United States District Court, Western District of New York
April 15, 2003
MICHAEL W. EJBISZ, PLAINTIFF, VS. WILLIAM J. POSTMASTER HENDERSON, GENERAL, UNITED STATES POSTAL SERVICE, DEFENDANT.
The opinion of the court was delivered by: John T. Elfvin, Senior District Judge.
MEMORANDUM and ORDER*fn1
Plaintiff commenced this action January 5, 2001 against Postmaster General John E. Potter*fn2 of the United States Postal Service ("Postal Service") asserting, inter alia, violations of Title VII of the Civil Rights Act of 1964. Defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP") dismissing plaintiff's claim. For the reasons stated hereinbelow, defendant's motion will be granted.
The following facts are undisputed unless otherwise noted. Plaintiff was employed by the Postal Service as a letter carrier from March of 1986 until he was terminated on February 18, 2000. During such employment, plaintiff also worked for the United Parcel Service ("UPS"). Plaintiff fully disclosed his employment with UPS to defendant during the hiring process and, as such, it had full knowledge of his dual employment. Plaintiff worked for both the Postal Service and UPS without any apparent problems until August 15, 1997 when he was first warned that his employment with UPS was prohibited and that, if he did not resign from UPS, he would be terminated from the Postal Service. Despite such warning, plaintiff continued thereafter to work for UPS prompting defendant to issue a September 11, 1997 Notice of Removal to him indicating that he was to be removed from his position with the Postal Service, effective October 13, 1997, because his employment with UPS had violated a federal regulation. Specifically, defendant claimed that plaintiff's dual employment had violated section 7001.102(a)(1)(iv) of the Supplemental Standards of Ethical Conduct for Employees of the United States Postal Service ("Standards of Ethical Conduct"), which reads, in pertinent part:
"Restrictions on outside employment and business
(a) Prohibited outside employment and business
activities. No Postal Service employee shall:
(1) Engage in outside employment or business
activities with or for a person, including oneself,
(iv) The operation of a commercial mail receiving
agency registered with the Postal Service, or the
delivery outside the mails of any type of mailable
matter, except daily newspapers; ***." Def.'s
Undisputed Material Facts ("Statement"), Ex. C;
5 C.F.R. § 7001.102(a)(1)(iv).
Plaintiff subsequently filed a grievance, pursuant to a Collective Bargaining Agreement between his union — the National Association of Letter Carriers ("NALC") — and the Postal Service, which proceeded to arbitration. The Arbitrator issued an October 5, 1998 Award whereby plaintiff was reinstated to his position with the Postal Service based on, inter alia, the fact that defendant had not complied with certain procedural requirements required by the Collective Bargaining Agreement.*fn3
Defendant subsequently issued plaintiff a second Notice of Removal on January 19, 1999. The Notice again informed plaintiff that he was being terminated, effective February 18, 1999, because his dual employment had violated section 7001.102(a)(1)(iv) of the Standards of Ethical Conduct. Id., Ex. F. Plaintiff then contacted an Equal Employment Opportunity ("EEO") Counselor on February 22, 1999 and complained that such discharge was due to his age. When the informal complaint was not resolved, plaintiff filed a formal complaint of age discrimination with the EEO on March 17, 1999.*fn4
Plaintiff also filed a second grievance, pursuant to the Collective Bargaining Agreement, and pursued such to arbitration. An arbitration hearing was held January 20, 2000. The parties engaged in settlement negotiations at the outset of the hearing and entered into an agreement which was memorialized in a Consent Award.*fn5 The Consent Award provided that plaintiff would have until February 8, 2000 to choose between two options. Plaintiff's first option was to resign from UPS and, in exchange, defendant agreed to restore plaintiff's employment with the Postal Service. Plaintiff's second option was to resign from the Postal Service with the provision that he would be reinstated if and when he resigned from UPS. The Consent Award also contained the following provision:
"Any past or current appeal in any form will be
dropped by the Union, Grievant and/or anyone acting on
behalf of Grievant. This includes but is not limited
to any legal action, Equal Employment Opportunities
Commission complaint, or further use of the grievance
arbitration procedure relative to this case." Consent
Award, Def.'s Statement, Ex. I, p. 2.
