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March 9, 2004.

EARL C. RANDALL, Plaintiff, -against- JOHN E. POTTER, Postmaster General of the United States, et al., Defendants

The opinion of the court was delivered by: THEODORE KATZ, Magistrate Judge

Plaintiff, Earl C. Randall, brings this action claiming race and gender discrimination, as well as unlawful retaliation, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), and various other federal and state statutes. Plaintiff has named as Defendants John E. Potter, Postmaster General of the United States ("the Postal Service"), and the following employees of the Postal Service: Freda Lanier ("Lanier"), Frank Ruggiero ("Ruggiero"), Maynard Jones ("Jones"), Deborah Aronovici ("Aronovici"), Atiya Beard ("Beard"), and Leon Smith ("Smith"). The parties have consented trial before this court pursuant to 28 U.S.C. § 636(c). Presently before the Court is Defendants' motion for summary judgment, brought pursuant to Federal Rule of Civil Procedure 56. For the reasons that follow, the motion is granted and this action is dismissed with prejudice. Page 2


  Plaintiff is employed by the United States Postal Service as a mail handler at the Detached Mail Unit ("DMU"), which is part of the Postal Service's Bronx Processing Center ("Bronx P & DC"). Plaintiff was employed in this position in June 1999, when the events underlying this action occurred.

  On June 8, 1999, Jones, the Manager of Distribution Operations at the Bronx P & DC, asked Ruggiero, a Supervisor in Distribution Operations at the Bronx P & DC, to look into an incident that had occurred that morning at the DMU. (See Declaration of Francis J. Ruggiero, dated July 29, 2003 ("Ruggiero Decl."), ¶ 4.) Jones told Ruggiero that it had been reported to him that, at approximately 10:55 A.M. on the same day, Plaintiff was operating a powered industrial truck ("PIT"), and struck Freda Lanier, a supervisor, on her right elbow. Ruggiero subsequently reviewed witness statements that had been taken from Plaintiff, Atiya Beard, Ricky Malcolm, Marcelle Darlington, Addy Reyes, and Luis Irizanny, by Aronovici, a Postal Service Inspector. (Id. ¶ 5 & Ex. A.)

  The interview with Plaintiff occurred in the presence of his union representative. In his statement and at his interview with Aronovici, Plaintiff indicated that his supervisors, David Powell and Siddique Ali Shahbaaz, had told him to load pallets onto a trailer, using the PIT. According to Plaintiff, after commencing this task, Lanier ordered him to stop loading the pallets onto the Page 3 trailer. Plaintiff refused and told her that the truck had to be loaded with pallets for safety reasons. She again instructed him to stop loading the truck. Plaintiff asked Lanier to move, she refused, and Lanier positioned herself in front of the PIT. Plaintiff again asked her to move and when she refused he maneuvered the PIT around her. He claimed that he was not aware of striking her with the PIT and, only later was he told by the investigator that he had struck her. He denied that he did so. (See Ruggiero Decl., Ex. A; Declaration of Earl C. Randall, filed Oct. 20, 2003 ("Randall Decl."), ¶¶ 3-6.)

  Ruggiero also interviewed Lanier. In her statement to Inspector Aronovici and during her interview, Lanier stated that she was supervising the loading of a trailer at the DMU, and that she had ordered Plaintiff to stop loading the trailer with the PIT until some rolling stock in the area could be removed. According to Lanier, Plaintiff became upset and began yelling at her and using profanity. Plaintiff then proceeded to disregard her order and attempted to drive the PIT around her to continue loading the pallets. While Lanier was facing away from Plaintiff, the forklift part of the PIT struck Lanier's right elbow. Lanier called the Postal Service police and then sought medical treatment at the station. (See Ruggiero Decl. 1 8 & Ex. A.)

