UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert P. DesRoches

v. Case N o . 05-CV-088-PB Opinion N o .

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 ) ,

; DesRoches v . Potter (DesRoches I ) ,

. 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 ,

. 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 ,

. 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.

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,

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.,

6 , 94 (1st Cir. 1996); see Celotex,

.

-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.,

, at *3 (D.N.H. Dec. 1 5 , 2005) (quoting Pella Windows &

Doors, Inc. v . Faraci,

(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.,

7 ,

64 (1st Cir. 2001); see also E . Elec. Corp.,

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,

(quoting Cohen v . Frank Developers,

Inc.,

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,

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,

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,

(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-