Taylor v. Potter

Full title: PIERRE TAYLOR, Plaintiff, v. JOHN E. POTTER, Postmaster General, Defendant

Court: United States District Court, S.D. New York

Date published: Aug 16, 2004

99 Civ. 4941 (AJP) (S.D.N.Y. Aug. 16, 2004)

Opinion

99 Civ. 4941 (AJP).

August 16, 2004

OPINION AND ORDER

ANDREW PECK, Magistrate Judge

Plaintiff Pierre Taylor brings this Title VII action against the United States Postal Service ("U.S.P.S." or the "Postal Service") claiming that he was suspended three times and allegedly denied lunch breaks and overtime due to racial discrimination and retaliation. (Dkt. No. 2: Compl.) Taylor is now represented by a special guardian ad litem for purposes of this litigation, who in turn is represented by counsel. (Dkt. No. 70: 9/10/03 Order.) Presently before the Court is the U.S.P.S.'s summary judgment motion. For the reasons stated below, the motion (Dkt. No. 82) is GRANTED.

FACTS

Pierre Taylor began working full-time for the Postal Service in 1981. (Dkt. Nos. 90 83: Taylor Potter 56.1 Stmts. ¶ 1; Dkt. No. 87: Normand Aff. Ex. B: Taylor Dep. at 22, 24.) From 1991 to 1998, Taylor worked at the Bowling Green Station Post Office in New York City as a distribution clerk responsible for dispatching, which includes receiving, loading, and unloading trucks. (Taylor Potter 56.1 Stmts. ¶¶ 2-3; Taylor Dep. at 33-35.) The June 18, 1997 Incident and Taylor's Suspension

On June 18, 1997, Taylor was assigned to work the night shift at the Bowling Green Station. (Taylor Potter 56.1 Stmts. ¶ 4; Taylor Dep. at 140.) At the start of that shift, no regular supervisor was present. (Taylor Potter 56.1 Stmts. ¶ 5; Taylor Dep. at 69.)

When Robin Carretta, a letter carrier at Bowling Green Station, arrived for work around 10 p.m. on June 18, she was telephoned by either a station manager or a supervisor who informed her that she was the acting supervisor until another supervisor arrived at around 5:00 or 6:00 a.m. the next morning. (Taylor Potter 56.1 Stmts. ¶ 6; Normand Aff. Ex. H: Carretta Dep. at 18, 22-23.) This was the first time Carretta had been an acting supervisor at Bowling Green Station. (Taylor 56.1 Stmt. ¶ 6; Carretta Dep. at 24.) Taylor did not know that Carretta was asked to serve as an acting supervisor. (Taylor 56.1 Stmt. ¶ 6; see also Taylor Dep. at 69: "No one was in charge. . . . There were no supervisors there.")

Taylor "clocked in" for work at 11:07 p.m., clocked out at 12:33 a.m., and went outside.¹ (Taylor Potter 56.1 Stmts. ¶¶ 7-8; Taylor Dep. at 68; Kalman Aff. Ex. K.) Taylor went outside "waiting for a supervisor to arrive to inform the supervisor that he was ill and unable to work." (Taylor 56.1 Stmt. ¶ 11; Taylor Dep. at 68.) While Taylor was outside, sanitation workers and postal police rang the doorbell in the basement dispatch area. (Taylor Potter 56.1 Stmts. ¶ 9; Carretta Dep. at 22, 25, 27, 35.) Carretta had expected Taylor to open the door, and she paged Taylor several times over the intercom. (Taylor Potter 56.1 Stmts. ¶ 10; Carretta Dep. at 22, 35.) Because Taylor did not open the door, Carretta had to leave the work floor and go downstairs to do so. (Taylor Potter 56.1 Stmts. ¶ 12.)

1 Taylor does not dispute the time at which he clocked in, but as to all "clock rings" references, responds that Taylor's guardian and its counsel "cannot fully understand the information contained in said `clock rings' documents and requires further discovery in order to understand said documents." (Taylor 56.1 Stmt. ¶ 7 n. 1.) The Postal Service maintains that it "provided the Guardian's counsel with a time conversion table, a pay period charge, and annotated sample clock rings, as well as definitions of the principal codes contained in the clock rings. (Dkt. No. 95: Potter Reply Br. at 13 n. 12, citing Dkt. No. 94: Normand Supp. Aff. ¶ 18 Ex. K.) The U.S.P.S. contends that it also "offered on more than one occasion to provide, upon written request, definitions of any codes or abbreviations contained in the clock rings." (Potter Reply Br. at 13 n. 12, citing Normand Supp. Aff. ¶¶ 16-19 Ex. L.) The U.S.P.S. further notes that its summary judgment papers included a "Clock Ring Key" that explained the various clock ring codes. (Potter Reply Br. at 13 n. 12, citing Dkt. No. 85: Kalman Aff. ¶ 12 Ex. I.) In any event, the Court notes that Taylor's discovery period had long-since ended before the guardian was appointed, and the Court refused the guardian's request to broadly reopen discovery. (See pages 18-19 below.)

When Taylor eventually came back inside, he and Caretta "got into a verbal dispute." (Taylor Potter 56.1 Stmts. ¶ 13; Carretta Dep. at 28-29; Taylor Dep. at 77-79.) Carretta states that during the dispute she asked Taylor "why" he was absent from his work station, although Taylor states that Carretta asked "where" he was. (Taylor Potter 56.1 Stmt. ¶ 14; Carretta Dep. at 28-29; Taylor Dep. at 77-79.) According to Taylor, when he entered the building, Carretta approached him, yelling, "`Taylor, where the fuck you been? I been looking all over for your fucking ass. I been paging you for 40 minutes. I'm not doing your motherfucking job. Go downstairs. I'm taking you off the clock for 40 minutes." (Taylor 56.1 Stmt. ¶ 14; Taylor Dep. at 78.) Taylor asked Carretta "[w]ho died and left her in charge," said that he did not have to listen to her, and might have called her "stupid." (Taylor Potter 56.1 Stmts. ¶¶ 15-16; Taylor Dep. at 78-79.) Taylor got upset and raised his voice — according to Taylor, so Carretta could hear him over her own yelling. (Taylor Potter 56.1 Stmts. ¶ 18; Taylor Dep. at 78.) While standing four or five feet away from Carretta, Taylor also "very possibl[y]" used profanity when speaking to a co-worker, Alan Negron, about Caretta, who heard his comments to Negron. (Taylor Potter 56.1 Stmts. ¶ 16; Taylor Dep. at 79, 95, 101-03; Dkt. No. 87: Normand Aff. Ex. V: Negron Stmt.) Taylor admits that he might have talked with his hands or put his hands on his head during the dispute. (Taylor Potter 56.1 Stmts. ¶ 17; Taylor Dep. at 80-81.)

Carretta called the postal police because of the dispute. (Taylor Potter 56.1 Stmts. ¶ 20; Taylor Dep. at 78.) When the postal police — two of whom were African American — arrived, Carretta told them that she was acting supervisor and asked that they remove Taylor because he was "`menacing her after she questioned why he was away from his work station for 45 minutes.'" (Taylor Potter 56.1 Stmts. ¶¶ 20-21; Dkt. No. 84: Eichenauer Aff. Ex. A: 6/18/97 Incident Rpt.) The postal police took statements from Carretta, Taylor, and another Bowling Green Station employee, Richard Lewis. (Taylor Potter 56.1 Stmts. ¶ 22; Eichenauer Aff. ¶ 9 Exs. B-D.)

Carretta's written statement reported that Taylor "made threatening gestures, yelled and cursed at her, and repeatedly ignored her request to return to his work station." (Taylor Potter 56.1 Stmt. ¶ 23; Eichenauer Aff. Ex. B: Carretta Stmt.) Lewis' statement corroborates Carretta's account that Taylor "got upset and started to shout at Carretta," but also notes that Lewis did not witness the entire dispute. (Taylor Potter 56.1 Stmts. ¶ 24; Eichenauer Aff. Ex. C: Lewis Stmt.) Taylor told the postal police that he "`never stated anything to Robin [Carretta] except that no one to [his] knowledge . . . put her in charge.'" (Taylor Potter 56.1 Stmts. ¶ 26; Eichenauer Aff. Ex. D: Taylor Stmt.; Taylor Dep. at 115.) Around 2:30 a.m., after taking the statements, the postal police escorted Taylor out of Bowling Green Station and told him "`not to return until [the following day] when the regular [s]upervisor was on duty.'" (Taylor Potter 56.1 Stmts. ¶¶ 27-28; Eichenauer Aff. Ex. A: Carretta Stmt.; Taylor Dep. at 113.) Carretta did not refer to Taylor's race in any way during the incident. (Taylor Potter 56.1 Stmts. ¶ 41; Taylor Dep. at 134; Carretta Dep. at 88.)

Antonio Juan, a regular supervisor, began his shift at around 2:30 a.m. (Taylor Potter 56.1 Stmts. ¶ 29; Dkt. No. 85: Kalman Aff. Ex. K: 6/8/97 Shift Summ.) Juan was a new supervisor who had never supervised, met or spoken to Taylor. (Taylor Potter 56.1 Stmts. ¶¶ 30-31; Taylor Dep. at 105-06, 141-42.) Juan issued Taylor "a retroactive notice," in which the Bowling Green Station manager Ronald Hart concurred, stating that Taylor was "`suspended emergently without pay on 6/18/97, from 0250 to 0750 (balance of tour).'" (Taylor Potter 56.1 Stmts. ¶ 32, 34; Normand Aff. Ex. J: 6/18/97 Emergency Suspension Notice; Taylor Dep. at 146.) The suspension notice reads:

You engaged in an act of misconduct and it would be disruptive to day-to-day postal operations for you to remain in a duty status.

It appeared that your retention in an active duty status may have resulted in damages to government property or might have been detrimental to the interest of the government or injurious to you, your fellow workers, or the general public.

You have the right to file a grievance under the Grievance Arbitration Procedure . . . (Normand Aff. Ex. J: 6/18/97 Emergency Suspension Notice; Taylor Potter 56.1 Stmts. ¶¶ 32-34.) Taylor refused to sign for receipt of the Emergency Suspension Notice. (Normand Aff. Ex. J: 6/18/97 Emergency Suspension Notice at 2.) Taylor returned to work the following night and was given overtime hours on that date to make up for the time lost. (Taylor Potter 56.1 Stmts. ¶ 35.)

On June 19, 1997, Juan issued Taylor a "Notice of Suspension of 14 Days or Less," which stated:

You are hereby notified that you will be suspended for a period of 7 calendar days beginning on 9/6/97. You are to return to duty on 9/13/97. The reasons for this suspension are:

Charge #1 — Acting in an unsafe manner.

Charge #2 — Creating a disturbance on the workfloor.

At approximately 0130 hours you were asked by Robin Carretta where you had been for the last 40 minutes. She had been paging you because you were missing from the Dispatch Area and the Private Sanitation Co. and the Postal Police were trying to obtain entrance to the Station and you were not there to admit them. She then had to go to the deck and admit them. You responded to Ms. Carretta to mind her fucking business, that she was only a fucking clerk and you were advancing towards her raising your arms and hands and cursing at her.

Carrier Lewis heard this conversation and stated that you were very upset and [were] shouting at Ms. Carretta. He also states that she was requesting you to please return to your work area. Ms. Carretta warned you that if you didn't stop yelling and cursing that she was going to call the Postal Police and you responded "I don't give a fuck when you do; you're nothing but a stupid clerk."

