Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

TAYLOR v. POTTER

August 16, 2004.

PIERRE TAYLOR, Plaintiff,
v.
JOHN E. POTTER, Postmaster General, Defendant.



The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge

OPINION AND ORDER

Plaintiff Pierre Taylor brings this Title VII action against the United States Postal Service ("U.S.P.S." or the "Postal Service") claiming that he was suspended three times and allegedly denied lunch breaks and overtime due to racial discrimination and retaliation. (Dkt. No. 2: Compl.) Taylor is now represented by a special guardian ad litem for purposes of this litigation, who in turn is represented by counsel. (Dkt. No. 70: 9/10/03 Order.) Presently before the Court is the U.S.P.S.'s summary judgment motion. For the reasons stated below, the motion (Dkt. No. 82) is GRANTED.

FACTS

  Pierre Taylor began working full-time for the Postal Service in 1981. (Dkt. Nos. 90 & 83: Taylor & Potter 56.1 Stmts. ¶ 1; Dkt. No. 87: Normand Aff. Ex. B: Taylor Dep. at 22, 24.) From 1991 to 1998, Taylor worked at the Bowling Green Station Post Office in New York City as a distribution clerk responsible for dispatching, which includes receiving, loading, and unloading trucks. (Taylor & Potter 56.1 Stmts. ¶¶ 2-3; Taylor Dep. at 33-35.) The June 18, 1997 Incident and Taylor's Suspension

  On June 18, 1997, Taylor was assigned to work the night shift at the Bowling Green Station. (Taylor & Potter 56.1 Stmts. ¶ 4; Taylor Dep. at 140.) At the start of that shift, no regular supervisor was present. (Taylor & Potter 56.1 Stmts. ¶ 5; Taylor Dep. at 69.)

  When Robin Carretta, a letter carrier at Bowling Green Station, arrived for work around 10 p.m. on June 18, she was telephoned by either a station manager or a supervisor who informed her that she was the acting supervisor until another supervisor arrived at around 5:00 or 6:00 a.m. the next morning. (Taylor & Potter 56.1 Stmts. ¶ 6; Normand Aff. Ex. H: Carretta Dep. at 18, 22-23.) This was the first time Carretta had been an acting supervisor at Bowling Green Station. (Taylor 56.1 Stmt. ¶ 6; Carretta Dep. at 24.) Taylor did not know that Carretta was asked to serve as an acting supervisor. (Taylor 56.1 Stmt. ¶ 6; see also Taylor Dep. at 69: "No one was in charge. . . . There were no supervisors there.")

  Taylor "clocked in" for work at 11:07 p.m., clocked out at 12:33 a.m., and went outside.*fn1 (Taylor & Potter 56.1 Stmts. ¶¶ 7-8; Taylor Dep. at 68; Kalman Aff. Ex. K.) Taylor went outside "waiting for a supervisor to arrive to inform the supervisor that he was ill and unable to work." (Taylor 56.1 Stmt. ¶ 11; Taylor Dep. at 68.) While Taylor was outside, sanitation workers and postal police rang the doorbell in the basement dispatch area. (Taylor & Potter 56.1 Stmts. ¶ 9; Carretta Dep. at 22, 25, 27, 35.) Carretta had expected Taylor to open the door, and she paged Taylor several times over the intercom. (Taylor & Potter 56.1 Stmts. ¶ 10; Carretta Dep. at 22, 35.) Because Taylor did not open the door, Carretta had to leave the work floor and go downstairs to do so. (Taylor & Potter 56.1 Stmts. ¶ 12.)

