Opinion
01 Civ. 499 (RCC)(KNF)
September 29, 2003
REPORT AND RECOMMENDATION
I. INTRODUCTION
Plaintiff Jamel White ("White"), proceeding pro se, brings this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII") and the Americans with Disabilities Act ("ADA"). Plaintiff claims that the defendant, the United States Postal Service ("USPS"), discriminated against him on the basis of his race, color, national origin and physical disability. Plaintiff also claims that he was subjected to a hostile work environment and that he suffered retaliation for filing a grievance challenging his removal from the USPS. In addition, plaintiff alleges, among other things, slander, libel, criminal libel, wrongful conviction, the unauthorized practice of law and a violation of due process. The defendant has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The defendant maintains that there are no genuine issues as to any material fact and, thus, it is entitled to judgment as a matter of law.
By letter dated March 27, 2003, submitted after the defendant had filed its motion for summary judgment, plaintiff withdrew his claims of discrimination based on religion and sex, and also his claim of "union misrepresentation."
In opposition to the defendant's motion for summary judgment, plaintiff submitted a "Response to Defendant's Rule 56.1 Statement," responses to the declarations of three USPS employees in support of the instant motion, and a "Response to Defendant's Memorandum of Law," which includes a statement of facts. In addition, plaintiff submitted numerous documents pertinent to his claims.
This document, construed liberally, satisfies the requirement set forth in Local Civil Rule 56.1(b) in that it provides a separate, short and concise statement of the material facts as to which White contends there exist genuine issues to be tried.
II. BACKGROUND
Plaintiff was hired by the USPS as a mail handler on May 3, 1999, and assigned to the Morgan Postal Facility in Manhattan. Previously, in April 1999, plaintiff had prepared a USPS application for employment. The employment application form included the question: "Have you ever been convicted of a crime or are you now under charges for any offense against the Law?" Plaintiff answered "no" to this question.
In December 1999, plaintiff was notified that he would be removed from his position at the USPS on January 28, 2000, because, in preparing his application for employment, he had failed to inform the USPS of a prior criminal conviction. Specifically, according to the USPS, an inquiry concerning the plaintiffs background, directed to the Federal Bureau of Investigation, had revealed that, on February 6, 1999, plaintiff was arrested in New York for criminal possession of a weapon in the 4th degree and, thereafter, pled guilty to that offense.
Plaintiff filed a grievance challenging his removal from the USPS. The matter was referred to arbitration and a hearing was held before an arbitrator on September 11, 2000. In a writing dated November 3, 2000, the arbitrator stated that there was no evidence that the plaintiff had deliberately falsified his application for employment at the USPS; the arbitrator concluded, therefore, that plaintiff had been discharged from his position at the USPS without just cause. The arbitrator noted that the weapon possession charge that arose out of plaintiff's arrest on February 6, 1999, had been dismissed and sealed on March 31, 1999. Consequently, in preparing his application for employment in April 1999, plaintiff had answered truthfully when he denied that he had ever been convicted for, or was currently subject to a charge of, an "offense" against the law. The arbitrator suggested that the error on the part of the USPS in claiming that plaintiff had made a false statement on his employment application may have been the result of confusion caused by the appearance, in the report the defendant had obtained concerning plaintiffs background, of a reference to a plea of guilty to the violation of disorderly conduct, which was entered on May 18, 1999, and a reference to an order of protection, which was imposed on the plaintiff on July 20, 1999. The arbitrator found, however, that even allowing for confusion concerning plaintiffs background, the USPS had failed to conduct a thorough or proper investigation into the matter of plaintiff's employment status. Accordingly, the arbitrator awarded plaintiff reinstatement to his former position at the USPS "with full backpay and all other benefits and entitlements."