The Postal Service has zero tolerance for acts of this kind and we will not ever have any of our employees abused by another co-worker.

You have a right to file a claim for Unemployment Insurance (after the effective date of this action) . . . You have a right to file a grievance under the General/Arbitration procedure . . .

(Normand Aff. Ex. K: 6/19/97 Notice of Suspension; Taylor 56.1 Stmts. ¶¶ 36-37, 39.) Juan's description of the incident is in agreement with Carretta's version of events.² (Taylor Potter 56.1 Stmts. ¶ 39; Norman Aff. Ex. K: 6/19/97 Notice of Suspension of 14 Days or Less; Eichenauer Aff. Exs. B-C.) The manager of the Wall Street Post Office, Kenneth Rodin, who is black, concurred in the Notice of Suspension. (Taylor Potter 56.1 Stmts. ¶ 38; Normand Aff. Ex. F: Thompson Dep. at 52; Taylor Dep. at 146-47.) Taylor refused to sign for receipt of the notice of suspension. (Normand Aff. Ex. K: 6/19/97 Notice of Suspension of 14 Days or Less, at 2.)

2 While Potter's 56.1 statement states that in the Notice of Suspension "Juan credited Carretta's version of the incident on June 18, 1997" (Potter 56.1 Stmt. ¶ 39), Taylor "disputes that there is evidence that Mr. Juan credited Ms. Carretta's version" but "does not dispute that the Notice of Disciplineessentially adopts Ms. Carretta's version of the incident" (Taylor 56.1 Stmt. ¶ 39, emphasis added). The Court finds this to be a distinction without a difference and certainly not a genuine issue of material fact sufficient to impede summary judgment.

Taylor does not dispute that Juan "was the supervisor who formally issued and signed the Notice of Suspension," but "submits that this disciplinary notice was issued at the instigation of Bowling Green Station Supervisor Gerald McCall . . . based on racially discriminatory and retaliatory motives." (Taylor 56.1 Stmt. ¶ 36; see also pages 14-16 below.) Although Taylor testified at his deposition that he believed Juan did not know that the statements in the notice of suspension were false, particularly because Juan had never supervised Taylor before and therefore had no reason to lie (Potter 56.1 Stmt. ¶ 40; Taylor Dep. at 105-06), Taylor's counsel "disputes that Mr. Taylor is competent to testify as to whether Mr. Juan knew the statements were untrue or whether Mr. Juan would have reason to lie." (Taylor 56.1 Stmt. ¶ 40.)

Prior to the June 18, 1997 incident, Taylor had filed EEOC complaints against Postal Service supervisors including Gerald McCall (see pages 14-15 below) in May 1986, February 1994, June 1996, and October 1996. (Dkt. No. 86: Sturman Aff. 5 Ex. A;see Taylor Potter 56.1 Stmts. ¶ 43.) None of these complaints involved Carretta or Juan. (Taylor Potter 56.1 Stmts. ¶ 42.)

It is undisputed that Taylor was permitted to work overtime after the incident, including 6.65 overtime hours on June 19, 1997. (Potter 56.1 Stmts. ¶¶ 35, 44; Taylor Dep. at 161; Kalman Aff. Ex. J: Taylor Clock Rings Summ.) On at least one occasion after June 18, Taylor declined to work overtime hours. (Taylor Potter 56.1 Stmts. ¶ 45.) The amount of overtime Taylor worked after the incident is disputed (Taylor 56.1 Stmt. ¶ 44), but Taylor does not specify how many hours of overtime he allegedly was denied. (See Dkt. No. 92: Taylor Br. at 29.)

Taylor disputes Potter's statement that Taylor "received a lunch break on each shift that he worked between June 18, 1997 and February 5, 1998" and that his lunch breaks averaged 30.24 minutes long. (Potter 56.1 Stmt. ¶ 46, Kalman Aff. Ex. J: Taylor Clock Rings Summ.) Taylor alleges that he was "regularly denied lunch breaks" during this period. (Taylor 56.1 Stmt. ¶¶ 46, 47; Taylor Dep. at 184-85.)

Taylor's Unapproved September Absence and the October 9, 1997 Notice of Removal

On September 17, 1997, Taylor was admitted to the emergency psychiatric unit of Kings County Hospital Center.³ (Taylor Potter 56.1 Stmts. ¶ 48; Normand Aff. Ex. W: 9/21/97 Psychiatric Eval.; Taylor Dep. at 255.) Taylor was absent from work without approved leave from September 22 to October 9, 1997. (Taylor Potter 56.1 Stmts. ¶ 49; Taylor Dep. at 255; Normand Aff. Ex. N: 10/9/97 Notice of Removal; Kalman Aff. Ex. J: Taylor Clock Rings Summ.) The Postal Service claims that it "did not know when or if [Taylor] would be returning to work.⁴ (Potter 56.1 Stmt. 50.)

3 Taylor has a history of mental illness dating back to 1978, including hearing "voices," and has been hospitalized for psychiatric care on several occasions. (Taylor Dep. at 396-405; Dkt. 88: Potter Br. at 10.) One of the voices Taylor heard after he was released from Kings County Hospital Center was supervisor "McCall harassing me, waking me up, disappearing." (Taylor Dep. at 414; Potter Br. at 11.) According to social worker Janet Rose, who the Crisis Intervention Center referred Taylor to after his hospitalization (Taylor 56.1 Stmt. ¶ 58), Taylor's psychosis included saying "that he feels that his boss and the people at his job were talking to and about him from the television . . . Primarily telling him he was dead." (Normand Aff. Ex. G: Rose Dep at 10-11).

4 The Postal Service concedes that it was notified on or about September 21, 1997 that Taylor was hospitalized. (Potter Br. at 11; Taylor Dep. at 255-57.)

On September 25, 1997, Postal Service supervisor Nicholas Ochlan sent Taylor a "NY Form P2-72 notice." (Taylor Potter 56.1 Stmts. ¶ 51; Normand Aff. Ex. L: 9/25/97 P2-72 notice.) The P2-72 notice "directed [Taylor] to report for duty at once or submit satisfactory evidence substantiating the cause of his absence." (Taylor Potter 56.1 Stmts. ¶ 53; Normand Aff. Ex. L.) The notice stated that if Taylor's absence was due to illness, he must "`submit a signed and dated medical certificate immediately on a doctor's letterhead indicating medical facts sufficient to support the period of incapacity, [the] date [Taylor could] return to duty, and whether [Taylor was] able to return to full duty.'" (Taylor Potter 56.1 Stmts. ¶ 54; Normand Aff. Ex. L.) The notice "specifically warned that "`[f]ailure to comply with the foregoing will result in disciplinary action being issued to remove you from the Postal Service.'" (Taylor Potter 56.1 Stmts. ¶ 55; Normand Aff. Ex. L.)

More than two weeks after issuing the P2-72 notice, Ochlan issued a notice of removal dated October 9, 1997. (Taylor Potter 56.1 Stmts. ¶ 58; Normand Aff. Ex. M: 10/9/97 Notice of Removal.) Taylor had not reported to work for more than two weeks, had not provided any medical evidence to substantiate his absence. (Taylor Potter 56.1 Stmts. ¶¶ 57, 61; Normand Aff. Ex. L: P2-72 Notice; Normand Aff. Ex. M: 10/9/97 Notice of Removal; Normand Aff. Ex. Z: 10/10/97 Rose Letter.) The notice of removal charges that Taylor was "continuously absent from his scheduled tour of duty without permission beginning on September 22, 1997" and "fail[ed] to comply with the P2-72 notice to submit satisfactory documentation of his absence." (Taylor Potter 56.1 Stmts. ¶ 59; Normand Aff. Ex. M: 10/9/97 Notice of Removal.) Taylor's seven-day suspension dated June 19, 1997 was considered as part of the discipline decision. (Taylor Potter 56.1 Stmts. ¶ 60; Normand Aff. Ex. M: 10/9/97 Notice of Removal.)

Taylor concedes that he received the P2-72 notice and that he understood that he was required to provide medical evidence that his absence was due to illness. (Taylor Potter 56.1 Stmts. ¶ 56; Taylor Dep. at 264, 271.) Taylor argues, however, that although the notice of removal is dated October 9, 1997, shop steward Shirley Thompson did not sign it until October 14, 1997. (Taylor 56.1 Stmt. ¶ 58; Normand Aff. Ex. M: 10/9/97 Notice of Removal at 2.) Between October 9 and October 14, Taylor asked Kings County Hospital social worker Janet Rose to provide a "doctor's note" to explain his absence. (Taylor 56.1 Stmt. ¶ 58; Rose Dep. at 22.) In an October 10, 1997 letter on Kings County Hospital letterhead, Rose wrote that Taylor "was `being seen in the Crisis Intervention Center since 9/24/97 to present' and that `[i]t is recommended that he does not return to work until after his re-evaluation in 3 weeks.'" (Taylor 56.1 Stmt. ¶ 58; Taylor Potter 56.1 Stmts. ¶ 63; Cogan Aff. Ex. Q: 10/10/97 Rose Letter.) It is undisputed that Rose's letter "was not signed by a physician, nor did it contain any medical facts or diagnosis." (Taylor Potter 56.1 Stmts. ¶ 63.) Taylor hand-delivered Rose's letter to the Postal Service on October 14, 1997. (Taylor Potter 56.1 Stmts. ¶ 62; Taylor 56.1 Stmt. ¶ 58; Dkt. 88: Potter Br. at 23 n. 13.) Taylor did not submit any other documentation about his absence. (Taylor Potter 56.1 Stmts. ¶ 62; Taylor Dep. at 258-59, 272-73.)

In addition, although Taylor is a veteran (Dkt. No. 90: Taylor 56.1 Stmt., Add'l Relevant Facts ¶ 25; Taylor Dep. at 18), the notice of removal classified Taylor's discipline as within the province of the "Non-Veteran Bargaining Unit." (Taylor 56.1 Stmt., Add'l Relevant Facts ¶ 24; Cogan Aff. Ex. O: 10/9/97 Notice of Removal.) McCall admitted that stations generally have records indicating which employees are veterans and that the supervisor administering discipline is responsible for determining whether an employee is a veteran. (Taylor 56.1 Stmt., Add'l Relevant Facts ¶ 26; Dkt. No. 87: Normand Aff. Ex. I: McCall Dep. at 106-07.) Taylor testified that he informed Ochlan and McCall that he was a veteran when he received the notice of removal, and that they "did nothing to correct the situation." (Taylor 56.1 Stmt., Add'l Relevant Facts ¶¶ 27, 34; Taylor Dep. at 254.) Thompson testified she was not aware that Taylor was a veteran and that Taylor never complained about his categorization as a non-veteran on the notice of removal. (Potter Reply Br. at 10 n. 9; Thompson Dep. at 67, 70-72.)

Thompson, Taylor's shop steward, filed a grievance on Taylor's behalf regarding the notice of removal. (Taylor Potter 56.1 Stmts. ¶ 64; Normand Aff. Ex. O: 10/25/97 Grievance Step 1 Summ.; Thompson Dep. at 64-65, 67-68.) Thompson requested that the disciplinary proceedings be delayed because she had been unable to reach Taylor, but her request was denied. (Taylor 56.1 Stmt. Add'l Relevant Facts ¶ 28-29; Cogan Aff. Ex. C: Thompson Dep. at 67.) Thompson settled the grievance with Ochlan by accepting a fourteen-day suspension on Taylor's behalf in lieu of removal.⁵ (Taylor Potter 56.1 Stmts. ¶ 65; Normand Aff. Ex. O: 10/25/97 Grievance Step 1 Summ.; Taylor 56.1 Stmt. Add'l Relevant Facts ¶ 29; Thompson Dep. at 64-65, 67-68.)⁶ Taylor's Tardiness and January 28, 1998 Notice of Removal

5 Taylor did not name Ochlan in any EEO complaint. (Taylor Potter 56.1 Stmts. ¶ 66; Taylor Dep. at 341-42.)

6 Taylor attempted to file an EEO complaint regarding the circumstances of his removal for continuous unapproved absence but was required instead to amend the one he had already initiated. (Taylor 56.1 Stmt. Add'l Relevant Facts ¶ 31; Taylor Dep. at 173-74, 289-93.)