  When Taylor eventually came back inside, he and Caretta "got into a verbal dispute." (Taylor & Potter 56.1 Stmts. ¶ 13; Carretta Dep. at 28-29; Taylor Dep. at 77-79.) Carretta states that during the dispute she asked Taylor "why" he was absent from his work station, although Taylor states that Carretta asked "where" he was. (Taylor & Potter 56.1 Stmt. ¶ 14; Carretta Dep. at 28-29; Taylor Dep. at 77-79.) According to Taylor, when he entered the building, Carretta approached him, yelling, "`Taylor, where the fuck you been? I been looking all over for your fucking ass. I been paging you for 40 minutes. I'm not doing your motherfucking job. Go downstairs. I'm taking you off the clock for 40 minutes." (Taylor 56.1 Stmt. ¶ 14; Taylor Dep. at 78.) Taylor asked Carretta "[w]ho died and left her in charge," said that he did not have to listen to her, and might have called her "stupid." (Taylor & Potter 56.1 Stmt. ¶¶ 15-16; Taylor Dep. at 78-79.) Taylor got upset and raised his voice — according to Taylor, so Carretta could hear him over her own yelling. (Taylor & Potter 56.1 Stmts. ¶ 18; Taylor Dep. at 78.) While standing four or five feet away from Carretta, Taylor also "very possibl[y]" used profanity when speaking to a co-worker, Alan Negron, about Caretta, who heard his comments to Negron. (Taylor & Potter 56.1 Stmts. ¶ 16; Taylor Dep. at 79, 95, 101-03; Dkt. No. 87: Normand Aff. Ex. V: Negron Stmt.) Taylor admits that he might have talked with his hands or put his hands on his head during the dispute. (Taylor & Potter 56.1 Stmts. ¶ 17; Taylor Dep. at 80-81.)

  Carretta called the postal police because of the dispute. (Taylor & Potter 56.1 Stmts. ¶ 20; Taylor Dep. at 78.) When the postal police — two of whom were African American — arrived, Carretta told them that she was acting supervisor and asked that they remove Taylor because he was "`menacing her after she questioned why he was away from his work station for 45 minutes.'" (Taylor & Potter 56.1 Stmts. ¶¶ 20-21; Dkt. No. 84: Eichenauer Aff. Ex. A: 6/18/97 Incident Rpt.) The postal police took statements from Carretta, Taylor, and another Bowling Green Station employee, Richard Lewis. (Taylor & Potter 56.1 Stmts. ¶ 22; Eichenauer Aff. ¶ 9 & Exs. B-D.)

  Carretta's written statement reported that Taylor "made threatening gestures, yelled and cursed at her, and repeatedly ignored her request to return to his work station." (Taylor & Potter 56.1 Stmt. ¶ 23; Eichenauer Aff. Ex. B: Carretta Stmt.) Lewis' statement corroborates Carretta's account that Taylor "got upset and started to shout at Carretta," but also notes that Lewis did not witness the entire dispute. (Taylor & Potter 56.1 Stmts. ¶ 24; Eichenauer Aff. Ex. C: Lewis Stmt.) Taylor told the postal police that he "`never stated anything to Robin [Carretta] except that no one to [his] knowledge . . . put her in charge.'" (Taylor & Potter 56.1 Stmts. ¶ 26; Eichenauer Aff. Ex. D: Taylor Stmt.; Taylor Dep. at 115.) Around 2:30 a.m., after taking the statements, the postal police escorted Taylor out of Bowling Green Station and told him "`not to return until [the following day] when the regular [s]upervisor was on duty.'" (Taylor & Potter 56.1 Stmts. ¶¶ 27-28; Eichenauer Aff. Ex. A: Carretta Stmt.; Taylor Dep. at 113.) Carretta did not refer to Taylor's race in any way during the incident. (Taylor & Potter 56.1 Stmts. ¶ 41; Taylor Dep. at 134; Carretta Dep. at 88.)

  Antonio Juan, a regular supervisor, began his shift at around 2:30 a.m. (Taylor & Potter 56.1 Stmts. ¶ 29; Dkt. No. 85: Kalman Aff. Ex. K: 6/8/97 Shift Summ.) Juan was a new supervisor who had never supervised, met or spoken to Taylor. (Taylor & Potter 56.1 Stmts. ¶¶ 30-31; Taylor Dep. at 105-06, 141-42.) Juan issued Taylor "a retroactive notice," in which the Bowling Green Station manager Ronald Hart concurred, stating that Taylor was "`suspended emergently without pay on 6/18/97, from 0250 to 0750 (balance of tour).'" (Taylor & Potter 56.1 Stmts. ¶ 32, 34; Normand Aff. Ex. J: 6/18/97 Emergency Suspension Notice; Taylor Dep. at 146.) The suspension notice reads:
You engaged in an act of misconduct and it would be disruptive to day-to-day postal operations for you to remain in a duty status.
It appeared that your retention in an active duty status may have resulted in damages to government property or might have been detrimental to the interest of the government or injurious to you, your fellow workers, or the general public.
  You have the right to file a grievance under the Grievance Arbitration Procedure . . . (Normand Aff. Ex. J: 6/18/97 Emergency Suspension Notice; Taylor & Potter 56.1 Stmts. ¶¶ 32-34.) Taylor refused to sign for receipt of the Emergency Suspension Notice. (Normand Aff. Ex. J: 6/18/97 Emergency Suspension Notice at 2.) Taylor returned to work the following night and was given overtime hours on that date to make up for the time lost. (Taylor & Potter 56.1 Stmts. ¶ 35.) On June 19, 1997, Juan issued Taylor a "Notice of Suspension of 14 Days or Less," which stated:
 