James Wolahan ("Wolahan"), a labor relations specialist for the New York district of the USPS, submitted a declaration in support of the defendant's motion. Wolahan, who appeared on behalf of the USPS at the arbitration hearing concerning plaintiffs removal, states in his declaration that the plaintiff was removed from his position at the USPS because "a background check revealed mistakenly as we later learned, that he had pled guilty to criminal possession of a weapon in the 4th degree prior to his application for employment at the Postal Service." Plaintiff disputes the assertion that his removal from the USPS was based upon a mistake. Plaintiff notes that the USPS had obtained background reports from the Federal Bureau of Investigation concerning many of its prospective employees and, consequently, knew that such reports contained instructions notifying the recipient, among other things, that "an individual should be presumed not guilty of any charge/arrest for which there is no final disposition stated on the record or otherwise determined." Therefore, plaintiff contends, the USPS, so far from being mistaken or confused about the information contained in plaintiffs background report, as Wolahan maintained, rather "ignored [the] facts," made false allegations and removed him from his position for discriminatory reasons.
In his deposition testimony, when asked why he thought he had been removed from his position at the USPS for discriminatory reasons, White stated that, prior to his removal, his supervisor, Lloyd Bergon ("Bergon"), threatened to fire him, "hovered" over him, refused to permit him to speak to coworkers, harassed him and discriminated against him on the basis of race. As evidence of a racially discriminatory attitude on Bergon's part, plaintiff testified that Bergon said to him: "I don't like your kind," and "You black smart alecks are all the same."
Following his reinstatement, plaintiff filed a claim for back pay pursuant to the arbitration award. In his declaration, submitted in support of the defendant's motion for summary judgment, S. M. Yamond ("Yamond"), manager of labor relations for the New York district of the USPS, stated that plaintiff had been awarded back pay for a period of forty-five (45) days but that, pursuant to Section 436 of the USPS' Employee Labor Relations Manual, "an employee who is successful in arbitration is entitled to back pay beyond the initial 45 days only if he or she has made reasonable efforts to obtain employment during the relevant non-work period." According to Yamond, plaintiff failed to provide sufficient documentation to support his claim that he had made reasonable efforts to seek employment, as required by the pertinent USPS regulation; consequently, plaintiffs claim for back pay beyond the initial 45-day period was denied. Yamond stated further that, although he gave plaintiff an additional two weeks in which to supply the requisite documentation, no such materials were forthcoming. Plaintiffs grievance concerning the denial of his claim for back pay was denied on June 22, 2002.
In support of his claim that he made reasonable efforts to obtain employment during the relevant time period, plaintiff provided the following documents to the USPS: (i) a letter dated July 6, 2000, from Allegiance Telecom, Inc. informing him that he had been offered a position as an account executive; (ii) a certificate of training from the New York Medical Support Career Training Center; (iii) a job fair announcement for the Harlem USA Job Fair; (iv) letters from the State University of New York, the Warner Brothers Recruitment Department, Advantage Human Resourcing, and the Port Authority of New York and New Jersey acknowledging receipt of his resume; (v) a citywide job vacancy notice announcing a position at the City of New York Department of Health; (vi) a W-2 wage and tax statement prepared by Allegiance Telecom, Inc., for the year 2000, indicating the plaintiff had earned $1,142.19 in wages; and (vii) a W-2 wage and tax statement prepared by Pitney Bowes Management, for the year 2000, indicating that plaintiff had earned $616 in wages. Plaintiff contends that these documents constituted sufficient proof that he had made reasonable efforts to obtain employment during the period from January 29, 2000, when he was removed from his position at the USPS, through November 13, 2000, when he was reinstated. According to plaintiff, he was entitled to receive back pay for this entire period but, in fact, received only $1,000. Plaintiff claims he was denied his full back pay for discriminatory reasons.
The defendant contends that the letter from Allegiance Telecom, Inc., was produced for the first time by plaintiff in response to the instant motion and that plaintiff provides no proof any such document was ever given to the USPS.