It is undisputed that when Taylor returned to work at the Bowling Green Station on November 17, 1997, he was "tardy." (Taylor Potter 56.1 Stmts. ¶¶ 67-68; Kalman Aff. Ex. J: Taylor Clock Rings Summ.) On December 11, 1997, Taylor was thirty-two minutes late for work, because he fell asleep on the train. (Taylor Potter 56.1 Stmts. ¶ 69; Normand Aff. Ex. AA: 12/11/97 Request for or Notification of Absence.) On January 5, 1998, Taylor was twenty-six minutes late, claiming a delay in public transportation. (Taylor Potter 56.1 Stmts. ¶ 70; Normand Aff. Ex. BB: 1/5/98 Request for or Notification of Absence.) On January 13, 1998, Taylor was two hours and fifteen minutes late, claiming his medication caused him to oversleep. (Taylor Potter 56.1 Stmts. ¶ 71; Normand Aff. Ex. CC: 1/13/98 Request for or Notification of Absence.)⁷

7 Taylor was hospitalized again on January 15, 1998 for six days, resulting in an eight-day absence from work. (Dkt. No. 88: Potter Br. at 14; Normand Aff. Ex. DD: 1/20/98 Dept. of Veterans Affairs Memo; Kalman Aff. Ex. J: Taylor Clock Rings Summ.) Taylor worked again from January 27 through February 4, 1998, and was readmitted to the hospital on February 16, 1998 for about thirty days. (Potter Br. at 14; Norman Aff. Ex. EE: 3/13/97 Dept. of Veterans Affairs Memo.) Taylor subsequently retired and receives a disability pension from the Postal Service. (Potter Br. at 14; Taylor Dep. at 14.)

On January 21, 1998, Ochlan issued Taylor a second notice of removal on grounds of "excessive tardiness." (Taylor Potter 56.1 Stmts. ¶¶ 72-73; Normand Aff. Ex. P: 1/21/98 Notice of Removal; McCall Dep. at 135.) Like the October 1997 notice of removal, the January 21, 1998 notice of removal provided that Taylor should receive "Non-Veteran Bargaining Unit" treatment. (Taylor 56.1 Stmt. Add'l Relevant Facts ¶ 33; Normand Aff. Ex. P: 1/21/98 Notice of Removal.)

Taylor argues that the second notice of removal was issued "out of retaliatory animus on the part of both Messrs. McCall and Ochlan, against whom Mr. Taylor had engaged in protected EEO activity after being suspended for continuous A.W.O.L. despite the Rose Letter submitted to Mr. McCall by Mr. Taylor on or before October 14, 1997." (Taylor 56.1 Stmt. ¶ 73; Cogan Aff. Ex. R: 12/10/97 Info. for Precompl. Counseling form; Taylor Dep. at 173-74, 289-93.)

Thompson filed a grievance on Taylor's behalf regarding the January 21, 1998 notice of removal. (Taylor Potter 56.1 Stmts. ¶ 75; Normand Aff. Ex. Q: 1/29/98 Grievance Step 1 Summ.) Once again, Thompson settled the grievance with Ochlan by reducing the notice of removal to a fourteen-day suspension. (Taylor Potter 56.1 Stmts. ¶ 76; Normand Aff. Ex. Q: 1/29/98 Grievance Step 1 Summ.) According to Taylor, supervisor Gerald McCall attended the Step 1 meeting and "coerced Mr. Taylor to accept another two-week suspension by telling him that he would be removed if he did not accept the deal," and that he agreed as a result." (Taylor 56.1 Stmt. ¶ 76; Taylor Dep. at 314.) Taylor's Allegations about McCall

Taylor alleges that Bowling Green Station supervisor Gerald McCall was "well known" for his "racial animus." (Taylor 56.1 Stmt. Add'l Relevant Facts ¶ 1; Dkt. No. 91: Cogan Aff. Ex. A: Lewis Dep. at 58; Cogan Ex. B: Taylor Dep. at 349, 379; Cogan Ex. C: Thompson Dep. at 111-12.)

In October 1996, Taylor filed an EEO complaint against McCall charging that McCall discriminated against Taylor based on his race by denying Taylor lunch breaks. (Taylor 56.1 Stmt., Add'l Relevant Facts ¶ 1; Cogan Aff. Ex. E: Anderson Aff. Ex. 10: Prior Protected EEO Activity.) McCall was aware of Taylor's complaint. (Normand Aff. Ex. I: McCall Dep. at 100.)

Taylor alleges that when McCall arrived at Bowling Green Station on June 19, 1997 and learned of Taylor's dispute with Carretta the prior day, McCall "attempted to solicit false statements from several of Mr. Taylor's co-workers, including Alan Negron . . ., Michelle Gambrell and Patricia Mitchell, indicating that management had, prior to the June 18, 1997 verbal exchange, told all Bowling Green Station employees that, in the absence of any regular supervisors, Ms. Carretta was in charge." (Taylor 56.1 Stmt. Add'l Relevant Facts ¶ 11; Taylor Dep. at 118-19.) McCall also asked Negron, who witnessed the entire incident, for his account. (Taylor 56.1 Stmt. Add'l Relevant Facts ¶ 12; Cogan Aff. Ex. I: Negron Dep. at 20-24.) According to Negron's written statement of events, when he and Taylor re-entered the building and reached the work floor

Carretta started yelling and cursing at Mr. Taylor. . . . Mr. Taylor told her that he did not have to listen to her because she is not in charge. . . . Ms. Carretta demanded Mr. Taylor return to his work area, this time telling Mr. Taylor that she was going to call the Postal Police. I told Taylor not to argue with Ms. Carretta. Mr. Taylor turned to me and said I do not have to fucken [sic] listen to her. Then she said I am not afraid of him that she will call the Postal Police. At no time did I hear Mr. Taylor yell or curse at Ms. Carretta.

(Cogan Aff. Ex. J: Negron Stmt.) Taylor alleges that because of McCall's prejudice, Negron's version of events "was not considered — or was inexplicably rejected — when the disciplinary notice was issued." (Taylor 56.1 Stmt. Add'l Relevant Facts ¶ 15.)

After Taylor was disciplined for the June 18 incident (see pages 5-7 above), Taylor initiated a second EEO complaint against McCall on June 25, 1997. (Taylor 56.1 Stmt., Add'l Relevant Facts ¶ 16; Cogan Aff. Ex. L: 6/25/97 Info. for Precompl. Counseling form.) On this form, Taylor stated that "McCall effectuated a mean, cold, malicious attemp[t] to get [Taylor] fired" and that since June 23, 1997, "McCall has been very very mean to" Taylor. (Taylor 56.1 Stmt., Add'l Relevant Facts ¶ 17; Cogan Aff. Ex. L: 6/25/97 Info. for Precompl. Counseling form.) Taylor filed a formal EEO Complaint on September 6, 1997, charging McCall and Juan with discrimination in connection with the June 18, 1997 incident and retaliation based on his earlier EEO complaint against McCall. (Taylor 56.1 Stmt. Add'l Relevant Facts ¶ 18; Cogan Aff. Ex. M: 9/6/97 EEOC Compl.)

Shop steward Thompson testified that McCall was effectively "the supervisor in charge of all the supervisors, so everything going on he got into." (Taylor 56.1 Stmt. Add'l Relevant Facts ¶¶ 2-3; Thompson Dep. at 20, 34-35.) According to Bowling Green Station employee Richard Lewis, "[a]nybody that works there" was aware of McCall's "derogatory and racist statements on the floor especially towards Blacks. Calling us `worthless pieces of shit.'" (Normand Aff. Ex. D: Lewis Dep. at 58.) Lewis conceded that McCall would use derogatory terms like this for anyone he did not like, regardless of race. (Lewis Dep. at 58.) According to Thompson, a black female, if she went "into Bowling Green [Station] right now, if we have twenty black and Hispanic employees, I could get eighteen of them to sign a statement saying that [McCall] is a racist." (Normand Aff. Ex. F: Thompson Dep. at 111-12.) As an example, Thompson stated that if two white people were having a conversation at the station, McCall would come over and join the conversation, but if Thompson and another minority employee were talking, when McCall walked over "the first thing he would say was, `You are not working. Why are you talking?' And the reason he would say it to me is because I am black. Point blank." (Thompson Dep. at 112.)

Nevertheless, Thompson testified that the suspensions and notices of removal were not issued to Taylor due to his race. (Thompson Dep. at 112.) Rather, "there [are] rules for attendance [and] for lateness, and they basically follow the guidelines and the rules. I am not saying that someone else could have had more [instances of lateness or absence] than [Taylor] and wasn't bothered or issued some discipline. But basically they do adhere to the rules and guidelines." (Thompson Dep. at 112-13.) Based on Thompson's experience, she stated that the disciplines Taylor received "are within the guidelines." (Thompson Dep. at 113.)

Procedural Background

Taylor filed this suit in July 1999. (Dkt. No. 2: Compl.) During discovery, the Postal Service became aware of Taylor's mental illness (when Taylor at his deposition said that he was hearing voices) and moved under Fed.R.Civ.P. 17(c) for appointment of a guardian ad litem for Taylor. See Taylor v.Potter, No. 02-6049, 56 Fed. Appx. 48, 48, 2003 WL 430521 at *1 (2d Cir. Feb. 21, 2003). At a hearing, this Court asked Taylor whether he wanted a guardian, Taylor stated that he did, and the Court suggested that Taylor apply to the New York state court for appointment of a general guardian, adjourning this case for six months for that purpose. Id. In June 2001, Taylor informed the Court that his sister Melissa Taylor had been appointed his guardian and submitted an order from Kings County Supreme Court appearing to state that Taylor consented to his sister's appointment as guardian and that the state court required her to obtain counsel. Id. After several adjournments to allow Taylor's sister more time to obtain counsel, the Court granted a final adjournment for Ms. Taylor to obtain counsel. Id. (See also Dkt. No. 44: 11/20/01 Order.) On November 27, 2001, Ms. Taylor filed a motion "`to re-establish and re-acknowledge [Taylor's] legal right to proceed'" pro se, asserting that her brother no longer needed a guardian, but she did not provide any evidence that the state court had changed her status as Taylor's guardian or the requirement that she retain counsel. Taylor v. Potter, 2003 WL 430521 at *1. On January 11, 2002, this Court dismissed Taylor's complaint with prejudice for failure to obtain counsel. Id. at *2. (See also Dkt. No. 48: 1/9/02 Order.) This Court explained that a guardian generally cannot represent her ward without legal representation (and specifically could not in this case because of the state court order), that Ms. Taylor had a considerable amount of time to obtain counsel and had been warned that failure to obtain counsel would result in dismissal. Taylor v. Potter, 2003 WL 430521 at *2. Taylor appealed to the Second Circuit. Id.

