VAN 2343 and VAN 2333, which he sought before he received his current Level-16 reassignment, as well as two positions awarded in June and October of 1990, VAN 3000, a Level-17 position, and VAN 3031, respectively, which were awarded after this reassignment. For the reasons below, summary judgment dismissing plaintiff's complaint as to the post-complaint positions is granted.
Plaintiff never requested the assignment or submitted an application for VAN 3000. (Lederman Decl. P 6; Ex. 2). Plaintiff alleges that he did not bother to do so because he felt that defendant's discriminatory practices would render any such application futile. Since he was never denied the position, for whatever reason, he cannot now assert that his failure to get the position was discriminatory. There is thus no cause of action as to this position.
VAN 3031, Supervisor, Maintenance, Detached Units, EAS-16, became vacant on July 23, 1990. (Ex. G-NN). Plaintiff informally requested a lateral transfer to this position (Ex. G-WW) but made this request one month after the announced closing date of the competition for this assignment (Ex.G-NN). Consequently, he was not considered. (Lederman Decl. P 7).
As with the pre-complaint positions, claims charging discrimination were never filed for any of these positions. (Sturman Decl. P 13). Thus, for the same reasons discussed above in the section concerning the pre-complaint positions, plaintiff is barred from suing on the post-complaint positions for failure to invoke, let alone exhaust, his administrative remedies. Plaintiff fails to even assert a plausible reason for failing to do so.
E. Plaintiff's Retaliation Charges
Plaintiff returned for EEO counseling on April 16, 1991 alleging retaliation by the Postal Service, asserting that his mid-year evaluation of "unacceptable" was reprisal for his final complaints. (Ex. P-81). Plaintiff contends that "he had been literally sent to the suffer (sic) in the Post Office underground purgatory in the darkness of night for the sin of complaining." (Plaintiff's Summary Judgment Brief at 59).
On October 11, 1991, the EEO issued a final agency decision on this issue, rejecting plaintiff's contention of reprisal on the basis that the mid-year review was merely a progress report that did not result in any adverse action that would give plaintiff standing to complain. (Ex G-KK in Support of Defendant's Motion for Summary Judgment; Russo Dep. at 28). Plaintiff did not appeal this decision. By the end of the year plaintiff's evaluation was "satisfactory." (Ex. J-116 in Support of Defendant's Motion for Summary Judgment).
"To make out a prima facie case of retaliation, an employee must show that the employee was engaged in protected activity; that the employer was aware of that activity; that the employee suffered adverse employment decisions, and that there was a causal connection between the protected activity and the adverse employment action." Manoharan v. Columbia Univ. College of Phys. & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). In order to escape summary judgment plaintiff must present some evidence that presents a material question of fact as to each element of this claim. Thus plaintiff's claim fails for there is no evidence of any adverse employment action.
"A prima facie case cannot be established by a plaintiff who cannot show that he was the victim of an adverse personnel decision." McGuire v. United States Postal Service, 749 F. Supp. 1275, 1282 (S.D.N.Y. 1990). An adverse action is one that affects the "terms, privileges, duration or condition of the plaintiff's employment." (Id., citing Rooney v. Witco Corp., 722 F. Supp. 1040, 1046 (S.D.N.Y. 1989). Since the mid-year evaluation did not affect the terms, privileges, duration or condition of Johnson's employment (See Ex. G-KK to Defendant's Memorandum) and there is no evidence to the contrary, the retaliation complaint should be dismissed by summary judgment.
More importantly, Johnson's own testimony indicates that any negative evaluations received were not the effect of any discriminatory intent on the part of the evaluators. They were instead due to the difficulties plaintiff experienced in familiarizing himself with his current position. (Certification of Plaintiff, PP 51-53).
For the reasons stated above, defendant's motion for summary judgment is granted. The action is dismissed.
Constance Baker Motley
August 12, 1993
New York, New York