On October 6, 1999, while he was employed at the USPS, plaintiff suffered an injury to his back. The injury was sustained while plaintiff was working. Plaintiff applied for injury compensation and was awarded continuation of pay from October 7, 1999, through November 20, 1999, and compensation payments from November 21, 1999, through December 14, 1999. In her affidavit submitted in support of the instant motion, Renee Price, a manager in the injury compensation office of the New York district of the USPS, explained that a "continuation of pay" is an employee's regular salary and is payed by the USPS for up to 45 days from the date an employee is injured, while "compensation payments" are payments made to an employee beyond the 45-day period and are paid by the United States Department of Labor, Office of Worker's Compensation Programs.
Plaintiff contends that Bergon contested his claim for injury compensation and that, as a result, he "did not get paid." Plaintiff also contends that Bergon recorded his absences during the time he was unable to work because of his injury as "AWOL instead of an on the job injury."
On December 15, 1999, following his recovery from his back injury, plaintiff returned to work at the USPS in a "light duty" position. Thereafter, on December 23, 1999, plaintiff filed a claim for additional compensation due to a recurrence of his back injury. On January 11, 2000, plaintiff was informed by the USPS that the medical information he had submitted with his initial claim for injury compensation was insufficient to support a claim of recurrence of disability and, therefore, that he was required to submit additional information, including a detailed description of his physical condition during the relevant time period and a medical narrative from his treating physician explaining how his present physical condition was causally related to the October 1999 injury to his back. According to a notice provided to plaintiff on March 17, 2000, plaintiffs claim was disallowed because he failed to respond to the January 11, 2000 letter from the USPS, and also failed to submit any of the requested information. Accordingly, plaintiffs claim for a recurrence of disability was denied.
Plaintiff returned to his position at the USPS following his successful arbitration and reinstatement. However, he resigned his position when he began receiving federal retirement benefits. In his deposition testimony, plaintiff stated that he had been employed for a brief period as a real estate agent after he resigned from the USPS, but that he left that position when he became concerned that he was in danger of losing his retirement benefits.
On April 3, 2000, after his removal from the USPS, plaintiff filed a complaint with the USPS office of Equal Employment Opportunity ("EEO") alleging discrimination based on race, color, sex, retaliation and disability. The complaint named USPS employees Bergon, J. Nappi, B. MacMillon and C. Patterson as the persons who allegedly took discriminatory action against the plaintiff. In a writing attached to the complaint, plaintiff stated that he had been treated unfairly and deprived of his civil rights as a result of being removed from the USPS. Plaintiff also claimed that his removal was based on false accusations concerning his employment application based on the "racist attitude" of his supervisor(s). The EEO accepted the complaint for investigation of the following issue: whether the plaintiff had been discriminated against because of his race, color, sex and physical disability when: (1) on October 6, 1999, his supervisor disapproved his claim for an on-the-job injury; (2) his supervisor failed to pay him for the forty-five (45) days that he was out of work; and (3) on December 22, 1999, he was a issued a notice of removal for failure to admit a prior conviction.
In January 2001, plaintiff filed a second complaint with the EEO. On that occasion, the plaintiff alleged discrimination based on race, national origin, sex, retaliation and physical disability. The complaint named USPS employees O'Connolly, Lugo, Charles, Manai, Bergon and Thorpe as persons who allegedly took discriminatory action against the plaintiff. The EEO accepted the complaint for investigation of the question, whether plaintiff had been subjected to unlawful discrimination based on race, national origin, sex, retaliation and disability when, on December 13, 2000, an arbitrator's award sustained his grievance and reinstated him, and the management of the USPS: (a) placed him back on the same tour with the same supervisors; (b) did not give him the full amount of the back pay awarded; (c) denied his request to go to the medical unit about his back injury; and (d) informed him that he had to sign a letter of reinstatement.
On April 12, 2001, the EEO, having consolidated plaintiffs January 2001 complaint with the complaint filed in April 2000, dismissed the entire matter on the grounds that more than 180 days had passed since that application was filed and, during this time, plaintiff had filed a civil action in federal district court raising the same claims as those raised in his application to the EEO.
Plaintiff filed the instant complaint on January 22, 2001. Thereafter, on January 31, 2003, the USPS filed its motion for summary judgment.