Ms. Taylor's status as her brother's guardian became suspect during oral argument, and the U.S.P.S. subsequently advised the Second Circuit that "according to the chambers of New York Supreme Court Judge before whom Ms. Taylor appeared, the judge never signed the proposed order appointing Ms. Taylor as [Taylor's] guardian, and, moreover, the signature on the order submitted by [Taylor] was not the signature of the judge." Id. The U.S.P.S. also learned that Ms. Taylor had moved in the state court to withdraw her guardianship position. Id.

On February 21, 2003, the Second Circuit remanded the action "to determine whether [Taylor] has, in fact, been adjudicated incompetent by the state court; whether any person has been appointed to serve as his guardian; and whether that guardianship appointment remains in force." Taylor v. Potter, 2003 WL 430521 at *2.

In accordance with the Second Circuit's mandate, after a report from the government's psychiatrist, on September 10, 2003 this Court appointed Thomas W. Pippert, Esq., a partner at the law firm of Patterson, Belknap, Webb Tyler, to serve as special guardian at litem for Taylor for purposes of this litigation only. (Dkt. No. 70: 9/10/03 Order.) David Ichel, a partner at the law firm of Simpson Thacher Bartlett LLP, was appointed as counsel to the guardian (and thereby indirectly as counsel for Taylor). (Id.) Both the guardian and counsel had agreed to take this matter on a pro bono basis (for which the Court is grateful).⁸

8 The Court thanks Mr. Pippert and Mr. Ichel and their law firms for accepting this pro bono assignment and for the high quality of the papers that they submitted on Taylor's behalf.

At the time the issue of Taylor's competence to proceed arose (at the last session of his deposition when he said he was hearing voices), discovery was closed except for the conclusion of Taylor's deposition. Counsel for the guardian sought to reopen discovery. (Dkt. Nos. 73-76.) The Court denied a general reopening of discovery but allowed certain very limited discovery by the guardian's counsel. (See Dkt. Nos. 77, 79.) The pending summary judgment motion was filed thereafter (Dkt. Nos. 82-88), and was fully briefed as of May 2004 (see Dkt. Nos. 94-96.)⁹

9 The parties had consented to disposition of this action by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 18: 5/10/00 Consent to Proceed Form.)

ANALYSIS

I. LEGAL PRINCIPLES GOVERNING TITLE VII CASES ¹⁰ A. Summary Judgment Standards in Employment Discrimination Cases

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also, e.g., Celotex Corp. v.Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986);Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 So. Ct. 2505, 2509-10 (1986); Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000), cert. denied, 124 S.Ct. 53 (2003);Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).

The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment — here, defendant.See, e.g., Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53.

To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v.Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). Instead, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v.Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356; see also, e.g., Weinstock v. Columbia Univ., 224 F.3d at 41 (at summary judgment, "[t]he time has come . . . `to put up or shut up'") (citation omitted).

In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513.¹¹ The Court draws all inferences in favor of the non-moving party only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v.DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489 (1987). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM, 43 F.3d at 37.

11 See also, e.g., Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004); Chambers v. TRM, 43 F.3d at 36;Gallo v. Prudential, 22 F.3d at 1223.

In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510 (citation omitted); see also, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12.

When a case turns on the intent of one party, as employment discrimination claims often do, a "trial court must be cautious about granting summary judgment." Gallo v. Prudential, 22 F.3d at 1224.¹² Because the employer rarely leaves direct evidence of its discriminatory intent, the Court must carefully comb the available evidence in search of circumstantial proof to undercut the employer's explanations for its actions. E.g., Gallo v. Prudential, 22 F.3d at 1224. "[S]ummary judgment may not be granted simply because the court believes that the plaintiff will be unable to meet his or her burden of persuasion at trial. There must either be a lack of evidence in support of the plaintiff's position or the evidence must be so overwhelmingly tilted in one direction that any contrary finding would constitute clear error." Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998) (citations omitted). Nonetheless, when an employer provides convincing evidence to explain its conduct and the plaintiff's argument consists of purely conclusory allegations of discrimination, the Court may conclude that no material issue of fact exists and it may grant summary judgment to the employer. E.g., Budde v. HK Distrib. Co., No. 99-9449, 216 F.3d 1071 (table), 2000 WL 900204 at *1 (2d Cir. June 29, 2000); Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir. 1995). In other words, to defeat summary judgment, "the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Stern v. Trustees of Columbia Univ., 131 F.3d at 312; see, e.g., Schnabel v. Abramson, 232 F.3d 83, 90-91 (2d Cir. 2000); Weinstock v. Columbia Univ., 224 F.3d at 42 (The question on summary judgment is "whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, it is not enough . . . to disbelieve the employer; the factfinder must also believe the plaintiff's explanation of intentional discrimination.") (internal quotations alterations omitted);Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (plaintiff must "produce not simply `some' evidence, but `sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false, and that more likely than not [discrimination] was the real reason for the discharge'").¹³ Indeed, the Second Circuit "went out of [its] way to remind district courts that the `impression that summary judgment is unavailable to defendants in discrimination cases is unsupportable.'"Weinstock v. Columbia Univ., 224 F.3d at 41.

12 Accord, e.g., Feingold v. New York, 366 F.3d at 149; Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("in an employment discrimination case when, as here, the employer's intent is at issue, the trial court must be especially cautious about granting summary judgment"); McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997) ("caution must be exercised in granting summary judgment where motive is genuinely in issue"); Cardoza v. Healthfirst Inc., 98 Civ. 3050, 1999 WL 782546 at *1-2 (S.D.N.Y. Sept. 30, 1999); see also, e.g., Chambers v. TRM, 43 F.3d at 40.

13 See also, e.g., Budde v. HK Distrib. Co., 2000 WL 900204 at *1; Scaria v. Rubin, 94 Civ. 3333, 1996 WL 389250 at *5 (S.D.N.Y. July 11, 1996) (Peck, M.J.), aff'd, 117 F.3d 652, 654 (2d Cir. 1997).

B. Legal Principles Governing Title VII Actions

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against any individual "with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion,sex, or national origin." 42 U.S.C. § 2000e-2(a)(1) (emphasis added).

Under the familiar McDonnell Douglas burden-shifting analysis, the plaintiff has the burden at the outset of "proving by the preponderance of the evidence a prima facie case of discrimination." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093 (1981); see, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 2106 (2000); McDonnell Douglas Corp. v.Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973).¹⁴ Establishment of a prima facie case "`in effect creates a presumption that the employer unlawfully discriminated against the employee.'" St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 506, 113 S.Ct. at 2747 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094).¹⁵

14 See also, e.g., Raytheon Co. v. Hernandez, 124 So. Ct. 513, 517 n. 3 (2003); O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 310, 116 S.Ct. 1307, 1309 (1996);St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 2746-47 (1993); Mandell v. County of Suffolk, 316 F.3d 368, 377-78 (2d Cir. 2003); Mario v. PC Food Mkts., Inc., 313 F.3d 758, 767 (2d Cir. 2002); Collins v. New York City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002); Schnabel v.Abramson, 232 F.3d 83, 87 (2d Cir. 2000); Austin v. Ford Models, Inc., 149 F.3d 148, 152 (2d Cir. 1998), abrogated on other grounds by Swierkiewicz v. Soreona N.A., 534 U.S. 506, 122 S.Ct. 992 (2002); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).

15 See also, e.g., Mandell v. County of Suffolk, 316 F.3d at 380; Mario v. PC Food Mkts., Inc., 313 F.3d at 767;Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir. 1997).

Once a plaintiff claiming employment discrimination establishes a prima facie case, the burden shifts to the defendant to rebut the presumption of discrimination by articulating a legitimate, non-discriminatory reason for its employment decision. E.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 142-43, 120 S.Ct. at 2106;McDonnell Douglas Corp. v. Green, 411 U.S. at 802, 93 S.Ct. at 1824.¹⁶ The burden on the defendant at this phase is one of production rather than persuasion. E.g., Reeves v.Sanderson Plumbing Prods., Inc., 530 U.S. at 142, 120 S.Ct. at 2106.¹⁷

16 See also, e.g., Raytheon Co. v. Hernandez, 124 So. Ct. at 517 n. 3; O'Connor v. Consolidated Coin, 517 U.S. at 310, 116 S.Ct. at 1309; St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 506-07, 113 S.Ct. at 2747; Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 253-54, 101 S.Ct. at 1093-94;Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004);Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003);Mandell v. County of Suffolk, 316 F.3d at 380; Mario v.PC Food Mkts., Inc., 313 F.3d at 767; Schnabel v.Abramson, 232 F.3d at 88; Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000); Austin v. Ford Models, Inc., 149 F.3d at 152; Stein v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); Scaria v. Rubin, 117 F.3d at 654;Chambers v. TRM, 43 F.3d at 38.

17 See also, e.g., St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 507, 113 S.Ct. at 2747; Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 257, 101 S.Ct. at 1096;Terry v. Ashcroft, 336 F.2d at 144 n. 17; Austin v. Ford Models, Inc., 149 F.3d at 153; Scaria v. Rubin, 117 F.3d at 654.

"Although intermediate evidentiary burdens shift back and forth under [the McDonnell Douglas] framework, `[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 143, 120 S.Ct. at 2106.

If the defendant articulates a non-discriminatory reason, theMcDonnell Douglas burden-shifting framework drops out of the picture. E.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 142-43, 120 S.Ct. at 2106.¹⁸ "Moreover, although the presumption of discrimination `drops out of the picture' once the defendant meets its burden of production, . . . the trier of fact may still consider the evidence establishing the plaintiff's prima facie case `and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 143, 120 S.Ct. at 2106 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 255 n. 10, 101 S.Ct. at 1095 n. 10).

18 See also, e.g., Raytheon Co. v. Hernandez, 124 So. Ct. at 517 n. 3; St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 510, 113 S.Ct. at 2749; Texas Dep't of Cmty. Affairs v.Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94; Feingold v.New York, 366 F.3d at 152; Mandell v. County of Suffolk, 316 F.3d at 380-81; Mario v. PC Food Mkts., Inc., 313 F.3d at 767; Weinstock v. Columbia Univ., 224 F.3d at 42; Scaria v. Rubin, 117 F.3d at 654.

The Supreme Court in 2000 clarified the standard at this stage of the McDonnell Douglas analysis:

[I]n St. Mary's Honor Center. . . . we held that the factfinder's rejection of the employer's legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff. The ultimate question is whether the employer intentionally discriminated, and proof that "the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct." In other words, "[i]t is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination."

In reaching this conclusion, however, we reasoned that it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation. . . .

Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as "affirmative evidence of guilt." Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.

This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury's finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. To hold otherwise would be effectively to insulate an entire category of employment discrimination cases from review under Rule 50 [or Rule 56], and we have reiterated that trial courts should not "`treat discrimination differently from other ultimate questions of fact.'"

Whether judgment as a matter of law [or summary judgment] is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 146-49, 120 S.Ct. at 2108-09 (emphasis added citations omitted).

After Reeves, the Second Circuit has made clear that merely proving a prima facie case and disproving the employer's explanation for its conduct at the third step of the McDonnell Douglas analysis will not preclude summary judgment in all cases; rather, a case-by-case analysis is necessary:

In examining the impact of Reeves on our precedents, we conclude that Reeves prevents courts from imposing a per se rule requiring in all instances that a [Title VII] claimant offer more than a prima facie case and evidence of pretext. . . . But the converse is not true; following Reeves, we decline to hold that no [Title VII] defendant may succeed on a summary judgment motion so long as the plaintiff has established a prima facie case and presented evidence of pretext. Rather, we hold that the Supreme Court's decision in Reeves clearly mandates a case-by-case approach, with a court examining the entire record to determine whether the plaintiff could satisfy his "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff."

