclaim for unjust enrichment seeking to recover $317,325.25
in back pay and interest that it paid to Robert DesRoches
pursuant to an order issued by the Equal Employment Opportunity
Commission (“EEOC”). For the reasons outlined in this Memorandum
and Order, I determine that the USPS is entitled to summary
judgment on all aspects of its unjust enrichment claim except
DesRoches’ affirmative defense that the claim is barred by the
statute of limitations. Because the statute of limitations issue
has not been adequately briefed, I direct the USPS to address it
in a new motion for summary judgment. I. BACKGROUND AND PROCEDURAL HISTORY1
On May 1 2 , 1998, the EEOC determined that the USPS violated
the Rehabilitation Act of 1973 by denying DesRoches a Full-Time
Regular (“FTR”) clerk position. (Am. Compl., Doc. N o . 3 4 , ¶ 15.)
The EEOC decision became final on July 1 9 , 2000, when the EEOC
denied the USPS’s request for reconsideration. At that time, the
EEOC ordered the USPS to award DesRoches a full-time clerk
position and pay him back pay and interest.
Despite efforts to find DesRoches appropriate employment
with the Post Office, the parties were unable to agree on an
acceptable position. Accordingly, on September 2 3 , 2002,
DesRoches filed an enforcement petition with the EEOC. (Id. ¶
20.) On October 1 , 2004, while the enforcement petition was
pending, the USPS offered DesRoches the position he was seeking.
(Id. ¶ 23.) DesRoches nevertheless rejected the USPS’s job
offer. On January 1 1 , 2005, the USPS paid DesRoches $317,325.25
in back pay and interest. (Id. ¶ 24.) DesRoches did not
withdraw the enforcement petition after receiving this award
because he claimed that the award improperly failed to compensate
1 This case has a complicated procedural history that I have described in detail in prior orders. See DesRoches v . Potter (DesRoches I I ) , 2008 DNH 174; DesRoches v . Potter (DesRoches I ) , 2006 DNH 066. Here, I describe only those facts that are needed to understand the present dispute.
-2- him for the period between September 2 2 , 2002 (30 days after the
USPS first offered DesRoches what it considered was an acceptable
position) and November 1 , 2004 (30 days after the job offer that
DesRoches concedes was in compliance with the EEOC order). (Id.
¶¶ 23-24.)
Approximately one month after DesRoches received the back
pay and interest award, the EEOC issued an order denying the
enforcement petition. (Id. ¶ 25.) In explaining its decision,
the EEOC concluded that DesRoches was not owed any back pay or
interest “[b]ecause petitioner ceased coming to work as of
January 7 , 1994, prior to the date of the discriminatory event,
i.e., April 3 0 , 1994, and his removal was upheld on appeal to the
MSPB [Merit System Protection Board] and EEOC . . . .” (Pl.’s
Ex. E to Am. Compl., Doc. N o . 34.)
DesRoches filed an action in federal court on March 1 7 ,
2005, seeking judicial review of the EEOC’s enforcement order.
Within three months of DesRoches’ filing, the USPS answered the
complaint and asserted a counterclaim for unjust enrichment.
On June 1 2 , 2006, I issued an order rejecting DesRoches’
claim for judicial review. DesRoches I , 2006 DNH 066. DesRoches
responded with an amended complaint asserting, among other
things, a claim for de novo review of his Rehabilitation Act
claim. On September 1 7 , 2008, I reviewed the matter de novo, and
-3- granted the USPS’ motion for summary judgment on the
Rehabilitation Act claim. DesRoches I I , 2008 DNH 173. I based
my ruling on a determination that DesRoches could not prove that
he was capable of working as a FTR clerk when he applied for the
position in 1994. Id.
II. STANDARD OF REVIEW
Summary judgment is appropriate when “the discovery and
disclosure materials on file, and any affidavits show that there
is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). A party seeking summary judgment must first identify the
absence of a genuine issue of material fact. Celotex Corp. v .
Catrett, 477 U.S. 3 1 7 , 323 (1986). The burden then shifts to the
nonmoving party to “produce evidence on which a reasonable finder
of fact, under the appropriate proof burden, could base a verdict
for i t ; if that party cannot produce such evidence, the motion
must be granted.” Ayala-Gerena v . Bristol Myers-Squibb Co., 95
F.3d 8 6 , 94 (1st Cir. 1996); see Celotex, 477 U.S. at 323.