Francis McNamara — the Postal Service's advocate at the arbitration — advised plaintiff that if he chose either option of the Consent Award he would then have to withdraw any pending EEO complaints, grievances or other legal actions. The Consent Award further provided that, if plaintiff did not notify the Postal Service of his decision by February 8, 2000, his grievance would be denied and his discharge would be upheld. Plaintiff failed to resign from either the UPS or the Postal Service by February 8, 2000. As a result, plaintiff's grievance was denied and his discharge was upheld.
Plaintiff's EEO Complaint was subsequently investigated and dismissed by the Postal Service based on its determination that plaintiff had suffered no age discrimination. See Def.'s Statement, Ex. N. Thereafter, plaintiff commenced the present action in this Court and subsequently filed a March 13, 2002 Amended Complaint asserting several causes of action. However, plaintiff subsequently withdrew all of his causes of action except his claim of retaliation. Defendant now moves for summary judgment on such claim.
FRCvP 56(c) provides that summary judgment shall be entered where the movant demonstrates that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." A genuine issue of fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether summary judgment is appropriate this Court must draw all factual inferences in favor of the non-moving party.*fn6
Initially, the Court must address defendant's argument that plaintiff has not exhausted his administrative remedies. Defendant contends that plaintiff has failed to exhaust his administrative remedies because he did not file a separate EEO Complaint alleging retaliation and because his retaliation claim is not reasonably related to his March 17, 1999 EEO Complaint. The Court disagrees.
"[W]hen an employee brings a claim alleging
retaliation for filing a complaint with the EEOC, the
retaliation claim is deemed `reasonably related' to
the original EEOC filing. In such a case, the
allegations of retaliation are seen as stemming from
the earlier discriminatory incident ***. The
retaliation claim may thus be heard notwithstanding
plaintiff's failure to state it in a separate
complaint filed with the EEOC." Owens v. New York City
Housing Authority 934 F.2d 405, 410-411 (2d Cir.
Thus, the Court finds that plaintiff has not failed to exhaust his administrative remedies inasmuch as his present claim is that he was retaliated against for his previously filed EEO Complaint. Accordingly, the Court now turns to the merits of defendant's summary judgment motion to determine whether there are no issues of material fact regarding plaintiff's retaliation claim.
Plaintiff contends that defendant retaliated against him for filing the March 17, 1999 EEO Complaint and that such retaliation occurred during the January 20, 2000 arbitration hearing when the parties negotiated the Consent Award. Plaintiff asserts that, if he chose either of the two options contained within the Consent Award, he would have relinquished his right to pursue his EEO Complaint. Consequently, because the Consent Award provided that the Postal Service would not rehire him unless he chose one of those two options — thereby eliminating his right to pursue his EEO Complaint ___, plaintiff contends that defendant would not rehire him unless he withdrew his EEO Complaint.
Plaintiff's Title VII retaliation claim is subject to the three-part burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). Plaintiff must first demonstrate a prima facie case of retaliation, which defendant may rebut by proffering a legitimate, nondiscriminatory reason for the employment action. Ibid.; see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-507 (1993). The plaintiff may then present evidence that the alleged legitimate reason is actually a pretext for unlawful discrimination. St. Mary's, at 507-508.
To establish a prima facie case of retaliation under Title VII, plaintiff must show that: (1) he participated in an activity protected by Title VII; (2) his employer was aware of his participation in the protected activity; (3) his employer took some adverse employment action against him; and (4) there was a causal connection between the protected activity and the adverse employment action. Gordon v. New York City Bd. of Educ., 232 F.3d 111, 113 (2d Cir. 2000).
Plaintiff has satisfied the first and second prongs of his retaliation claim because the filing of an EEO complaint is protected activity and because defendant was undoubtedly aware of such activity. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000) (holding that the term "protected activity" refers to action taken to protest or oppose statutorily prohibited discrimination). However, plaintiff has not satisfied the third or fourth prong of his retaliation claim.
To satisfy the third prong of his retaliation claim, plaintiff must show that he suffered an adverse employment action. Plaintiff contends that he suffered such an action when defendant refused to rehire him because he would not withdraw his EEO Complaint. While it is true that plaintiff's allegations may form the basis of a retaliation claim, the facts do not support his assertion that defendant refused to rehire him unless he withdrew his EEO Complaint.