Schnabel v. Abramson, 232 F.3d at 90 (emphasis added).¹⁹

19 See also, e.g., Feingold v. New York, 366 F.3d at 152; Roge v. NYP Holdings, Inc., 257 F.3d 164, 167-68 (2d Cir. 2001); Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 469-70 (2d Cir.), cert. denied, 534 U.S. 993, 122 S.Ct. 460 (2001); James v. New York Racing Ass'n, 233 F.3d 149, 156-57 (2d Cir. 2000); Weinstock v. Columbia Univ., 224 F.3d at 42 ("In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination."); Aksamit v. 772 Park Avenue Corp., 00 Civ. 5520, 2003 WL 22283813 at *6 (S.D.N.Y. Oct. 2, 2003) ("[A] plaintiff's establishment of a prima facie case and rebuttal of a nondiscriminatory reason for the adverse action do not save the plaintiff from summary judgment when there is insufficient evidence of discrimination."); Weiser v. Forest Pharm., Inc., 99 Civ. 1809, 2001 WL 293951 at *7-8 (S.D.N.Y. Mar. 26, 2001);Tanay v. Saint Barnabas Hosp., 99 Civ. 9215, 2001 WL 262695 at *4 (S.D.N.Y. Mar. 15, 2001); Bennett v. Watson, Wyatt Co., 136 F. Supp.2d 236, 245 (S.D.N.Y.), reconsideration denied, 156 F. Supp.2d 270 (S.D.N.Y. May 18, 2001), aff'd in part, appeal dismissed on other grounds, No. 01-7772, 51 Fed. Appx. 55, 2002 WL 31628399 (2d Cir. Nov. 21, 2002); Connell v.Consolidated Edison Co., 109 F. Supp.2d 202, 207-08 (S.D.N.Y. 2000) (Chin, D.J.) ("The key is whether there is sufficient evidence in the record — whether it consists of just the prima facie case and proof of pretext alone or those items together with additional evidence — to support an inference of discrimination.").

Indeed, the Second Circuit and District Court decisions within the Circuit continue to grant summary judgment to defendants in appropriate cases at the final McDonnell Douglas step, even after Reeves. ²⁰ II. TAYLOR HAS NOT PROVED DISCRIMINATION BY SUPERVISOR McCALL ²¹

20 E.g., Molin v. Shapiro, No. 03-7045, 73 Fed. Appx. 511, 512, 2003 WL 22056217 at *1 (2d Cir. Sept. 4, 2003);Silverman v. City of New York, No. 02-9048, 64 Fed. Appx. 799, 801, 2003 WL 1970472 at *1 (2d Cir. Apr. 23, 2003);Tarshis v. Riese Org., No. 02-7570, 66 Fed. Appx. 238, 240, 2003 WL 1600154 at *1-2 (2d Cir. Mar. 27, 2003); Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d at 470; James v. New York Racing Ass'n, 233 F.3d at 157; Slatky v. Healthfirst, Inc., 02 Civ. 5182, 2003 WL 22705123 at *6 (S.D.N.Y. Nov. 17, 2003);Kulkarni v. City Univ. of New York, 01 Civ. 10628, 2002 WL 31886639 at *9 (S.D.N.Y. Dec. 27, 2002); Williams v. NYC Dep't of Sanitation, 2001 WL 1154627 at *12-19; Gonzalez v. New York City Transit Auth., 2001 WL 492448 at *12; Weiser v.Forest Pharm., Inc., 2001 WL 293951 at *8; Tanay v. Saint Barnabas Hosp., 2001 WL 262695 at *9; Bennett v. Watson, Wyatt Co., 136 F. Supp.2d at 249-50; Cobian v. New York City, 2000 WL 1782744 at *13; Austin v. Ford Models, Inc., 2000 WL 1752966 at *12-15; Trezza v. Dilenschneider Group, 99 Civ. 0185, 2000 WL 1702029 at *5-6 (S.D.N.Y. Nov. 14, 2000);Faldetta v. Lockheed Martin Corp., 98 Civ. 2614, 2000 WL 1682759 at *8-11 (S.D.N.Y. Nov. 9, 2000); Chudnovsky v.Prudential Sec., Inc., 98 Civ. 7753, 2000 WL 1576876 at *8 (S.D.N.Y. Oct. 23, 2000), aff'd, No. 00-9531, 51 Fed. Appx. 901, 2002 WL 31664452 (2d Cir. Nov. 20, 2002); Cousins v.Howell Corp., 113 F. Supp.2d 262, 268-69 (D. Conn. 2000);Ekwegablu v. Central Parking Sys., 97 Civ. 9477, 2000 WL 1371335 at *3-4 (S.D.N.Y. Sept. 22, 2000); Connell v.Consolidated Edison Co., 109 F. Supp. at 208-11; Lenhoff v.Getty, 97 Civ. 9458, 2000 WL 977900 at *5-6 (S.D.N.Y. July 17, 2000); Campbell v. Alliance Nat'l Inc., 107 F. Supp.2d 234, 251 n. 12 (S.D.N.Y. 2000).

21 As noted in defendant's reply brief, Taylor's opposition does not address his Title VII claims as to the June 18, 1997 emergency suspension, hostile environment, or unfair work assignments. (See Dkt. No. 95: Potter Reply Br. at 1 n. 1, citing Taylor Br. at 17-22, 31-35.) The Court agrees that the Postal Service is entitled to summary judgment on these claims.See, e.g., Diaz v. Weill Med. Ctr. of Cornell Univ., 02 Civ. 7380, 2004 WL 285947 at *20 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.) ( cases cited therein).

The Court assumes arguendo, without deciding, that as to all his claims of discrimination/retaliation, Taylor has made out a prima facie case. See, e.g., Dodson v. CBS Broadcasting Inc., 02 Civ. 9270, 2004 WL 1336231 *20 (S.D.N.Y. June 15, 2004) (Peck, M.J.); Economou v. Caldera, 99 Civ. 12117, 2000 WL 1844773 at *28 (S.D.N.Y. Dec. 18, 2000) (Peck, M.J.).

At the second McDonnell Douglas step, the Postal Service has articulated legitimate, non-discriminatory reasons for the suspensions: With respect to the June 1997 seven day suspension, Taylor's verbal altercation with acting supervisor Carretta (see pages 2-8 above); with respect to the October 1997 Notice of Removal and fourteen day suspension, Taylor's absence and failure to provide appropriate medical documentation (see pages 8-12 above and 43-46 below); and with respect to the January 28, 1998 Notice of Removal and two week suspension, Taylor's conceded lateness on three occasions (see pages 12-13 above and 46-48 below).

The issue before the Court on this summary judgment motion thus is whether Taylor has met his burden of showing pretext and unlawful discrimination at the third McDonnell Douglas step.

The "central basis" of Taylor's discrimination/retaliation claims is that supervisor Gerald McCall was a racist (and retaliator) who operated behind he scenes to cause other supervisors to discriminate against Taylor. (Dkt. No. 92: Taylor Br. at 1-5, 16-21; see also, e.g., Taylor Br. at 103-04, 131-33.) As Taylor's counsel explained:

The central basis for [all of] Mr. Taylor's claims is that Gerald McCall . . ., a supervisor at Bowling Green Station, exerted his power and influence over the other supervisors behind the scenes in order to inflict these suspensions on Mr. Taylor. . . . There is evidence . . . that Mr. McCall was well known at the Bowling Green Station for making racist remarks, and he made them directly to Mr. Taylor on occasion.

(Taylor Br. at 1; see also, e.g., Taylor Br. at 2: "McCall was the real discriminator [who] operated behind the scenes to discriminate against Mr. Taylor in connection with these disciplines.")

Because Taylor's claims essentially rise or fall on the "central basis" of McCall's alleged involvement and bias, the Court first examines that issue, and then turns to additional issues as to each of the three suspensions.

Taylor testified that he never heard McCall — or any other supervisor — refer to his race, except for one instance. (Dkt. No. 87: Normand Aff. Ex. B: Taylor Dep. at 378-79.) In that one instance, McCall held a meeting to discuss a problem he had with Taylor's job performance, and told Taylor that it "is going to be fair" because he had Taylor's "brother" at the meeting, referring to another black employee. (Taylor Dep. at 379.) Taylor admitted, however, that he himself referred at work to African American males as "brothers." (Taylor Dep. at 379.) Even if the term "brother" is interpreted as a racial epithet, the Court does not find that McCall's isolated, one-time use of the term in this context to be evidence of discrimination.²² E.g., Wilton v. City Cty. of San Francisco, No. 94-15116, 60 F.3d 836 (table), 1995 WL 398845 at *3 (9th Cir. July 7, 1995) ("Although [manager's] comments were crass . . ., they were isolated, and are insufficient to establish a hostile work environment. The one racial comment, [manager's] use of the word `brother' at some time over a year before the altercation, is not enough to create sufficient specific evidence to survive summary judgment. Stray remarks are insufficient to establish discrimination."); see, e.g., Viruet v. Citizen Advice Bureau, 01 Civ. 4594, 2002 WL 1880731 at *15 (S.D.N.Y. Aug. 15, 2002) (Peck, M.J.) ("Isolated incidents of discriminatory comments or conduct [are] not sufficient to establish a hostile work environment.") (citing cases); Adeniji v. Administration for Children Servs., 43 F. Supp.2d 407, 413 (S.D.N.Y. 1999) ("As Magistrate Judge Peck correctly points out, it is well-settled that one racial remark, or even sporadic remarks, are not sufficient to establish a hostile work environment."),aff'd, No. 99-7561, 201 F.3d 430 (table), 1999 WL 1070027 (2d Cir. Nov. 18, 1999).²³

22 The Court does not mean by this ruling that it would not be a problem if a white supervisor used other words about or to blacks that some blacks use among themselves — e.g., the Court has heard one black call another the "N word," but would find that use of that word by a white to a black employee was a racist remark.

23 See also, e.g., Atterberry v. Ikon Office Solutions, Inc., No. Civ. 302CV1490, 2003 WL 22937719 at *8 (D. Conn. Dec. 10, 2003) (Plaintiff failed to raise an inference of discrimination with only two alleged statements not bolstered by any other evidence of racial animus.) ( cases cited therein);Pagan v. New York State Div. of Parole, 98 Civ. 5840, 2003 WL 22723013 at *6 (S.D.N.Y. Nov. 18, 2003) ("Even if [defendant] called [plaintiff] a `fat Puerto Rican' twice rather than once, the series of [four] disparaging remarks attributed to him clearly does not amount to the sort of `extremely serious' behavior required to give rise to a hostile work environment under Title VII.") ( cases cited therein); Rinsler v. Sony Pictures Entm't, Inc., 02 Civ. 4096, 2003 WL 22015434 at *6 (S.D.N.Y. Aug. 25, 2003) (Single, stray remark, unsupported by any other evidence of discriminatory animus, did not create an inference of discrimination.) ( cases cited therein); Manessis v. New York City Dep't of Transp., 02 Civ. 359, 2003 WL 289969 at *6 (S.D.N.Y. Feb. 10, 2003) ("Single incidents, unless very serious, generally do not satisfy the necessary requirement of severity or pervasiveness."), aff'd, No. 03-7208, 2004 WL 206316 (2d Cir. Feb. 3, 2004).

