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April 15, 2003


The opinion of the court was delivered by: John T. Elfvin, Senior District Judge.


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 activities.
(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, engaged in:
(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 Statement
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. 1991).
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 ...

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