III. DISCUSSION
Standard of Review for Summary JudgmentSummary judgment may be granted in favor of the moving party "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 judgment as a matter of law." Fed.R.Civ.P. 56(c); see also D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.), cert. denied, 524 U.S. 911, 118 S.Ct. 2075 (1998). When considering a motion for summary judgment, "[t]he court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L. B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356).
The moving party bears the burden of showing that no genuine issue of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552 (1986). Once the moving party has satisfied its burden, the non-moving party must come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511 (1986).
In order to defeat a motion for summary judgment, the non-moving party cannot merely rely upon the allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts."Matsushita, 475 U.S. at 586, 106 S.Ct. at 1355. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2510. The non-moving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Id. at 256, 2514. Summary judgment should be granted only if no rational jury could find in favor of the non-moving party. See Heilweil v. Mount Sinai Hospital 32 F.3d 718, 721 (2d Cir. 1994).
The standard for summary judgment applies to discrimination cases no less than to other areas of litigation. See Delapaz v. New York City Police Dep't, No. 01 Civ. 5416, 2003 WL 21878780, at *1 (S.D.N.Y. Aug. 8, 2003). However, the Second Circuit Court of Appeals has emphasized that "the trial court must be especially cautious in deciding whether to grant this drastic provisional remedy in a discrimination case, because the employer's intent is often at issue and careful scrutiny may reveal circumstantial evidence supporting an inference of discrimination." Belfi v. Prendergast 191 F.3d 129, 135 (2d Cir. 1999) (citing Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 87 [2d Cir. 1996]).
Title VII Claim
Title VII makes it "an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise discriminate 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). Claims of discrimination brought under Title VII are analyzed in accordance with the three-part evidentiary framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). Under that framework, the plaintiff must present a prima facie case of discrimination. If the plaintiff meets this burden, a presumption of unlawful discrimination arises and the burden shifts to the defendant, who must adduce evidence that an adverse employment action was taken for a legitimate, non-discriminatory reason. If the defendant states such a reason, the presumption of discrimination falls out of the case and the plaintiff must prove, by a preponderance of the evidence, that the reason offered by the defendant was merely a pretext for discrimination. To do so, the plaintiff must show that the stated reason was false and that discrimination was the real reason for the employer's action. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-520, 113 S.Ct. 2742, 2747-54 (1993); Cagle v. Unisys Corp., No. 99 Civ. 9575, 2003 WL 21939705, at *4 (S.D.N.Y. Aug. 13, 2003).
In order to establish a prima facie case of discrimination, White must show that: (i) he was a member of a protected class; (ii) he qualified for the subject position; (iii) he suffered an adverse employment action; and (iv) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. See Abdu-Brisson v. Delta Airlines, Inc., 239 F.3d 456, 466-67 (2d Cir. 2001); Chertkova, 92 F.3d at 87, 91. The burden of establishing a prima facie case is de minimis. See Abdu-Brisson, 239 F.3d at 467.
Plaintiff, who is African-American, belongs to a protected class. In addition, there is no dispute that he was qualified for the position he held at the USPS. However, the defendant contends that plaintiffs removal from his position at the USPS does not itself constitute an adverse employment action because plaintiff was reinstated to that position. Moreover, defendant argues, plaintiff cannot carry his burden of establishing circumstances giving rise to an inference of discrimination with respect to his removal. Therefore, defendant maintains, plaintiff cannot establish a prima facie case of discrimination.
"A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment."Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (citations and internal quotation marks omitted). A materially adverse change in working conditions must involve more than a mere inconvenience or alteration of job responsibilities. See id. Such a change may be indicated by, inter alia, a termination of employment, a demotion evidenced by a decrease in wage or salary, or a material loss of benefits. See Delapaz, 2003 WL 21878780, at *4.