Plaintiff was not rehired because he did not elect to proceed with either of the two options that were agreed upon in the Consent Award — to wit, resign from UPS or, alternatively, from the Postal Service. Such failure not only led to the denial of plaintiff's grievance — according to the express terms of the Consent Award — but also meant that he remained dually employed in violation of section 7001.102(a)(1)(iv) of the Standards of Ethical Conduct. Such a violation precluded the Postal Service from rehiring him and provided the sole basis for its decision not to do so.
Plaintiff has offered two cases in support of his argument that "an employer who fails to rehire an otherwise-qualified former employee who has brought litigation against the employer may be guilty of retaliation if that litigation is a reason for not rehiring the employee." Carr v. Health Ins. Plan of Greater N.Y., Inc., 2001 WL 563722, *2 (S.D.N.Y. 2001); see also Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 234 (2d Cir. 2000) (holding that a claim of refusal to rehire an individual following the filing of an employment discrimination charge may be a basis for a claim of retaliation). However, there is a critical distinction between the factual circumstances surrounding the decision not to rehire plaintiff and the circumstances surrounding the same decision that was made with regard to the Carr and Weissman plaintiffs. Each of the Carr and Weissman plaintiffs was otherwise qualified to be rehired but was denied such by his former employer solely because of his pending discrimination claims. Significantly, in both cases the reason for each plaintiff's termination had disappeared, yet he was not rehired by his employer. Accordingly, each court found that such evidence was sufficient to support a claim of retaliation. See Weissman, at 234; Carr, at *2-3. Plaintiff, however, was not an "otherwise-qualified former employee" because his dual employment violated the Standards of Ethical Conduct. Moreover, the reason for plaintiff's termination — that he had been dually employed by UPS — never disappeared and, unlike Carr and Weissman, he cannot show that the only reason defendant did not rehire him was because of his pending discrimination complaint. Simply put, the decision not to rehire plaintiff was not due to his refusal to withdraw his discrimination claim but, rather, because he was not qualified. Therefore, because it is undisputed that plaintiff was terminated, and subsequently not rehired, solely because he was not qualified — to wit, because his dual employment violated 5 C.F.R. § 7001.102(a)(1)(iv) ___, plaintiff has not satisfied the third and fourth prong of his retaliation claim by showing either an adverse employment action or a causal connection between his EEO Complaint and defendant's decision not to rehire him.
Finally, even if the Court were to find that plaintiff had presented a prima facie case of retaliation, plaintiff cannot show that defendant's reason for not rehiring him was pretextual. Defendant's nondiscriminatory reason for its decision was based on the fact that plaintiff's dual employment had violated a federal regulation. Plaintiff has offered nothing credible to show that such a reason was somehow pretextual and he therefore has failed to raise any issues of material facts that would preclude the Court from granting summary judgment to the defendant.*fn7
Accordingly, it is hereby ORDERED that defendant's motion for summary judgment is granted and that the clerk of this Court shall close this case.
*fn2 John E. Potter succeeded William J. Henderson as the Postmaster General on June 4, 2001 and, pursuant to FRCvP 25(d)(1), he was automatically substituted as the defendant.
*fn3 However, the arbitrator explicitly declined to address the merits of defendant's reason for issuing the Notice of Removal — viz, that plaintiff's dual employment warranted termination because such had violated section 7001.102(a)(1)(iv) of the Standards of Ethical Conduct. See Arbitration Award, Def.'s Statement, Ex. E, pp. 12-13.
*fn4 Plaintiff's specific allegation of age discrimination was based on the fact that he received the January 19, 1999 Notice of Removal less than three weeks after he had turned forty years old. See EEO Complaint, Def.'s Statement, Ex. H.
*fn5 Plaintiff was represented at the arbitration hearing by Douglas Fordyce, a NALC Union Advocate.
*fn6 Nevertheless, the non-moving party must rebut the motion for summary judgment with more than conclusory allegations and general denials. FRCvP 56(e); see also Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("Conclusory allegations, conjecture and speculation *** are insufficient to create a genuine issue of fact"). Furthermore, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986).
*fn7 The Court deems moot defendant's final argument — viz, that McNamara's statements made during negotiation of the Consent Award are inadmissable under Rule 408 of the Federal Rules of Evidence — and declines to address such.