  Only one of the Postal Service employees interviewed by Aronovici actually witnessed the incident. Atiya Beard, an Page 4 African-American woman, stated that Plaintiff had become "verbally abusive" to Lanier and that she had seen Plaintiff hit Lanier with the PIT. (See Ruggiero Decl. ¶ 9 & Ex. A.) The other employees, Marcelle Darlington and Luis Irizanny, only witnessed Plaintiff yelling at Lanier, but did not witness their further interaction. Irizanny heard Plaintiff arguing with Lanier about how to load the trailer, but Irizanny walked away. Darlington merely heard them arguing, but did not hear the content of the argument. (See Ruggiero Decl. ¶ 9 & Ex. A.)

  Based on his investigation, Ruggiero determined that Plaintiff should be suspended from duty pending a final decision on what discipline Plaintiff should receive. Ruggiero concluded that Plaintiff had disregarded an order of a supervisor in contravention of Postal Service policy, had done so while operating a PIT in a crowded environment, and, as confirmed by a witness, had struck and injured Lanier with the PIT, (See Ruggiero Decl. ¶ 10.) Ruggiero then informed Jones of his findings and recommendation. Jones agreed with Ruggiero's recommendation, and they issued to Plaintiff an Emergency Placement in Off-Duty Status, dated June 10, 1999, which retroactively placed Plaintiff into off-duty status as of June 8, 1999. (See id. ¶ 11 & Ex. B.)

  Plaintiff filed a grievance contesting the decision. (See Declaration of Geraldine O. Rowe, dated July 31, 2003 ("Rowe Decl."), Ex. A.) Pursuant to the controlling collective bargaining Page 5 agreement, Ruggiero held a Step 1 Grievance Hearing with Plaintiff and a union representative. (See Ruggiero Decl. ¶¶ 12-13.) At the hearing, Plaintiff gave various explanations for his actions, including that he had continued to operate the PIT because of safety concerns, and that Lanier did not have the authority to give him an order because his direct supervisors, Powell and Ali Shahbaaz, had ordered him to load the truck, and it was therefore his responsibility to determine how to load the truck. Plaintiff admitted at the hearing that he had failed to follow Lanier's order. In addition, his supervisors, Powell and Ali Shahbazz, informed Ruggiero that neither one had authorized Plaintiff to disregard another supervisor's order. (See id. ¶ 15 & Ex. C.) For all of these reasons, Ruggiero denied Plaintiff's grievance. (See id.)

  Following the Step 1 Hearing, Ruggiero and Jones decided that Plaintiff's misconduct — disobeying a supervisor's orders while operating a vehicle in a crowded working environment, and causing Lanier injury — was serious enough to merit his dismissal from the Postal Service. They then issued to Plaintiff a Notice of Removal, dated July 14, 1999, which removed Plaintiff from his position with the Postal Service as of August 20, 1999. (See id. ¶ 16 & Ex. D.)

  Plaintiff then sought review of his suspension and termination at the Step 2 and 3 levels of the grievance/arbitration process in the collective bargaining agreement applicable to his position. Page 6 (See Rowe Decl., Exs. B & C.) Plaintiff's grievances were denied, and Plaintiff then sought review of the denials by an arbitrator, then final step in the grievance review process. (See id., Ex. C.)

  After taking testimony, the arbitrator ruled that Plaintiff had disregarded Lanier's order to stop using the PIT to load the truck, and had recklessly continued to operate it, resulting in injury to Lanier. The arbitrator found, however, that it had not been proven that Plaintiff had intentionally assaulted Lanier with the PIT, as was required for discharge under the collective bargaining agreement. (See Rowe Decl., Ex. C.) The arbitrator therefore found that Plaintiff was entitled to immediate reinstatement to his position. Nevertheless, he concluded that,
[b]ecause of the gravity of the infraction, including that it involved operation of a powered industrial truck in a crowded industrial environment, with the result of impact and injury to Supervisor Lanier . . . Mr. Randall is found not to be entitled to an award of back pay on the removal case. In addition, the arbitrator believes that Mr. Randall should consider himself warned to stay away from any such incident in the future and to be sure that his future conduct is fully consistent with the principles of the Joint Statement on Violence in the Workplace.
(Id. at pp. 9-10.)

  Plaintiff was reinstated to his position of mail handler at the DMU, and continues to ...

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