-4- III. ANALYSIS
The USPS asserts that DesRoches was unjustly enriched when
he received back pay and interest to which he was not entitled.
DesRoches presents a series of arguments in opposition to the
USPS’ motion for summary judgment. I outline the elements of the
USPS’ unjust enrichment claim and then responded to DesRoches’
argument in turn.
A. Unjust Enrichment
The doctrine of unjust enrichment holds that “one shall not
be allowed to profit or enrich himself at the expense of another
contrary to equity.” E . Elec. Corp. v . FERD Constr., Inc., 2005
WL 3447957, at *3 (D.N.H. Dec. 1 5 , 2005) (quoting Pella Windows &
Doors, Inc. v . Faraci, 133 N.H. 585, 586 (1990)). A plaintiff in
an unjust enrichment case is not required to prove “that the
defendant obtained the benefit through wrongful acts; passive
acceptance of a benefit may also constitute unjust enrichment.”
Invest Almaz v . Temple-Inland Forest Prods. Corp., 243 F.3d 5 7 ,
64 (1st Cir. 2001); see also E . Elec. Corp., 2005 WL 3447957 at
*3. To justify restitution, there must be “more than a moral
claim for reimbursement. Instead, ‘[t]here must be some specific
legal principle or situation which equity has established or
-5- recognized to bring a case within the scope of the doctrine.’”
Invest Almaz, 243 F.3d at 64 (quoting Cohen v . Frank Developers,
Inc., 118 N.H. 5 1 2 , 518 (1978)).
When this legal standard is applied to the undisputed facts
of this case, it is clear that DesRoches has been unjustly
enriched. On January 1 1 , 2005, the USPS paid DesRoches
$317,325.25 in back pay and interest. DesRoches’ entitlement to
that payment was based on an order from the EEOC ruling that the
USPS had violated his rights under the Rehabilitation Act. After
DesRoches sought de novo review of his Rehabilitation Act claim,
I determined that the claim lacked merit because DesRoches could
not prove that he was capable of working as a FTR clerk when he
applied for the position in 1994. Thus, as the matter now
stands, DesRoches has no entitlement under the Rehabilitation Act
to the money he received from the USPS.
B. DesRoches’ Arguments
1. Material Variance
DesRoches first argues that the unjust enrichment claim is
defective because the theory of unjust enrichment pled in the
counterclaim varies materially from the unjust enrichment theory
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Robert P. DesRoches
v. Case N o . 05-CV-088-PB Opinion N o . 2009 DNH 062
John E . Potter, Postmaster General, United States Postal Service
MEMORANDUM AND ORDER
The United States Postal Service (“USPS”) has filed a
counterclaim for unjust enrichment seeking to recover $317,325.25
in back pay and interest that it paid to Robert DesRoches
pursuant to an order issued by the Equal Employment Opportunity
Commission (“EEOC”). For the reasons outlined in this Memorandum
and Order, I determine that the USPS is entitled to summary
judgment on all aspects of its unjust enrichment claim except
DesRoches’ affirmative defense that the claim is barred by the
statute of limitations. Because the statute of limitations issue
has not been adequately briefed, I direct the USPS to address it
in a new motion for summary judgment. I. BACKGROUND AND PROCEDURAL HISTORY1
On May 1 2 , 1998, the EEOC determined that the USPS violated
the Rehabilitation Act of 1973 by denying DesRoches a Full-Time
Regular (“FTR”) clerk position. (Am. Compl., Doc. N o . 3 4 , ¶ 15.)
The EEOC decision became final on July 1 9 , 2000, when the EEOC
denied the USPS’s request for reconsideration. At that time, the
EEOC ordered the USPS to award DesRoches a full-time clerk
position and pay him back pay and interest.
Despite efforts to find DesRoches appropriate employment
with the Post Office, the parties were unable to agree on an
acceptable position. Accordingly, on September 2 3 , 2002,
DesRoches filed an enforcement petition with the EEOC. (Id. ¶
20.) On October 1 , 2004, while the enforcement petition was
pending, the USPS offered DesRoches the position he was seeking.
(Id. ¶ 23.) DesRoches nevertheless rejected the USPS’s job
offer. On January 1 1 , 2005, the USPS paid DesRoches $317,325.25
in back pay and interest. (Id. ¶ 24.) DesRoches did not
withdraw the enforcement petition after receiving this award
because he claimed that the award improperly failed to compensate
1 This case has a complicated procedural history that I have described in detail in prior orders. See DesRoches v . Potter (DesRoches I I ) , 2008 DNH 174; DesRoches v . Potter (DesRoches I ) , 2006 DNH 066. Here, I describe only those facts that are needed to understand the present dispute.
