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November 2, 1990


The opinion of the court was delivered by: William C. Conner, District Judge.


This action is brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., for employment discrimination and retaliation. Defendant, United States Postal Service, moves for summary judgment pursuant to Fed.R.Civ.P. 56(c). For the reasons set forth below, defendant's motion is granted in part and denied in part.*fn1


A. Plaintiff's Postal Employment from 1980 to 1986.

Plaintiff, John J. McGuire, worked as a regular letter carrier for the Staten Island branch of the United States Postal Service ("Postal Service") from December 1980 until January 1986, but for a twelve-month break in employment. In or about January 1983, the Postal Service dismissed McGuire for allegedly being a safety hazard. McGuire challenged that dismissal by initiating labor grievance procedures pursuant to the Collective Bargaining Agreement between the Postal Service and the National Association of Letter Carriers. McGuire was reinstated to the Postal Service pursuant to an arbitration decision in January 1984 but did not actually recommence working until March 1985. In his final decision, rendered in August 1985, the arbitrator awarded McGuire back pay and permanent reassignment from the postal carrier craft to the postal clerk craft retroactive to January 10, 1984. See August 1985 Arbitration Decision.

In January, 1986, the Postal Service again terminated McGuire, this time for alleged persistent insubordination. See Notice of Proposed Removal. McGuire, again, chose to challenge the Postal Service's termination decision through the labor arbitration grievance process. Nevertheless, the Postal Service's termination decision was upheld by Arbitrator Thomas F. Carey on May 10, 1987. See Arbitration Decision of May 10, 1987.

B. History of the Instant Federal Lawsuit

  1.  Plaintiff's Participation in Equal Employment
      Opportunity ("EEO") Proceedings in July and August 1985

(a) McGuire's First EEO Complaint

(b) McGuire's Second EEO Complaint

McGuire also sought EEO counseling in August 1985. That EEO participation culminated, approximately three months later, in the filing of another EEO complaint by McGuire on November 23, 1985. In that complaint, McGuire alleged that he had been harassed and discriminated against. Following an unsuccessful hearing, McGuire filed a final appeal to the full Equal Employment Opportunity Commission (the "Commission") on or about January 21, 1986. The Commission issued its decision on October 17, 1986. Upon its review of the record, the Commission found McGuire's allegations to be "vague" and the prior EEO investigation incomplete. The Commission remanded McGuire's complaint to the agency for further processing by EEO counselors in accordance with applicable regulations.

2. EEO Administrative Proceedings

Pursuant to the Commission's October 17, 1986 decision, EEO officers at the Postal Service further investigated and refined McGuire's charges of discrimination. Following its more thorough review of McGuire's charges, the agency articulated McGuire's allegation of employment discrimination as follows:

  Complainant alleges Reprisal actions in that
  after he was restored to duty via arbitration and
  EEO involvement. [sic] Management refused to
  implement arbitrator's award. Denied him form
  CA-1 and refused to allow him to visit his family
  doctor following his traumatic injuries.

See EEO Report of Investigation dated December 18, 1986.

On January 20, 1988, McGuire was accorded a full evidentiary hearing before an Administrative Law Judge ("ALJ"). The ALJ heard two charges raised by McGuire:

  Did the Agency discriminate against the
  complainant on account of reprisals for prior EEO
  involvement, when, it allegedly failed to
  implement an arbitrator's award dated August 14,
  1985 and when it allegedly refused to give the
  complainant a CA-1 injury form on August 17,

See EEOC hearing Transcript dated January 20, 1988. On March 13, 1988, the ALJ ruled that McGuire had not been discriminated against in the terms and conditions of his employment in retaliation for his prior EEO activities. See EEOC Decision dated November 10, 1988. McGuire appealed the ALJ's decision to the full Commission on March 25, 1988. The Commission reviewed three specific charges of retaliation raised by McGuire:

  (1) the Postal Service's delay of nine days in
  providing McGuire with a particular injury claim
  form (a CA-1 form);
  (2) the Staten Island Post Office Safety
  Specialist's directive, after McGuire incurred an
  on-the-job injury in September 1985, that McGuire
  be transported to a local hospital emergency room
  for evaluation and treatment; and
  (3) the Postal Service's alleged failure to
  implement the remedial relief enumerated in the
  August 14, 1985 arbitration award.

See EEOC Decision dated November 10, 1988.

With respect to the CA-1 form and the September 1985 incident, the Commission upheld the ALJ's decision that McGuire had not been discriminated against in retaliation for his prior participation in EEO activities. Id. The Commission, however, directed the Postal Service to supplement the record with respect to the means by which the agency implemented the August 1985 arbitration award.

3. The Second Amended Complaint in the Instant Lawsuit

Following the issuance of the Commission's November 1988 final decision, McGuire filed an Amended Complaint with this court on December 29, 1988. McGuire filed a Second Amended Complaint on July 17, 1989. That complaint alleged employment discrimination by the Postal Service based on McGuire's age and national origin and in retaliation for McGuire's prior participation in EEO proceedings. On October 18, 1989, the Court entered a Stipulation and Order dismissing without prejudice McGuire's age and national origin claims, which had not been exhausted administratively below.

Plaintiff's instant lawsuit centers on four specific acts of alleged retaliation:

  (1) management's delay in providing plaintiff
  with a CA-1 injury claim form,
  (2) management's direction of plaintiff to travel
  to the emergency room of a local hospital after

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