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July 29, 1999


The opinion of the court was delivered by: McMAHON, District Judge.


Defendant has moved for summary judgment, pursuant to Fed.R.Civ.P. 56(b) in this employment discrimination and retaliation case. The standard for granting summary judgment is almost too well-known to be reiterated. Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Such a motion serves "to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation. See Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988). With this in mind, I turn to the motion made by the Postmaster General in this case. As I must, I view all the evidence most favorably to the non-movant, plaintiff.

Plaintiff alleges that he was originally discriminated against in February 1994 on the basis of his race (white) and nationality (Italian). He cannot presently recall what caused him to file his original EEOC claim and he testified at his deposition that he never perceived his supervisors, Napolean Williams and Vincent Ciancio, to be discriminating against him for his ethnicity or his race. Rather, he stated under oath that he thought he was being harassed at work by the Postmaster (Williams) and by his supervisor (Ciancio) because he had reported Ciancio to the Postal Inspectors in 1991. Whatever the basis for his complaint, plaintiff acknowledges that it was conciliated and resolved by Enid Samuels, an EEO investigator, in July of the same year.

In October 1994, plaintiff again sought EEO counseling, because he believed that he was being discriminated against in retaliation for his prior EEO activity. He withdrew this complaint, but filed another in December 1994, claiming that he was subject to unusual supervision and repeated outbursts of temper by Williams, Ciancio and Glen Smith, another supervisor, as well as being given a "hard time" when he sought overtime assistance. Nicastro observed that the supervisors behaved differently toward other employees who made the same or similar requests. Nicastro also contended that he had received an unusual number of letters of warning during this period.

In April 1995, while lifting mail, plaintiff injured his right shoulder, receiving a diagnosis of bicipital tendinitis. After his injury, Nicastro contends that he returned to full duty. However, in November 1995, he suffered a recurrence of the injury and was placed on a 25 pound weight restriction. Thereafter, due to chronic pain, Nicastro's weight restriction was adjusted to 20 pounds, then 10 and finally 5 pounds in the fall of 1997. Plaintiff claims that he was required to bring in doctor's notes more often than other postal service employees who were injured, which he again attributes to his prior EEO activity. He also contends that Smith gave him a hard time about his injury and his requests for street assistance due to same, and claims that, when Nicastro documented their exchange, Smith said, "Put that in your little book and tell the EEO. I don't fuckin' care."

In April 1997, plaintiff bid for City Route # 1, a posted vacancy. He was the senior person who bid for the slot. Plaintiff claims that, while his weight restriction was 20 pounds at the time of the bid, thus placing him "technically" on limited duty, he was already "carrying" City Route # 1 and had been for some months at the behest of his various supervisors. Plaintiff found ways to reduce the weight of the satchel by breaking up the relay, and occasionally by asking a customer to come into the station to pick up a heavier package. Nicastro claimed that his weight restriction did not interfere with his ability to carry the mail, and the new postmaster at Wappingers Falls, Quinn, confirmed that he saw plaintiff carrying the route and made no negative comment about his performance. He does not dispute, however, that the job description for a route postal carrier included the ability to carry 70 pounds of mail; indeed, he so testified at his deposition.

On the last day of the bid period, in a deviation from past practice, Quinn demanded that plaintiff produce a doctor's note certifying that he could carry 70 pounds. Nicastro told Quinn that his doctor was away, but Quinn would not extend the bid period. Plaintiff did submit a letter from his doctor, belatedly, but it did not certify that he would be able to lift 70 pounds within six months of the bid date; indeed, the most it said was that a successful recovery was expected and that the doctor hoped Nicastro would be able to lift 35 pounds. Nicastro did not get the post.

Plaintiff filed a complaint after he was denied the bid, claiming that he was refused the position because of his prior EEO activity. Shortly thereafter, Nicastro received a letter of warning because he was not wearing the postal uniform hat. Quinn admits that others were out of uniform and did not receive written warnings. After a union grievance, the postal service modified the letter from a warning to an official discussion.

In June 1997, plaintiff had surgery on his right shoulder. He received another letter of warning concerning his time off, which was again modified downward after a union grievance.

After his surgery, plaintiff remained subject to the 20 pound restriction. Nonetheless, in September 1997, he was reassigned to the "collection run." Defendant contends that Nicastro was assigned to this run in order to accommodate his weight restriction; plaintiff claims that he never asked for any accommodation but said the assignment actually aggravated his injury. When he complained after two days, he was taken off the assignment.

Eventually, plaintiff was reassigned to the post office at Hudson, in order to accommodate his medical restriction, which by this point was 5 pounds.

Plaintiff contends that this entire series of events was retaliation for his filing of the EEO complaints in 1994. Having never filed a timely charge with the EEOC, plaintiff has made no complaint of racial or ethnic origin discrimination in violation of Title VII; he complains only of retaliatory treatment.

The Government moves for summary judgment on several grounds, including, inter alia, plaintiff's alleged failure to demonstrate that he had a good faith basis for filing his initial complaints of racial and ethnic origin discrimination, plaintiff's inability to fulfill the basic requirements of the job opportunity he was seeking, and ...

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