-2- him for the period between September 2 2 , 2002 (30 days after the
USPS first offered DesRoches what it considered was an acceptable
position) and November 1 , 2004 (30 days after the job offer that
DesRoches concedes was in compliance with the EEOC order). (Id.
¶¶ 23-24.)
Approximately one month after DesRoches received the back
pay and interest award, the EEOC issued an order denying the
enforcement petition. (Id. ¶ 25.) In explaining its decision,
the EEOC concluded that DesRoches was not owed any back pay or
interest “[b]ecause petitioner ceased coming to work as of
January 7 , 1994, prior to the date of the discriminatory event,
i.e., April 3 0 , 1994, and his removal was upheld on appeal to the
MSPB [Merit System Protection Board] and EEOC . . . .” (Pl.’s
Ex. E to Am. Compl., Doc. N o . 34.)
DesRoches filed an action in federal court on March 1 7 ,
2005, seeking judicial review of the EEOC’s enforcement order.
Within three months of DesRoches’ filing, the USPS answered the
complaint and asserted a counterclaim for unjust enrichment.
On June 1 2 , 2006, I issued an order rejecting DesRoches’
claim for judicial review. DesRoches I , 2006 DNH 066. DesRoches
responded with an amended complaint asserting, among other
things, a claim for de novo review of his Rehabilitation Act
claim. On September 1 7 , 2008, I reviewed the matter de novo, and
-3- granted the USPS’ motion for summary judgment on the
Rehabilitation Act claim. DesRoches I I , 2008 DNH 173. I based
my ruling on a determination that DesRoches could not prove that
he was capable of working as a FTR clerk when he applied for the
position in 1994. Id.
II. STANDARD OF REVIEW
Summary judgment is appropriate when “the discovery and
disclosure materials on file, and any affidavits show that there
is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). A party seeking summary judgment must first identify the
absence of a genuine issue of material fact. Celotex Corp. v .
Catrett, 477 U.S. 3 1 7 , 323 (1986). The burden then shifts to the
nonmoving party to “produce evidence on which a reasonable finder
of fact, under the appropriate proof burden, could base a verdict
for i t ; if that party cannot produce such evidence, the motion
must be granted.” Ayala-Gerena v . Bristol Myers-Squibb Co., 95
F.3d 8 6 , 94 (1st Cir. 1996); see Celotex, 477 U.S. at 323.
-4- III. ANALYSIS
The USPS asserts that DesRoches was unjustly enriched when
he received back pay and interest to which he was not entitled.
DesRoches presents a series of arguments in opposition to the
USPS’ motion for summary judgment. I outline the elements of the
USPS’ unjust enrichment claim and then responded to DesRoches’
argument in turn.
A. Unjust Enrichment
The doctrine of unjust enrichment holds that “one shall not
be allowed to profit or enrich himself at the expense of another
contrary to equity.” E . Elec. Corp. v . FERD Constr., Inc., 2005
WL 3447957, at *3 (D.N.H. Dec. 1 5 , 2005) (quoting Pella Windows &
Doors, Inc. v . Faraci, 133 N.H. 585, 586 (1990)). A plaintiff in
an unjust enrichment case is not required to prove “that the
defendant obtained the benefit through wrongful acts; passive
acceptance of a benefit may also constitute unjust enrichment.”
Invest Almaz v . Temple-Inland Forest Prods. Corp., 243 F.3d 5 7 ,
64 (1st Cir. 2001); see also E . Elec. Corp., 2005 WL 3447957 at
*3. To justify restitution, there must be “more than a moral
claim for reimbursement. Instead, ‘[t]here must be some specific
legal principle or situation which equity has established or
-5- recognized to bring a case within the scope of the doctrine.’”
Invest Almaz, 243 F.3d at 64 (quoting Cohen v . Frank Developers,
Inc., 118 N.H. 5 1 2 , 518 (1978)).
When this legal standard is applied to the undisputed facts
of this case, it is clear that DesRoches has been unjustly
enriched. On January 1 1 , 2005, the USPS paid DesRoches
$317,325.25 in back pay and interest. DesRoches’ entitlement to
that payment was based on an order from the EEOC ruling that the
USPS had violated his rights under the Rehabilitation Act. After
DesRoches sought de novo review of his Rehabilitation Act claim,
I determined that the claim lacked merit because DesRoches could
not prove that he was capable of working as a FTR clerk when he
applied for the position in 1994. Thus, as the matter now
stands, DesRoches has no entitlement under the Rehabilitation Act
to the money he received from the USPS.
