Husowitz to use the telephone on his (Mr. Pelligrino's) desk, the plaintiff became enraged.
The confrontation continued the following morning after Mr. Pelligrino again observed the plaintiff using the telephone within the registry section (Tr. 403). Mr. Pelligrino directed the plaintiff to place the call on hold and to take it from the phone on his (Pelligrino's) desk located outside the registry section (Tr. 403). Mr. Husowitz reluctantly left the registry area and then repeatedly sang aloud "I don't want to" and "Working on a chain gang" (Tr. 404-06); Defendant's Exh. E.
Mr. Pelligrino testified that he received complaints from the plaintiff's co-workers demanding an explanation as to why Mr. Husowitz was receiving preferential treatment and what disciplinary action was going to be taken against their colleague (Tr. 356). Article 16, § 2 of the National Agreement between the Postal Service and its employees provides, "For minor offenses by an employee, management has a responsibility to discuss such matters with the employee" Defendant's Exh. J. However, in spite of his frequent acts of misconduct and insubordination, Mr. Pelligrino did not initiate disciplinary action. He testified that he was prevented by the plaintiff from discussing his concerns with the plaintiff (Tr. 392-97, 406).
Mr. Pelligrino testified that he did not attempt to transfer Mr. Husowitz to another department because the plaintiff was in a senior "bidded assignment"
(Tr. 391). To remove Mr. Husowitz from the business reply area, the Postal Service either had to prove that Mr. Husowitz acted negligently or that he could not do his job. According to Mr. Pelligrino, there was no question that "[Mr. Husowitz] could do the job when he wanted to. He chose not to" (Tr. 391).
Mr. Pelligrino further testified that he decided against disciplinary action because he "really feared [the plaintiff] .... I handled it the best way I knew how" (Tr. 365). He stated that each time he attempted to engage Mr. Husowitz in a discussion about his conduct, the plaintiff either walked away or began to sing (Tr. 362-63).
Following the second telephone incident within the registry area, Mr. Husowitz on April 3, 1991 threatened Mr. Pelligrino. Mr. Husowitz told his supervisor, "Do you remember Oklahoma?....if I go down, you are coming with me". Messrs Pelligrino and Alleva testified that this was a reference to the 1986 shooting of fourteen Postal Service employees by a former employee (Tr. 404-05, 571).
The court credits the testimony that this was a threat of physical violence.
After discussing this incident with the Superintendent of the Farmingdale Post Office, Mr. Pelligrino that same day placed the plaintiff on "Emergency Non-Work Status," pursuant to Article 16, § 7 of the Postal Service's Labor Relations Manual, on the grounds that the plaintiff may be injurious to himself or others" (Tr. 177-80, 406-10); Defendant's Exh. J. Postmaster Maynes agreed with the action and supplemented it with a letter, dated April 4, 1991, addressed to Mr. Husowitz informing the plaintiff that he would receive administrative leave pay
during the suspension but was prohibited from returning to work until further notice Defendant's Exh. D. This is the suspension that is at issue in this action.
Mr. Maynes also issued a request to Dr. Veal, a medical officer of the United States Postal Service, for a psychiatric re-evaluation of Mr. Husowitz Defendant's Exh. E. On April 15, 1991, Dr. Paul Miller examined the plaintiff pursuant to the postmaster's request Defendant's Exh. AA. Following the examination, Dr. Miller issued a report in which he concluded:
Mr. Husowitz is in the manic phase of his Bi-polar disorder, although he may really be only hypomanic at this time. His illness interferes with his ability to function at work. The patient needs to be in regular psychotherapy. His lithium dosage needs to be increased. He cannot only go to see his doctor once every 2 months.
The testimony elicited at the trial established that upon returning to the Farmingdale Post Office in 1990, Mr. Husowitz had continued to attend weekly counseling sessions with Dr. Pelosi (Tr. 452) and that the frequency of their therapy sessions was reduced to once every two months by April 1991.