Aside from Taylor's testimony above, the only other admissible evidence concerning McCall's racial animus proffered by Taylor are the depositions of Thompson and Lewis regarding McCall's "reputation" at the Bowling Green Station as a racist. (See pages 15-16 above.) Thompson testified to her belief that if she surveyed twenty black and Hispanic Bowling Green station employees, she "could get eighteen of them to sign a statement saying that [McCall] is a racist." (Dkt. No. 87: Normand Aff. Ex. F: Thompson Dep. at 111-12.) As an example of McCall's behavior, Thompson stated that if two white people were having a conversation at the station, McCall would come over and join the conversation, but if Thompson and another minority employee were talking, when McCall walked over "the first thing he would say was, `You are not working. Why are you talking?' And the reason he would say it to me is because I am black. Point blank." (Thompson Dep. at 112.) It appears that Thompson was using that as a hypothetical example, instead of describing something that actually had occurred. That is too vague to be considered by the Court as an actual example of discriminatory conduct. Moreover, and importantly, even Thompson — Taylor's shop steward — admitted that Taylor was not disciplined due to his race, but rather the disciplinary actions were "within the guidelines."

Lewis testified that "[a]nybody that works there" was aware of McCall's "derogatory and racist statements on the floor especially towards Blacks. Calling us `worthless pieces of shit.'" (Normand Aff. Ex. D: Lewis Dep. at 58.) Taylor similarly testified to McCall's calling black employees a "useless piece of shit." (Taylor Dep. at 383-89.) Both Lewis and Taylor conceded, however, that McCall directed his "piece of shit" comments not only to minorities, but to Caucasian employees he disliked. (Lewis Dep. at 58; Taylor Dep. at 384-85; see also pages 15-16 above.) Indeed, the Court notes that in his EEO precomplaint counseling form, Taylor said that McCall had been "very very mean" to Taylor. (Taylor 56.1 Stmt., Add'l Relevant Facts ¶ 17; Cogan Aff. Ex. L: 6/25/97 Info. for Precompl. Counseling Form.) While inappropriate, McCall's derogatory comments (or being "very very mean") made without distinction to employees' race are not actionable under Title VII. See, e.g., Bickerstaff v.Vassar College, 196 F.3d 435, 452 (2d Cir. 1999) ("While [superior's] alleged comments may be rude and derogatory, Title VII is not a `general civility code.'") (quoting Oncale v.Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 1002 (1998)), cert. denied, 530 U.S. 1242, 120 S.Ct. 2688 (2000); Williams v. NYC Dep't of Sanitation, 00 Civ. 7371, 2001 WL 1154627 at *15 (S.D.N.Y. Sept. 28, 2001) (Peck, M.J.) ("Of course, `unfair' treatment or personal animosity is not actionable, only discriminatory treatment is."); Gonzalez v.New York City Transit Auth., 00 Civ. 4293, 2001 WL 492448 at *14 (S.D.N.Y. May 9, 2001) (Peck, M.J.) (Plaintiff's "own allegations expressly claim that any disparate treatment was due, not to discrimination, but to personal and professional animosity."); Gorley v. MetroNorth, 99 Civ. 3240, 2000 WL 1876909 at *7 (S.D.N.Y. Dec. 22, 2000) ("Even if [plaintiff's supervisor] did harbor personal animosity against plaintiff . . . Title VII provides relief only for racial discrimination, not fickleness."), aff'd, No. 01-7100, 29 Fed. Appx. 764, 2002 WL 355909 (2d Cir. Mar. 6, 2002); Gibson v. Brown, No. 97-CV-3026, 1999 WL 1129052 at *12 (E.D.N.Y. Oct. 19, 1999) ("`Personal animosity is not the equivalent of . . . discrimination and is not proscribed by Title VII. The plaintiff cannot turn a personal feud into a . . . discrimination case by accusation.'"), aff'd, No. 99-6346, 242 F.3d 365 (table), 2000 WL 1843914 (2d Cir. Dec. 14, 2000); Baber v. Runyon, 97 Civ. 4798, 1998 WL 912065 at *7 (S.D.N.Y. Dec. 30, 1998) ("Personal animosity is not actionable discrimination."); see also, e.g., Booker v. Federal Reserve Bank, 01 Civ. 2290, 01 Civ. 2291, 2003 WL 1213148 at *13 (S.D.N.Y. Mar. 17, 2003) (Plaintiff provided insufficient evidence of discrimination in his evaluation and shift change where, inter alia, "both Caucasian and African-American officers received evaluations that were more critical than before" and "[t]he Bank rescheduled the shifts of both Booker and [a co-worker], who is Caucasian."); Hill v.Textron Auto. Interiors, Inc., 160 F. Supp.2d 179, 186 (D.N.H. 2001) ("As to the references to [plaintiff] as `brother,' [plaintiff] testified in his deposition that the term `brother' was used by fellow employees to refer to him as well as white co-workers. . . . Thus, there is no evidence that it was used in a derogatory, discriminatory, or offensive manner.").

Even assuming arguendo that Taylor's evidence shows that McCall was racially biased (which it does not), Taylor has shown no link to his suspensions. McCall did not complete (or sign as approver) any of the Notice of Suspension or Termination forms. (See pages 5-6, 9-10, 13 above.) While shop steward Thompson testified that McCall was effectively "the supervisor in charge of all the supervisors") (Taylor 56.1 Stmt., Add'l Relevant Facts ¶¶ 2-3; Thompson Dep. at 20, 34-35), Taylor presented no direct evidence that McCall was involved in the filing of any of the three disciplinary notices at issue. Rather, Taylor points to "circumstantial evidence that Mr. McCall was the driving force behind the decision to suspend Mr. Taylor" for seven days as a result of the June 1997 Carretta incident. (Dkt. No. 92: Taylor Br. at 2-3.) That "circumstantial evidence" is based on Taylor's testimony about what co-workers allegedly told him. Specifically, Taylor testified that Mr. Negron, Ms. Gambrell and other postal employees told him that McCall tried to get them to give statements that management had told everyone that in the event no supervisor was present, Caretta would be in charge. (Dkt. No. 87: Normand Aff. Ex. B: Taylor Dep. at 116-21; see also Taylor Br. at 7-8 n. 4, 18.) Taylor argues that McCall's efforts to "develop a false `case' for suspending Mr. Taylor" could allow a fact-finder to conclude he "directed Mr. Juan to issue the disciplinary notice to Mr. Taylor, and did so out of racial animus." (Taylor Br. at 19.)

Not only are there logic jumps in this argument, but there is no admissible evidence that these events took place — Taylor's testimony about what other employees allegedly told him is inadmissible hearsay. See, e.g., Howley v. Town of Stratford, 217 F.3d 141, 155 (2d Cir. 2000) (In Title VII action, "assertions made by [plaintiff] only on her information and belief, for example, would not be admissible through her at trial, for testimony as to facts must generally be based on the witness's personal knowledge. Nor would testimony by [plaintiff] that other firefighters told her of certain statements by [her supervisor] likely be admissible to prove that [her supervisor] actually made such statements, for her testimony offered for that purpose would be hearsay."); Sarno v. Douglas Elliman-Gibbons Ives, Inc., 183 F.3d 155, 160 (2d Cir. 1999) (In ADA action, plaintiff's "statement as to what he `was told' was hearsay that would not be admissible at trial. Since [plaintiff] provided no sworn statement from [the declarant], he failed to adduce any evidence sufficient to create a genuine issue to be tried . . ."); Gambrell v.National R.R. Passenger Corp., 01 Civ. 6433, 2003 WL 282182 at *7 (S.D.N.Y. Feb. 3, 2003) (Plaintiff in ADEA case alleging disparate treatment failed to make out a prima facie case where he learned about another worker's wrongdoing and discipline from other employees and plaintiff's testimony about the co-worker was therefore "inadmissible hearsay."); Cooper v. John D. Brush Co., 242 F. Supp.2d 261, 270 (W.D.N.Y. 2003) (Plaintiff in Title VII case failed to provide admissible evidence of supervisor's racist comments where "the only racial epithet of which plaintiff is aware is an alleged comment reported to him by another co-worker" and "plaintiff has not provided an affidavit from the co-worker who allegedly heard this statement.");Medina v. New York City Dep't of Parks Recreation, 01 Civ. 7847, 2002 WL 31812681 at *5 (S.D.N.Y. Dec. 12, 2002) (Plaintiff's "own deposition testimony that a woman in the payroll department named Denise told her that African Americans are paid less than `their positions require' . . . is inadmissible hearsay. A party resisting a motion for summary judgment must present admissible evidence in opposition to the motion.") (citing Sarno v. Douglas Elliman-Gibbons Ives, Inc., 183 F.3d at 160).

Contrary to Taylor's position (Dkt. No. 92: Taylor Br. at 8 n. 4; Dkt. No. 96: Taylor 5/13/04 Letter to Court at 2), Taylor's co-workers' statements do not fall within Federal Rule of Evidence 801(d)(2)(D)'s exception for statements made within the scope of the co-worker's employment.²⁴ Compare, e.g., Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1238 n. 1 (2d Cir. 1995) (Plaintiff's testimony that her supervisor told her that he was ordered to fire her by his supervisor who, he said, wanted a man in the job, was "admissible under Fed.R.Civ.P. 801(d)(2)(D) as a statement by an employee `concerning a matter within the scope of . . . employment.'");Lipton v. County of Orange, 315 F. Supp.2d 434, 448-50 (S.D.N.Y. Apr. 14, 2004) (In prisoner retaliatory transfer case, statements were related to corrections officers' duties and admissible under Fed.R.Civ.P. 801(d)(2)(D) to show decisionmaker's intent where declarant and fellow correction officers had a "`significant role in the . . . decision at issue' because they clearly were acting within the scope of their employment . . . in executing the order of" the corrections administrator; although they did not make "the transfer decision, their participation was instrumental in its execution and their statements are admissible against the [employer] under Rule 801(d)(2)(D).").

24 A statement is not hearsay if . . . offered against a party and is . . . (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship." Fed.R. Ev. 801(d)(2)(D).

As Judge Kaplan has explained:

The Second Circuit has not specifically addressed the precise issue whether a statement by a co-worker relating the alleged statement of a supervisor with decision-making authority concerns a matter within the scope of the co-worker's employment, although [Howley v. Town of Stratford, 217 F.3d 141, 155 (2d Cir. 2000)] held sub silentio that it does not. Other circuits to reach the issue, however, uniformly have determined that such statements are not within the scope of employment when the declarant neither is the plaintiff's supervisor nor has a significant role in the employment decision at issue. This approach dovetails with the more general principle, recognized in the Second Circuit, that statements regarding employment matters are within the scope of the declarant's employment if the declarant was "an advisor or other significant participant in the decision-making process that is the subject matter of the statement." Both are consistent with the hornbook notion that "not everything that relates to one's job falls within the scope of one's . . . employment" and that the statement at issue must be "related to the declarant's duties."

Evans v. Port Auth., 192 F. Supp.2d 247, 263-64 (S.D.N.Y. Apr. 5, 2002) (fns. citing cases omitted).