In this case, an arbitrator found that White had been discharged from his position at the USPS without just cause. Consequently, the arbitrator reinstated White to his former position at the USPS with full back pay and all other benefits and entitlements. Since White was reinstated to his former position at the USPS, there appears to be no adverse employment action to challenge. See Hill v. Children's Village, 196 F. Supp.2d 389, 397 (S.D.N.Y. 2002) (finding that, where plaintiff was reinstated to her position at the same wage with full back pay, benefits and seniority, no tangible employment action was established); Powell v. Consolidated Edison Co., No. 97 Civ. 2439, 2001 WL 262583, at *8 n. 9 (S.D.N.Y. Mar. 13, 2001) (noting that, where plaintiffs termination was reversed and he was reinstated following a union grievance proceeding, no adverse employment action occurred); Wilson v. Consolidated Edison Co., No. 96 Civ. 7546, 2000 WL 335733, at *8 n. 14 (S.D.N.Y. Mar. 30, 2000) (noting that plaintiffs reinstatement would negate any adverse employment action relating to his termination); Lumhoo v. Home Depot USA, Inc., 229 F. Supp.2d 121, 138-39 (E.D.N.Y. 2002) (finding that plaintiffs assertion that he suffered an adverse employment action when defendants discharged him failed as a matter of law because defendants offered, and plaintiff accepted, an unconditional offer of reinstatement with full back pay, the same salary and benefits, and the same seniority status).
Moreover, although the loss of full back pay for the period plaintiff was unemployed undoubtedly constituted a "materially significant disadvantage," Galabya, 202 F.3d at 641, there is no evidence in the record that the USPS' decision to deny plaintiffs claim for back pay was based on anything other than plaintiffs failure to meet the requirements set forth in the pertinent provision of the USPS employee manual. Plaintiff believes that the evidence he provided of his attempts to obtain employment during the relevant time period was sufficient to warrant an award of full back pay. However, plaintiffs belief in this regard does not constitute evidence either that the pertinent department within the USPS erred when it determined to deny plaintiffs claim for back pay or that the determination was motivated by discriminatory animus.
However, even if plaintiff's removal could be said to constitute an adverse employment action insofar as it involved a material loss of benefits, plaintiff has failed to allege circumstances giving rise to an inference of discrimination.
"[T]here is no unbending or rigid rule about what circumstances allow an inference of discrimination when there is an adverse employment decision." Chertkova, 92 F.3d at 91. However, a plaintiff cannot rely on the fact that an adverse employment action was taken against him or her, but must point to facts showing that such action was motivated by discriminatory animus. See id. While a showing of preferential treatment given to employees outside the protected class is a common and effective method of establishing an inference of discriminatory intent, such an inference could also be drawn in circumstances involving, for example, actions or remarks made by supervisors that appear to reflect a discriminatory animus, a pattern of recommending a plaintiff for positions for which the plaintiff is not qualified and not recommending a plaintiff for positions for which the plaintiff is qualified, or a sequence of events leading to the plaintiffs discharge that suggests a discriminatory attitude on the part of the employer. See id.: Abdu-Brisson, 239 F.3d at 468.
In this case, the basis for plaintiff's contention that his removal was motivated by discriminatory animus is, in part, the behavior of his supervisor, Bergon. In his deposition testimony, when asked why he believed that Bergon's allegedly improper treatment of plaintiff was because of his race, plaintiff responded that Bergon had directed "slick remarks" to him, such as, "I don't like your kind," and "You black smart alecks are all the same."
Assuming, as the Court must for purposes of this motion, that White's account of Bergon's behavior is accurate, there can be no doubt that Bergon's conduct was improper. However, in the absence of "other indicia" of discrimination, "the stray remarks of a decision-maker . . . cannot prove a claim of employment discrimination." Abdu-Brisson, 239 F.3d at 468. Here, plaintiff has failed to establish such indicia: there is no evidence in the record, that, for example, preferential treatment was given to similarly situated USPS employees who were not African-American, or that plaintiff was recommended for positions for which he was not qualified or, conversely, passed over for positions for which he was qualified. Nor has plaintiff been able to show that the timing or sequence of events leading to his discharge permit an inference of discriminatory intent. As it stands, plaintiffs allegations concerning the remarks attributed to Bergon, even assuming they are true, are not sufficient to raise an inference of discrimination. See Dawson v. Bumble Bumble, 246 F. Supp.2d 301, 323 (S.D.N.Y. 2003) (finding that plaintiff had not raised a sufficient inference of employment discrimination where an allegedly discriminatory statement represented no more than an instance of an isolated or stray comment); Ngwu v. Salvation Army. No. 96 Civ. 0058, 1999 WL 2873, at *5 (S.D.N.Y. Jan. 4, 1999) (finding that derogatory remarks concerning plaintiffs national origin, being isolated discriminatory comments, were insufficient to support an inference of discrimination or to defeat summary judgment).