B. DesRoches’ Arguments
1. Material Variance
DesRoches first argues that the unjust enrichment claim is
defective because the theory of unjust enrichment pled in the
counterclaim varies materially from the unjust enrichment theory
that the USPS relies on in its summary judgment motion.
-6- This argument is unpersuasive. The USPS’s counterclaim
adequately pled unjust enrichment. It stated that “DesRoches has
no current legal entitlement to the sum of $317,325.25 paid to
him by the USPS . . . [and demanded that] DesRoches immediately
refund the $317,325.25.” (Def.’s Answer, Doc. N o . 5 , ¶¶ 84-85.)
Although the USPS bases its summary judgment motion on my
September 1 7 , 2008 order rather than the July 1 9 , 2000 EEOC order
that it originally relied on when it filed its counterclaim, its
theory of unjust enrichment has not changed. Because any
variance between the unjust enrichment claim alleged in the
counterclaim and the facts upon which the USPS seeks summary
judgment is not “substantial and material,” the variance does not
bar the USPS from obtaining summary judgment. SEC v . Happ, 392
F.3d 1 2 , 20-21 (1st Cir. 2004). In any event, even if a formal
amendment were required, it would be authorized under Fed. R.
Civ. P. 1 5 . See Foman v . Davis, 371 U.S. 1 7 8 , 182 (1962)
(permitting amendment of complaint to assert alternative theory
of recovery).
2. Insufficient Proof of Unjust Enrichment
DesRoches next claims that the USPS has “not demonstrated
how [he] has been unjustly enriched by retaining a benefit to
-7- which he was entitled under a final EEOC order.” (Pl.’s Resp.,
Doc. N o . 77-2, at 11.) The undisputed facts of this case
eviscerate DesRoches’ argument. The USPS paid DesRoches
$317,325.25 in reliance on an EEOC order that he abandoned when
he sought de novo review of his Rehabilitation Act claim. See
Timmons v . White, 314 F.3d 1229, 1234 (10th Cir. 2003) (federal
employer not bound by adverse EEOC finding when employee seeks de
novo review). I have since determined that DesRoches was not
deprived of his rights under the Rehabilitation Act. Having
failed to prove his Rehabilitation Act claim on de novo review,
DesRoches no longer has any right to the back pay and interest
award.
3. EEOC Enforcement Order is Illegal
DesRoches argues that the USPS is not entitled to summary
judgment on its unjust enrichment claim because the EEOC
enforcement order improperly altered the earlier EEOC order
granting him relief on his Retaliation Act claim. This argument
is a non-starter. Even if I assume for purposes of analysis that
the EEOC’s enforcement order was improper, that assumption has no
bearing on the counterclaim now before the court. The unjust
enrichment claim is based on an order of this court that was
-8- issued only after DesRoches decided to seek de novo review of his
Rehabilitation Act claim. DesRoches is now bound by this court’s
orders rather than any prior EEOC orders. Put bluntly, DesRoches
made this a federal case, and now must live with the outcome.
4. Improper Delay
DesRoches’ last argument is that the USPS is not entitled to
recover on an unjust enrichment theory because of its
unreasonable delay in complying with the EEOC’s July 1 9 , 2000
order. This argument also misses the mark. The USPS’s alleged
delay in processing a nonmeritorious claim does nothing to
support DesRoches’ argument that he is entitled to retain money
that was paid to him pursuant to an erroneous ruling by the EEOC.
IV. CONCLUSION
Having determined as a matter of law that DesRoches has been
unjustly enriched, the USPS’s motion for summary judgment on its
counterclaim (Doc. N o . 72) is granted. The undisputed facts
demonstrate that the USPS is entitled to recover on its unjust
enrichment claim in the amount of $317,325.25, subject only to
DesRoches’ affirmative defense that the statute of limitations
bars the USPS from recovering that money. The viability of this
-9- affirmative defense has not been adequately briefed by either
party, and therefore, the USPS is instructed to file a motion for
summary judgment on the statute of limitations issue within ten
(10) days of the issuance of this Memorandum and Order.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
May 5 , 2009
cc: Leslie Johnson, Esq. T . David Plourde, AUSA
-10-