Here, Negron, Gambrell and the other unnamed co-workers were not supervisors or significant participants in the decisions to issue the Notices and suspensions. (See pages 4-6, 9-10, 13-14 above.) Because Taylor's co-worker's statements were not within the scope of the co-workers' employment, Taylor's own testimony as to his co-worker's statements is inadmissible hearsay. See, e.g., Patterson v. County of Oneida, 375 F.3d 206, 219, 223 (2d Cir. 2004) ("Rule 56(e)'s requirement that the affiant have personal knowledge and be competent to testify to the matters asserted in the affidavit also means that an affidavit's hearsay assertion that would not be admissible at trial if testified to by the affiant is insufficient to create a genuine issue for trial." Plaintiff proffered insufficient evidence of discrimination including a witness's statement that was inadmissible hearsay because "there was no submission of affidavits . . . by those affiants repeating or adopting their prior statements."); Amnesty America v. Town of West Hartford, 361 F.3d 113, 131 n. 12 (2d Cir. 2004) (District Court deciding summary judgment motion was free to disregard hearsay in affidavits because it would be inadmissible at trial.); Whidbee v. Garzarelli Food Specialities, Inc., 223 F.3d 62, 71 (2d Cir. 2000) ("Of course, while second-hand comments may be relevant [to a hostile work environment claim], a district court deciding a summary judgment motion must be provided with admissible evidence demonstrating the truth of the non-movant's assertions.");Ozenne v. University of Conn. Health Care, 292 F. Supp.2d 425, 434 (D. Conn. 2003) ("At her deposition, plaintiff stated that she learned of [her manager's] interference with her evaluations from [a third party]. . . . However, [the third party] did not submit an affidavit in support of plaintiff's claims. The court cannot consider hearsay statements in opposition to a motion for summary judgment.") (citing Sarno v. Douglas Elliman-GIbbons Ives, Inc., 183 F.3d at 160); Peterson v. Washington Cty. Dep't of Pub. Works, No. 1:00CV1092, 2002 WL 32344505 at *4 n. 6 (N.D.N.Y. Dec. 19, 2002) (If plaintiff learned of supervisor's statements from another individual who heard them, "Plaintiff may not rely on such inadmissible hearsay to defeat summary judgment. Of course, the testimony of the individual(s) who allegedly heard [the supervisor's] statements would be admissible, as those statements would not be offered for the truth of the matters asserted therein but only for the fact that [the supervisor] made them. Plaintiff, however, points to no affidavits, deposition testimony, or other admissible evidence by such individuals.") (citations omitted to cases includingHowley v. Town of Stratford, 217 F.3d at 155).

Thus, the "central basis" of Taylor's claims — that McCall was a racist who caused other supervisors to discipline Taylor — fails on two grounds: the evidence that McCall is racist (as opposed to equally "mean" to those he disliked, regardless of race) is virtually non-existent and, more importantly, Taylor's proffered "circumstantial evidence" of McCall's alleged his involvement in the disciplines is inadmissible hearsay. Without that causal link, Taylor's discrimination claims based on McCall fail.

The Court now turns to Taylor's retaliation (and remaining discrimination claims) as to each of the three specific disciplinary actions. III. TAYLOR HAS NOT PROVED DISCRIMINATION OR RETALIATION AS TO THE JUNE 1997, OCTOBER 1997 OR JANUARY 1998 DISCIPLINARY ACTIONS A. The June 1997 Seven-Day Suspension

Taylor does not claim that Carretta or Juan discriminated against him. (See pages 7, 14-16 above.) The Court already has discussed and rejected Taylor's claim that McCall discriminated against him. (See Point II above.) The Court will address Taylor's claim that the June 1997 seven day suspension was in retaliation for his prior EEO complaints. (Dkt. No. 92: Taylor Br. at 20-22.)

Title VII retaliation claims also are governed by theMcDonnell Douglas burden-shifting analysis. See, e.g., Feingold v. New York, 366 F.3d 138, 157 (2d Cir. 2004);Moss v. Enlarged City Sch. Dist., No. 03-7342, 81 Fed. Appx. 389, 390, 2003 WL 22849963 at *1 (2d Cir. Dec. 2, 2003); O'Hara v. Memorial Sloan-Kettering Cancer Ctr., No. 03-7049, 79 Fed. Appx. 471, 473, 2003 WL 22469710 at *2 (2d Cir. Oct. 31, 2003);Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003); Holtz v. Rockefeller Co., 258 F.3d 62, 79-81 (2d Cir. 2001);Slattery v. Swiss Reins. America Corp., 248 F.3d 87, 94 (2d Cir.), cert. denied, 534 U.S. 951, 122 S.Ct. 348 (2001);Raniola v. Bratton, 243 F.3d 610, 624-25 (2d Cir. 2001);Sotolongo v. New York City Transit Auth., No. 99-9195, 216 F.3d 1073 (table), 2000 WL 777958 at *2-3 (2d Cir. June 15, 2000); Dodson v. CBS, 02 Civ. 9270, 2004 WL 1336231 at *24 (S.D.N.Y. June 15, 2004) (Peck, M.J.).²⁵

25 See also, e.g., Diaz v. Weill Med. Ctr. of Cornell Univ., 02 Civ. 7380, 2004 WL 285947 at *21 n. 29 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.); Kennebrew v. New York Hous. Auth., 01 Civ. 1654, 2002 WL 265120 at *17 (S.D.N.Y. Feb. 26, 2002) (Peck, M.J.); Williams v. NYC Dep't of Sanitation, 00 Civ. 7371, 2001 WL 1154627 at *19-20 (S.D.N.Y. Sept. 28, 2001) (Peck, M.J.); Gonzalez v. New York City Transit Auth., 00 Civ. 4293, 2001 WL 492448 at *18 (S.D.N.Y. May 9, 2000) (Peck, M.J.); Economou v. Caldera, 99 Civ. 12117, 2000 WL 1844773 at *25 (S.D.N.Y. Dec. 18, 2000) (Peck, M.J.); Adeniji v.Administration for Children Servs., 43 F. Supp.2d 407, 428 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.), aff'd., No. 99-7561, 201 F.3d 430 (table), 1999 WL 1070027 (2d Cir. Nov. 18, 1999).

Under Title VII, it is unlawful for an employer to "retaliate" by discriminating against an employee because the employee engaged in protected activity, that is, "has opposed any practice made an unlawful employment practice by this subchapter, or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a).²⁶

26 Accord, e.g., Dodson v. CBS Broadcasting, Inc., 2004 WL 1336231 at *24; Diaz v. Weill Med. Ctr. of Cornell Univ., 2004 WL 285947 at *21; see, e.g., Terry v.Ashcroft, 336 F.3d 128, 140 (2d Cir. 2003); Minott v. Port Auth., 116 F. Supp.2d 513, 520, 524 (S.D.N.Y. 2000) ("Title VII defines protected activities as (1) an employee's opposition to any activity which is prohibited by Title VII, or (2) an employee's participation in any Title VII investigation or proceeding."); see also, e.g., Manoharan v. Columbia Univ. College of Physicians Surgeons, 842 F.2d 590, 593 (2d Cir. 1988) ("The objective of [the section prohibiting retaliation] is obviously to forbid an employer from retaliating against an employee because of the latter's opposition to an unlawful employment practice.").

"In order to make out a prima facie case of retaliation, a plaintiff must show by a preponderance of the evidence (i) participation in a protected activity known to the defendant; (ii) an employment action disadvantaging the plaintiff; and (iii) a causal connection between the protected activity and the adverse employment action." Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995), abrogated on other grounds by Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998).²⁷

27 Accord, e.g., Feingold v. New York, 366 F.3d at 156; Terry v. Ashcroft, 336 F.3d at 141; Jenkins v. Board of Educ., No. 02-7479, 64 Fed. Appx. 801, 804, 2003 WL 1970492 at *2 (2d Cir. Apr. 28, 2003); Mack v. Otis Elevator Co., 326 F.3d 116, 129 (2d Cir.), cert. denied, 124 S.Ct. 562 (2003);Holtz v. Rockefeller Co., 258 F.3d at 79; Slattery v.Swiss Reins. America Corp., 248 F.3d at 94; Gregory v.Daly, 243 F.3d 687, 700 (2d Cir. 2001); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996);Cosgrove v. Sears, Roebuck Co., 9 F.3d 1033, 1039 (2d Cir. 1993), cert. denied, 522 U.S. 1004, 118 S.Ct. 578 (1997);Kotcher v. Rosa Sullivan Appliance Ctr., Inc., 957 F.2d 59, 64 (2d Cir. 1992); see also, e.g., Dodson v. CBS Broadcasting, Inc., 2004 WL 1336231 at *24; Diaz v. Weill Med. Ctr. of Cornell Univ., 2004 WL 285947 at *21; Kennebrew v. New York Hous. Auth., 2002 WL 265120 at *17; Gonzalez v.New York City Transit Auth., 2001 WL 492448 at *18; Cobian v.New York City, 99 Civ. 10533, 2000 WL 1782744 at *16 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.) ( cases cited therein), aff'd, No. 01-7575, 2002 WL 4594 at *1 (2d Cir. Dec. 21, 2001); Adeniji v.Administration for Children Servs., 43 F. Supp.2d at 419.

The Second Circuit "has consistently held that proof of causation can be shown either: (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory actions directed against the plaintiff by the defendant." Gordon v.New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000);see also, e.g., Feingold v. New York, 366 F.3d at 156-157 ("[T]he requirement that [plaintiff] show a causal connection between his complaints and his termination is satisfied by the temporal proximity between the two.") (citing cases); Terry v.Ashcroft, 336 F.3d at 152; Raniola v. Bratton, 243 F.3d at 625; Dodson v. CBS Broadcasting, Inc., 2004 WL 1336231 at *24; Nonnenmann v. City of New York, 02 Civ. 10131, 2004 WL 1119648 at *22 (S.D.N.Y. May 20, 2004) (Peck, M.J.) ("`Causation can be established either indirectly by means of circumstantial evidence, for example, by showing that the protected activity was followed by adverse treatment in employment, or directly by evidence of retaliatory animus.'") (quoting Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999)).

First, none of Taylor's prior complaints involved Juan or Carretta and neither individual had ever supervised Taylor before June 18, 1997. (Taylor Dep. at 105-06, 141-42; see also pages 2, 5, 7-8 above.) Second, although Taylor's most recent EEO complaint involved McCall, that complaint was filed in October 1996 — approximately eight months before the June 18, 1997 incident and his subsequent suspension. (Dkt. No. 86: Sturman Aff. 5 Att.; Taylor Potter 56.1 Stmts. ¶ 43; see also page 14 above.) The Court finds that this eight-month gap is insufficient to establish a causal connection between Taylor's EEO complaint and his seven-day suspension after the June 18, 1997 incident. See, e.g., Clark County Sch. Dist. v.Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 1511 (2001) ("The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be `very close.'"); Gorman-Bakos v. Cornell Coop. Extension, 252 F.3d 545, 554-555 n. 5 (2d Cir. 2001) (The Second Circuit "has not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action.") (collecting cases); see also, e.g., Dodson v. CBS Broadcasting, Inc., 2004 WL 1336231 at *23 n. 27 ("[T]he eight months between [plaintiff's] complaint to [his supervisor] and his termination is not the `very close' proximity sufficient to raise an inference of causality."); Diaz v.Weill Med. Ctr. of Cornell Univ., 2004 WL 285947 at *22 n. 31 (finding no causation where six months elapsed between plaintiff's DHR complaint and her termination) ( cases cited therein).

Thus, as to the June 1997 seven day suspension, Taylor has not shown discrimination or retaliation. The Postal Service is entitled to summary judgment on Taylor's claims as to this incident.

B. The October 1997 Notice of Removal

"Taylor concedes that he did not attend work from September 22, 1997 to October 9, 1997 due to his hospitalization and subsequent treatment." (Dkt. No. 92: Taylor Br. at 23; see pages 9-10 above.) Taylor argues that he did submit medical documentation to substantiate his absence: a letter from Janet Rose, his social worker. (Taylor Br. at 23; see pages 10-11 above.) The U.S.P.S. argues the Notice of Removal was issued on October 9, 1997, a day before the Rose Letter was written. (Dkt. No. 88: Potter Br. at 23.) Shop Steward Thompson acknowledged receipt of the Rose Letter on October 14, 1997. (See page 10 above.) The Post Office admits that Taylor had delivered the Rose Letter as of October 14, 1997. (See page 11 above.)