Moreover, the written determination of the arbitrator finding that plaintiff had been removed without just cause makes no mention of an allegation of discrimination or of any evidence of discriminatory animus as an element or motivating factor in plaintiffs discharge. The absence from the arbitrator's ruling of any reference to discrimination "makes it difficult for the plaintiff to resist summary judgment." Santiago v. National Cleaning Contractors, No. 88 Civ. 1172, 1992 WL 84473, at *7 (S.D.N.Y. Apr. 15, 1992) (finding that defendant in a Title VII retaliation case was entitled to summary judgment because nothing in the record suggested that plaintiffs successful arbitration had anything to do with discrimination). Under the circumstances, and bearing in mind the Second Circuit's admonition that a decision to grant summary judgment in a discrimination case should be made with caution, the Court finds that plaintiff has not presented concrete evidence establishing that his removal from the USPS was racially motivated.
Plaintiff claims that the denial of his request for full back pay shows that he was discriminated against because of his race. However, as noted above, the evidence in this case suggests that the determination to deny plaintiffs claim for full back pay following his reinstatement was made entirely on the basis of an internal USPS requirement with which plaintiff failed to comply, namely, that an applicant submit adequate proof that he attempted to find alternative employment during the relevant time period. Although plaintiff submitted a variety of documents, as described above, in support of his claim, evidently these were not sufficient to meet the criteria set forth by the USPS' office of labor relations. Moreover, plaintiffs response to the declaration of USPS employee Yamond fails to present any specific facts showing there is a genuine issue for trial. Plaintiff states only that he was "railroaded" out of the USPS based on false charges, that Yamond failed to mention in his declaration any of the items of proof plaintiff had submitted previously and that Yamond's declaration is false. Furthermore, during his deposition, plaintiff testified that he had never met Yamond and that he believed Yamond had discriminated against him because he recalled that Yamond had "approved of the allegations" against him by signing either the letter of removal or a document pertaining to plaintiffs injury claim.
Plaintiff also has not shown that Bergon contested his injury compensation claim for discriminatory reasons or that the denial of his claim for recurrence of his disability arose in circumstances giving rise to an inference of discrimination. Plaintiff contends that Bergon improperly contested plaintiffs original request for injury compensation and unfairly recorded his absences as "without leave." However, in an affidavit submitted in connection with his first EEO complaint, plaintiff stated that Bergon contested his on-the-job injury claim, not because of plaintiffs race, but because of "[Bergon's] personal dislike for me." Moreover, in any event, plaintiff received injury compensation in the form of continuation of pay for forty-five (45) days, during the period that he was unable to work because of his injury, and also received compensation payments for an additional two weeks following that period. Furthermore, as plaintiff concedes in his response to the declaration of USPS employee Renee Price, the denial of plaintiffs claim for recurrence of disability was based on plaintiffs failure to provide the requisite documentation in support of that claim. Plaintiff has alleged no facts in support of his claim that Bergon contested his original application for injury compensation for discriminatory reasons or that the denial of his recurrence of disability claim was motivated by discriminatory animus.
In his EEO complaints, plaintiff stated that USPS employees J. Nappi, B. MacMillon, C. Patterson, O'Connolly, Lugo, Charles, Manai and Thorpe also discriminated against him. In his deposition testimony, plaintiff stated J. Nappi discriminated against him by approving Bergon's "false charges" against him; regarding C. Patterson, plaintiff stated that he believed she had discriminated against him by removing him from the USPS because he had filed complaints about her "unprofessionalism in the human resource department." However, when asked whether either J. Nappi or C. Patterson had ever said anything to him about his race or disability, plaintiff answered "no."