Dr. Pelosi testified that Mr. Husowitz did not pose a threat of violence even though bi-polar disorder is a "mood disorder" which has been recognized to pose a threat of violence in some cases (Tr. 459-60). Dr. Pelosi further testified that he was aware that Mr. Husowitz was having work-related problems and that his conduct was "probably, [but] not necessarily, related to his bi-polar disorder ... Each time Mr. Husowitz would tell me of his arguments or problems with the post office, it would always be a red flag ...." (Tr. 457-58; 464). The doctor advised Mr. Husowitz to avoid engaging in heated arguments because the additional stress could result in another "episode" (Tr. 459, 466, 469).
Mr. Husowitz testified on his own behalf. The plaintiff testified that the therapy sessions and prescribed medication permitted him to satisfactorily perform all of his duties at the Farmingdale Post Office (Tr. 475-76). Mr. Husowitz stated that he was "singled out" by his colleagues and the subject of their "continuous harassment" due to his disability (Tr. 184, 479). The plaintiff further testified that the Postal Service's rules were applied more stringently against him compared to his co-workers, and that Mr. Pelligrino rejected his offers to reconcile their differences (Tr. 494). The court does not credit this testimony.
Mr. Husowitz concedes that he sometimes sang songs at work and acted in a disrespectful manner towards Mr. Pelligrino. However, according to the plaintiff, this was just his way to "diffuse the [tense] situation" (Tr. 494).
In March 1992, the plaintiff was medically cleared and reinstated to his former position, pursuant to § 324 of the Employee Manual (Tr. 201); Defendant's Exh. I. However, upon his return from emergency non-work status there was no improvement in his conduct (Tr. 527). On his first day back, Mr. Husowitz repeated his previous threat to Mr. Pelligrino. This time, the plaintiff told his supervisor, "Lou, do you remember Oklahoma? When I go down, I am bringing others with me" (Tr. 527-28). Mr. Pelligrino documented the incident, and a few days later Postmaster Maynes issued the plaintiff another letter of warning (Tr. 529).
In addition to the persistent singing, loud outbursts, complaints, and disruptions, it was also apparent that the quality of Mr. Husowitz' performance in the postage due area had not improved (Tr. 530). Mr. Pelligrino, whose responsibilities included tabulating the mail left over for delivery from the prior day, testified that on one occasion, Mr. Husowitz left behind "approximately four feet of mail" (Tr. 539-40). Mr. Pelligrino further testified that carry over mail is not unusual within the distribution area, however, the plaintiff was assigned to the postage due section which handles priority mail that is to be delivered daily (Tr. 540-41).
In June 1992, John Trahan replaced Postmaster Maynes as the Officer-in-Charge of the Farmingdale Post Office (Tr. 548-50).
Mr. Trahan testified that he assigned additional employees to work in Mr. Husowitz' area after receiving complaints from customers claiming that they had not been receiving their postage due and business reply mail in a timely manner (Tr. 554, 556-58). Upon investigation, Mr. Trahan concluded that "Mr. Husowitz was taking in excess of six and seven hours to perform a job that people not as skilled could do in two and three [hours]" (Tr. 556).
In October 1992, Mr. Trahan suspended the plaintiff for thirty days, with pay, for insubordination and use of language in violation of the Postal Service's code of ethics (Tr. 550-52). The suspension arose from the plaintiff's refusal to remove an empty beer bottle
from his desk. The plaintiff had retrieved from the garbage a beer bottle that had been previously removed from plaintiff's desk by Mr. Trahan. Mr. Husowitz shouted obscenities at the Officer-in-Charge (Tr. 551). Following an unsuccessful attempt by a union shop steward to calm him, Mr. Trahan had the plaintiff removed from the building and four days later placed him on emergency suspension (Tr. 551-52).