Taylor argues that McCall made "a crucial admission" during his deposition when he stated that "he would normally give an employee who submitted insufficient medical documentation additional time to submit any necessary additional documentation." (Taylor Br. at 24, citing McCall Dep. at 131.) However, Taylor himself testified that McCall did not reject the Rose letter and refuse to give Taylor additional time. (Dkt. No. 95: Potter Reply Br. at 9 n. 8, citing Taylor Dep. at 262-63.) Rather, upon receiving the Rose Letter on October 14, McCall sent Taylor to the medical unit for an evaluation. (Potter Reply Br. at 9 n. 8, citing Taylor Dep. at 262-64.)

Taylor argues that the fact that Taylor filed an EEO complaint in September 1997 and received the notice of removal in October 1997 is a sufficient causal connection to raise an inference of retaliation. (Taylor Br. at 24-25.) The Postal Service's uncontradicted evidence of Taylor's absence, however, removes any such inference from the case, and Taylor has not presented any other evidence of retaliatory intent or retaliation. See, e.g., Curtis v. Citibank N.A., No. 02-7141, 70 Fed. Appx. 20, 22-23, 2003 WL 21511832 at *2 (2d Cir. June 27, 2003) (Upholding summary judgment for defendant. "The plaintiff's primary evidence of retaliation is the proximity in time of their discrimination complaints and the adverse actions. Although it is true that a discrimination claim may be supported with only circumstantial evidence, [defendant] presents an abundance of well-documented non-discriminatory explanations for the adverse actions, and the plaintiffs concede the facts underlying these explanations."); Shabazz-Allah v. Guard Mgmt. Serv., No. 99-7371, 201 F.3d 432 (table), 1999 WL 1012402 at *1 (2d Cir. Oct. 20, 1999) (Defendant "presented uncontradicted evidence of [plaintiff's] tardiness, unexcused absences from work and violations of company policy that establish a nondiscriminatory motive for discharge. Because [plaintiff] failed to rebut or contradict this evidence, he failed to establish a prima facie case and summary judgment was therefore proper."); Mack v.United States Postal Serv., No. 92-CV-0068, 1998 WL 546624 at *4 (E.D.N.Y. Aug. 26, 1998) ("The U.S.P.S. has presented ample evidence that [plaintiff] was suspended for legitimate, non-discriminatory reasons. The U.S.P.S. has included in its submissions various letters sent to [plaintiff] informing him that he was required to either return to work or submit medical documentation to explain his absence, and that if he failed to do so, disciplinary action would be taken. This rebuts the presumption of discrimination, which therefore drops from the case."), aff'd, No. 98-6242, 181 F.3d 83 (table), 1999 WL 314157 (2d Cir. May 14, 1999), cert. denied, 528 U.S. 914, 120 S.Ct. 267 (1999); see also, e.g., Porter v. New York Univ. School of Law, 99 Civ. 4693, 2003 WL 22004841 at *11 (S.D.N.Y. Aug. 25, 2003) (Plaintiff was terminated after approximately one month during which he "did not appear at work, explain his absence, or provide any new documentation to substantiate his claim for medical leave. Prolonged unexcused absence from work is obviously a legitimate, nondiscriminatory reason for termination.").

Taylor also highlights the fact that the October 1997 notice of removal (and January 1998 notice of removal) incorrectly list Taylor as having "Non-Veteran Bargaining Unit Status" (see pages 11, 13 above) and Taylor alleges that "[t]he Post Office's failure to treat Mr. Taylor as a veteran during this disciplinary process is further evidence that the proffered reason for the discipline was pretextual and that, in fact, it was issued out of discriminatory and/or retaliatory animus." (Taylor Br. at 26.) Taylor fails to explain how he was prejudiced by the mis-categorization. (See Potter Br. at 25-26 n. 14.) The mis-categorization had no impact on Taylor's grievance, as veteran status affects grievance appeal rights, while Taylor's grievances were settled and never appealed. (Potter Br. at 25 n. 14.)

The Court finds that in light of Taylor's unapproved absence since September 22, 1997, the Post Office issued its October 9, 1997 notice of removal for a legitimate, nondiscriminatory, non-retaliatory reason. The Postal Service is entitled to summary judgment on this claim.

C. The January 1998 Notice of Removal

Taylor claims that the January 21, 1998 notice of removal was issued "out of retaliatory animus on the part of both Messrs. McCall and Ochlan, against whom Mr. Taylor had engaged in protected EEO activity after being suspended for continuous A.W.O.L. despite the Rose Letter submitted to Mr. McCall by Mr. Taylor on or before October 14, 1997." (Taylor 56.1 Stmt. ¶ 73; Cogan Aff. Ex. R: 12/10/97 Info. for Precompl. Counseling form; Taylor Dep. at 173-74, 289-93.) Taylor's counsel concedes that "Mr. Taylor cannot, without further discovery, establish a prima facie case of discrimination in connection with the January 1998 Discipline." (Dkt. No. 92: Taylor Br. at 27 n. 1.)

Specifically, Taylor argues that the January 21, 1998 notice of removal was in retaliation for Taylor's filing of an "Information for Precomplaint Counseling" form that he submitted in an effort to file an additional EEO complaint against Ochlan and McCall for his October 1997 suspension. (See pages 12-13 n. 6 above.) Although the gap between Taylor's filing of this form and his notice of removal is somewhat close — approximately six weeks — Taylor's undisputed lateness alone is a sufficient reason for his removal and successfully rebuts Taylor's claim of pretext. See, e.g., Curtis v. Citibank N.A., No. 02-7141, 70 Fed. Appx. 20, 22-23, 2003 WL 21511832 at *2 (2d Cir. June 27, 2003);Shabazz-Allah v. Guard Mgmt. Serv., No. 99-7371, 201 F.3d 432 (table), 1999 WL 1012402 (2d Cir. Oct. 20, 1999); McDonald v.Maimonides Med. Ctr., No. CV-99-6849, 2002 WL 257818 at *5 (E.D.N.Y. Jan. 3, 2002) (Plaintiff "fails to show that [defendant's] legally sufficient, non-discriminatory reason for her termination — her persistent tardiness — is merely a pretext. The evidence is clear, and undisputed, that [plaintiff] was frequently late for work, that she was disciplined for lateness and for her failure to follow her work schedule on four separate occasions, and that she received two written warnings and two suspensions. . . . [Plaintiff] offers no evidence to show that she was not persistently tardy; rather, she concedes this fact. Nor does she show that any other employee with a similarly egregious record of lateness was not terminated.") (citations omitted); Bennett v. Watson Wyatt Co., 136 F. Supp.2d 236, 246 (S.D.N.Y. 2001) (Plaintiff did not make out a prima facie discrimination case because his chronic lateness "`rendered him unqualified'" for the position. "Furthermore, plaintiff's lateness is a legitimate, nondiscriminatory reason for his discharge."); Hermida v. Postmaster General, 93 Civ. 6564, 1995 WL 622461 at *2 (S.D.N.Y. Oct. 24, 1995) (Where employee "admit[ted] to being excessively late, walking off the workfloor and creating work disturbances," Postal Service met its burden of articulating a legitimate, non-discriminatory reason to discharge plaintiff. "[W]here, as here, an employer substantially establishes legitimate, nondiscriminatory reasons for an employee's discharge, the employee's `task of proving pretext' is `rendered more difficult.'").²⁸ Taylor has failed to show that his January 1998 notice of removal and fourteen day suspension was retaliatory. The Postal Service is therefore entitled to summary judgment on this claim.

28 After Taylor filed a grievance, shop steward Shirley Thompson helped Taylor to settle the grievance with a fourteen-day suspension. (See page 12 above.) While Taylor alleges that McCall "coerced" or "insisted" that he take the fourteen-day suspension in lieu of removal (Taylor Br. at 28;see page 13 above), there is no evidence to suggest that this was anything but good advice.

D. Taylor's Claims That He Was Denied Overtime And Lunch Breaks

Taylor also claims that he was denied opportunities to work overtime after June 18, 1997. (Dkt. No. 92: Taylor Br. at 29-30.) As to the lunch breaks, the Postal Service's summary of Taylor's clock rings show that Taylor received a lunch break of approximately thirty minutes on each shift that he worked. Taylor claims that he would only "get his lunch in between the trips," i.e., the four trucks that arrived for him to receive, unload, and load. (Taylor Dep. at 446, 449). Even assuming that dividing an employee's lunch break into several shorter breaks is an adverse employment action, Taylor offers only unsubstantiated allegations and conclusory assertions that management, specifically McCall and Juan, would have his time sheet reflect that he took a lunch break when he had not in fact taken lunch. (Taylor Dep. at 184-85, 445.)

In response to the Postal Service clock ring evidence showing Taylor's lunch breaks, Taylor argues that "[e]vidence calling into question the credibility of the non-moving party's evidence is not appropriate at the summary judgment stage where all evidence must be viewed in a light most favorable to the moving party." (Taylor Br. at 30 n. 14.) However, the Court is not making a credibility determination, deeming one side's evidence more reliable than the other's. Rather, left to weigh the Post Office's evidence rebutting Taylor's claims against Taylor's bare assertion that the records are inaccurate, Taylor's claim must fail. E.g., Budde v. HK Distrib. Co., No. 99-9449, 216 F.3d 1071 (table), 2000 WL 900204 at *1 (2d Cir. June 29, 2000) (When an employer provides convincing evidence to explain its conduct and the plaintiff's argument consists of purely conclusory allegations of discrimination, the Court may conclude that no material issue of fact exists and it may grant summary judgment to the employer.) ( cases cited at pages 22-23 above).

Similarly, Taylor provides no evidence that he was offered fewer opportunities to work overtime after June 18, 1997 or was offered fewer opportunities than other similarly situated employees. See, e.g., Richerson v. Niagara Mohawk Power Corp., No. 99-CV-0643, 2001 WL 877478 at *4 (W.D.N.Y. July 30, 2001) ("With regard to being denied the opportunity to work overtime, nowhere in plaintiff's papers is it indicated which similarly situated but less senior employees in her department received more favorable treatment."); Harris v. New York City Dep't of Homeless Servs. Eligibility Investigation Unit, 97 Civ. 0432, 1998 WL 205334 at *7 (S.D.N.Y. Apr. 28, 1998) ("[T]here is absolutely no evidence to support plaintiff's claim that he was given fewer overtime assignments than other Clerical Associates as a result of race and gender discrimination. . . . Plaintiff has failed to produce any proof that he was denied overtime at all, much less that this was a result of unlawful discrimination."), aff'd, No. 98-7721, 181 F.3d 82 (table), 1999 WL 314158 (2d Cir. May 14, 1999).

Finally, even if the Court were to find that Taylor presented evidence that he was denied lunch or overtime, there is absolutely no evidence that it was the result of unlawful discrimination or retaliation (as opposed to, say, personality conflicts). The Postal Service is entitled to summary judgment on this claim.

CONCLUSION

For the reasons stated above, the Postal Service's motion for summary judgment (Dkt. No. 82) is granted and Taylor's claims are dismissed. The Clerk of Court is to enter judgment for defendant dismissing Taylor's complaint.

SO ORDERED.