Plaintiff also claimed that Lugo had discriminated against him by denying his request to go to the medical unit at the time of plaintiff's injury; however, when questioned about his claim against Lugo during his deposition, plaintiff stated that "I feel that he discriminated just to discriminate. It doesn't have to stem from anything." As for his claims against B. MacMillon, Thorpe, O'Connolly, Charles and Manai, plaintiff was unable, during his deposition testimony, to state with certainty whether any of these individuals had said anything to him about his race or his disability.
Under the circumstances, plaintiff has failed to show that he has suffered an adverse employment action that was the product of discriminatory animus based on race or disability. Therefore, the Court finds that plaintiff has failed to establish a prima facie case of discrimination with respect to his removal, denial of full back pay claim and denial of recurrence of disability claim. Accordingly, summary judgment should be granted in favor of the defendant on the discrimination claim brought under Title VII.
Plaintiff has raised no specific facts concerning discrimination based on color or national origin. Therefore, plaintiffs claims of discrimination based on color and national origin should be dismissed.
ADA Claim
In bringing the instant action, plaintiff alleges discrimination under the ADA. However, the USPS is not an employer, as that term is used in the ADA and, therefore, is not an entity covered by that statute. See 42 U.S.C. § 12111(2) and (5)(B)(i); Kemer v. Johnson, 900 F. Supp. 677, 681 (S.D.N.Y. 1995) (finding that federal agencies are immune from suit under the ADA). Therefore, since the ADA claim asserted by plaintiff is without merit, this branch of the defendant's motion for summary judgment should be granted.
Hostile Work Environment Claim
In order to prove a claim of hostile work environment under Title VII, a plaintiff must "establish (1) that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of [his] work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 436 (2d Cir. 1999) (quoting Schwapp v. Town of Avon, 118 F.3d 106, 110 [2d Cir. 1997]). The conduct at issue must be so severe or pervasive that it creates a work environment that is both objectively hostile and subjectively perceived to be hostile or abusive by the victim. See id. (citing Harris v. Forklift Systems, 510 U.S. 17, 21-22, 114 So. Ct. 367, 370-371 [1993]).
"The incidents must be repeated and continuous; isolated acts or occasional episodes will not merit relief." Kotcher v. Rosa and Sullivan Appliance Ctr., Inc., 957 F.2d 59, 62 (2d Cir. 1992). Specifically, in order for "racist comments, slurs, and jokes to constitute a hostile work environment," such comments must occur on more than a few isolated occasions. Richardson, 180 F.3d at 437 (citation omitted). Moreover, a plaintiff must prove that he was harassed because of his protected status, not for other reasons. See Alfano v. Costello, 294 F.3d 365, 377 (2d Cir. 2002).
Plaintiff cannot establish the elements of a hostile work environment claim. In his complaint, plaintiff alleges that "Bergon has harassed me ever since I've entered the [USPS]. . . . Bergon kept making it hard for me to succeed . . . he stated lots of negative slurs about me with . . . no motives but personal hatred. . . ." However, this falls short of demonstrating the level and frequency of offensive conduct that must be present in order to establish a hostile work environment claim. In addition, although plaintiff has identified certain specific racial epithets which he attributes to Bergon, this does not suffice to demonstrate the sort of repeated and continuous abuse that constitutes a workplace "permeated with discriminatory intimidation." Nor is plaintiff able to show that the hostile work environment to which he claims he was subjected resulted from the conduct of his employer. As noted above, in his complaint and in his deposition testimony, plaintiff has accused various USPS management personnel of having treated him improperly; however, plaintiff ascribes such treatment to feelings of personal animosity towards him on the part of those employees, rather than to discriminatory animus. Consequently, plaintiff has failed to specify any basis for the imputation of a hostile work environment to the USPS. See Delapaz, 2003 WL 21878780, at *3 ("Title VII, of course, prohibits only discrimination on the basis of race, color, religion, sex or national origin, not general surliness or arbitrary pettiness."). Under the circumstances, the Court finds that the allegations made by the plaintiff do not suffice to raise a material issue of fact as to whether plaintiff was subjected to a hostile work environment. Accordingly, the defendant's motion for summary judgment should be granted with respect to this claim.
