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JOHNSON v. FRANK

August 12, 1993

MICHAEL JOHNSON, Plaintiff,
v.
ANTHONY M. FRANK, POSTMASTER GENERAL OF THE UNITED STATES, Defendant.



The opinion of the court was delivered by: CONSTANCE BAKER MOTLEY

 FINDINGS OF FACT AND CONCLUSIONS OF LAW

 I. THE PLAINTIFF AND HIS CLAIM

 Plaintiff Johnson is an African-American employee of the United States Postal Service in New York City. From October 1980 until September 1987 his title was Supervisor, Elevator Mechanics, EAS-16. Plaintiff was not promoted after October of 1980. In September of 1987 plaintiff's position was abolished. Plaintiff complains that he was the victim of racially motivated employment discrimination. The foundation of this complaint is plaintiff's failure to receive certain promotions that form the basis of this suit.

 Plaintiff alleges that he formally applied for or in other ways expressed his interest in various vacant positions in the Postal Service dating back to 1987, none of which he received. When grouped according to the dates that he expressed interest in the positions in question, Johnson's claims fall rather neatly into four categories:

 A. The Pre-Complaint Positions

 Plaintiff alleges job discrimination on the basis of seven positions dating back to 1987, *fn1" denominated in accordance with Postal Service regulations as VAN 2073, VAN 2141, VAN 2155, VAN 8016, VAN 2292, VAN 10669, and VAN 2246. *fn2" Defendant argues that Johnson's discrimination claims are legally barred in regard to these positions since he failed to timely file administrative claims as required by law for these positions.

 B. VAN 2267- The Subject of the Equal Opportunity Complaint

 Johnson applied for but did not receive the position denominated VAN 2267. Defendant argues that plaintiff duly filed and entered into a settlement of this claim.

 C. The Post-Complaint Positions

 In October and November of 1989, and in July and October of 1990, Johnson applied for but was not awarded three promotions and one lateral reassignment. Defendant argues that plaintiff did not file administrative claims claiming discrimination for these incidents and thus is barred from bringing this action in regard to those positions.

 D. Retaliation

 Johnson claims adverse actions in retaliation for his filing of discrimination claims. Defendant argues that plaintiff has no cause of action because no adverse effects were suffered by plaintiff.

 Defendant has moved for summary judgment, arguing that plaintiff's case should be dismissed. Plaintiff has responded and has styled his responsive papers as both an answer to the Government's motion for summary judgment as well as a cross-motion for summary judgment on plaintiff's claims.

 II. THE JOBS IN QUESTION

 Pursuant to Postal Service regulations, applications for vacant jobs were reviewed by a Promotion Review Committee, whose job was to recommend the best qualified candidate to a Selecting Official who would make the final selection. (Defendant's Rule 3(g) Statement, P 4). For many of the positions desired by plaintiff, the Promotion Review Committee did not even forward plaintiff's name to the Selecting Official but forwarded another applicant's name instead. At many points, the members of the Promotion Review Committee were themselves African-Americans (See Ex. J-2). Guy Miata was the Selecting Official for all of the jobs in question.

 As far as can be determined by the ofttimes contradictory and inconsistent documents submitted by plaintiff, the following list appears to be uncontroverted. Plaintiff applied for or desired the following jobs during his tenure with the Postal Service:

 A. VAN 2044

 Around February of 1987 plaintiff applied for the position of Maintenance Program Specialist, EAS-19, VAN 2044. Miata selected Clarence Holloway, an African-American, instead.

 B. VAN 2073

 Around April 1987 plaintiff submitted an application for Superintendent, Maintenance (B), EAS-19, VAN 2073. He was interviewed in June. He did not receive the job; Peter Lieto did.

 C. VAN 2141

 Around November of 1987 plaintiff requested to be considered non-competitively for Supervisor, Maintenance, Detached Units, EAS-16, VAN 2141. In December of 1987 plaintiff submitted an application. While John Uske was recommended by the selection committee, no one was appointed, and the position reposted and opened to applicants in a larger geographic area.

 D. VAN 2155

 Around January 4, 1988 plaintiff applied for Superintendent Maintenance(A), EAS-17, VAN 2155, but was never interviewed. The position was split into two positions and thus no one was selected for VAN 2155.

 E. VAN 8016

 Around February of 1988 a vacancy was posted for supervisor, Maintenance, Detached Units, VAN 8016. In March of 1988 plaintiff submitted an application for the position. He was interviewed in April of 1988 but was not selected. Peter Weeks and Thomas Ragiola were selected instead.

 F. VAN 10669

 Between September and November of 1988 plaintiff submitted an application for Superintendent Building and Equipment Maintenance (A), EAS-17, VAN 10669. ...


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