Shortly after returning from this suspension in November 1992, Mr. Husowitz was granted a position within the Vehicle Operations Maintenance area (Tr. 534, 550). John C. Alleva, who was named Postmaster of the Farmingdale Post Office January 1993, testified that the plaintiff received the necessary training and assistance to complete his responsibilities as a Vehicle Operations Maintenance Assistant ("VOMA") (Tr. 563). When Mr. Husowitz expressed concern that he was untrained in computer data entry, which was needed to monitor the mileage of Postal Service vehicles, a computer assistant "who had spent most of her time working the computer" was assigned to assist him (Tr. 584). Mr. Alleva further testified that he first learned of Mr. Husowitz' disability in January 1996, and that regardless of his condition, Mr. Husowitz was always "afforded the same treatment as every other clerk" (Tr. 581, 588).
In February 1993, Mr. Husowitz was issued another warning letter after shouting obscenities at Mr. Trahan, who had returned to the Farmingdale Post Office to attend a meeting with the new Farmingdale Postmaster (Tr. 564). A few months later, Mr. Husowitz was again disciplined for making threatening statements to co-workers (Tr. 565).
Finally, on October 6, 1993, Mr. Husowitz was placed on emergency placement for the second time when he instructed Mr. Alleva that he had called the police. When Mr. Husowitz refused to explain to the Postmaster why he made the call, Mr. Alleva told the plaintiff to take the rest of the day off. Mr. Husowitz irately told Postmaster Trahan, "I am going to get you, I will get you" (Tr. 568). It was at that point that Mr. Husowitz was placed on non-pay Emergency Placement. Before leaving the building, the plaintiff shouted to Supervisor Sal Modena, "You are next" (Tr. 568, 572).
Mr. Husowitz filed a grievance challenging the October 1993, suspension. The grievance, which went to arbitration in November 1994, was heard before Arbitrator Carl T. Bignon. The decision of Mr. Bignon, dated January 19, 1996, includes the following:
The Arbitrator is persuaded that the Postmaster of Farmingdale has a legitimate concern and responsibility to provide, to the extent of his capability, a safe work environment, free of threats, harassment and intimidation. It was his determination that the actions of Mr. Husowitz were such that his removal warranted. The Arbitrator finds that the credible evidence supports that determination. Based on the foregoing, the Arbitrator finds that the emergency placement in an off duty status [in October 1993] was proper; and the proposed removal and the decision to remove Mr. Husowitz were for just cause. Accordingly, the grievances are denied.
Defendant's Exh. MM; (Tr. 570). Shortly following the arbitrator's ruling, Mr. Husowitz was discharged from the Postal Service in February 1996 (Tr. 497).
Initially, because the plaintiff is acting pro se, in reviewing the complaint and the evidence in this case, the court recognizes the mandate of the Supreme Court that a pro se complaint is to be held "to less stringent standards than formal pleadings drafted by lawyers" Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972), and the Second Circuit's instructions "that a pro se litigant should be afforded every reasonable opportunity to demonstrate that he (or she) has a valid claim" Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759, 762 (2d Cir. 1990), cert. denied, 499 U.S. 943, 113 L. Ed. 2d 459, 111 S. Ct. 1404 (1991) (quoting Satchell v. Dilworth, 745 F.2d 781, 785 (2d Cir. 1984)).
1. Burden of Proof Under the Rehabilitation Act
It is well-established law that a plaintiff in an employment discrimination case
has the burden, first of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, non-discriminatory reason for the employee's rejection [or termination]. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
Hargett v. National Westminster Bank, 78 F.3d 836, 838 (2d Cir. 1996) (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981) (internal quotations and citations omitted)).
II. Plaintiff's Prima Facie Case
The Rehabilitation Act was enacted to deter discrimination by employers against any individual with a disability, as defined in the Act, solely on the basis of that disability. See Sedor v. Frank, 42 F.3d 741, 745 (2d Cir. 1994), cert. denied, 115 S. Ct. 2279 (1995) (citing Gilbert v. Frank, 949 F.2d 637, 640 (2d Cir. 1991)). The protections afforded to a handicapped individual by section 504 are as follows:
No otherwise qualified individual with a disability in the United States, as defined in section 706(8) of this title, shall, solely by reason of her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.