Retaliation Claim
Title VII prohibits an employer from "discriminat[ing] against any of its employees . . . because [the employee] has opposed any practice made an unlawful employment practice by this subchapter." 42 U.S.C. § 2000e-3(a). To establish a prima facie case of such retaliation, a plaintiff must show: (1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action. See Gordon v. New York City Bd. of Educ., 232 F.3d 111, 113 (2d Cir. 2000). To prove that he engaged in a protected activity, a plaintiff must show that he opposed a practice engaged in by his employer, and that he had a "good faith, reasonable belief that the underlying challenged actions of the employer violated the law." Walker v. New York City Transit Authority, No. 99 Civ. 3337, 2001 WL 1098022, at *8 (S.D.N.Y. Sept. 19, 2001) (quotingWimmer v. Suffolk Co. Police Dep't, 176 F.3d 125, 134 [2d Cir. 1999]).
White alleges that the USPS retaliated against him, first, by removing him after he registered grievances against his supervisors and, second, by refusing to give him his full back pay after his successful arbitration and by placing him, after he was reinstated, on the same tour of duty, under the same supervisor, as the one he had occupied before his removal.
The conduct plaintiff alleges resulted in his removal does not constitute protected activity under Title VII. In claiming discrimination based on retaliation, plaintiff alleges that the defendant removed him from his position because, among other things, he had filed grievances against his supervisors. However, the action taken by plaintiff did not involve opposing an employment practice of the USPS which plaintiff had a good faith, reasonable belief was unlawful. Moreover, although protected activities under Title VII include informal as well as formal complaints of discrimination, see Walker, 2001 WL 1098022, at *8, plaintiffs claims of discrimination, both those raised in his EEO complaints and those contained in the instant complaint, were made after his removal from the USPS. Therefore, with respect to his removal, plaintiff cannot establish the first element of a prima facie case of discrimination based on retaliation.
Further, plaintiffs claim that he was subject to retaliation when he returned to his former position at the USPS after his successful arbitration is not supported by the record evidence. First, as discussed earlier, the decision by the USPS to deny plaintiff's claim for full back pay was based upon plaintiffs failure to comply with the pertinent USPS regulations. Therefore, plaintiff cannot show that the USPS denied him his full back pay because he participated in any protected activity. Secondly, plaintiffs deposition testimony belies his claim that he was placed on the same tour with the same supervisors after his reinstatement. Plaintiff stated during his deposition that when he began work at the USPS his supervisors were Bergon and J. Nappi, but that when he returned to the USPS following his reinstatement he was supervised by others, including Thorpe and Manai. Moreover, as plaintiff concedes, when he left his position at the USPS, he did so because he had become eligible for retirement benefits, not because he was subject to discriminatory retaliation. Therefore, the Court finds that plaintiff has failed to establish a prima facie case of retaliation. Accordingly, summary judgment should be granted in favor of the defendant on the retaliation claim brought under Title VII.
Other Claims
In his complaint, plaintiff alleges, among other things, slander, libel, criminal libel, wrongful conviction, the unauthorized practice of law and a violation of due process. Plaintiff has not set forth any specific facts in support of these claims showing that there is a genuine issue for trial. Therefore, plaintiff cannot resist summary judgment with respect to these claims.
IV. RECOMMENDATION
For the reasons set forth above, the Court recommends that defendant's motion for summary judgment be granted as to all claims asserted in the complaint.
V. FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of the Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard C. Casey, United States District Judge, 500 Pearl Street, Room 1950, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Casey. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Am, 474 U.S. 140 (1985); IDE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993);Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).