You are hereby notified that you will be suspended for a period of 7 calendar days beginning on 9/6/97. You are to return to duty on 9/13/97. The reasons for this suspension are:
Charge #1 — Acting in an unsafe manner. Charge #2 — Creating a disturbance on the workfloor.
At approximately 0130 hours you were asked by Robin Carretta where you had been for the last 40 minutes. She had been paging you because you were missing from the Dispatch Area and the Private Sanitation Co. and the Postal Police were trying to obtain entrance to the Station and you were not there to admit them. She then had to go to the deck and admit them. You responded to Ms. Carretta to mind her fucking business, that she was only a fucking clerk and you were advancing towards her raising your arms and hands and cursing at her.
Carrier Lewis heard this conversation and stated that you were very upset and [were] shouting at Ms. Carretta. He also states that she was requesting you to please return to your work area. Ms. Carretta warned you that if you didn't stop yelling and cursing that she was going to call the Postal Police and you responded "I don't give a fuck when you do; you're nothing but a stupid clerk."
The Postal Service has zero tolerance for acts of this kind and we will not ever have any of our employees abused by another co-worker.
You have a right to file a claim for Unemployment Insurance (after the effective date of this action) . . . You have a right to file a grievance under the General/Arbitration procedure . . .
(Normand Aff. Ex. K: 6/19/97 Notice of Suspension; Taylor 56.1 Stmts. ¶¶ 36-37, 39.) Juan's description of the incident is in agreement with Carretta's version of events.*fn2 (Taylor & Potter 56.1 Stmts. ¶ 39; Norman Aff. Ex. K: 6/19/97 Notice of Suspension of 14 Days or Less; Eichenauer Aff. Exs. B-C.) The manager of the Wall Street Post Office, Kenneth Rodin, who is black, concurred in the Notice of Suspension. (Taylor & Potter 56.1 Stmts. ¶ 38; Normand Aff. Ex. F: Thompson Dep. at 52; Taylor Dep. at 146-47.) Taylor refused to sign for receipt of the notice of suspension. (Normand Aff. Ex. K: 6/19/97 Notice of Suspension of 14 Days or Less, at 2.)

  Taylor does not dispute that Juan "was the supervisor who formally issued and signed the Notice of Suspension," but "submits that this disciplinary notice was issued at the instigation of Bowling Green Station Supervisor Gerald McCall . . . based on racially discriminatory and retaliatory motives." (Taylor 56.1 Stmt. ¶ 36; see also pages 14-16 below.) Although Taylor testified at his deposition that he believed Juan did not know that the statements in the notice of suspension were false, particularly because Juan had never supervised Taylor before and therefore had no reason to lie (Potter 56.1 Stmt. ¶ 40; Taylor Dep. at 105-06), Taylor's counsel "disputes that Mr. Taylor is competent to testify as to whether Mr. Juan knew the statements were untrue or whether Mr. Juan would have reason to lie." (Taylor 56.1 Stmt. ¶ 40.)

  Prior to the June 18, 1997 incident, Taylor had filed EEOC complaints against Postal Service supervisors including Gerald McCall (see pages 14-15 below) in May 1986, February 1994, June 1996, and October 1996. (Dkt. No. 86: Sturman Aff. 5 & Ex. A; see Taylor & Potter 56.1 Stmts. ¶ 43.) None of these complaints involved Carretta or Juan. (Taylor & Potter 56.1 Stmts. ¶ 42.)

  It is undisputed that Taylor was permitted to work overtime after the incident, including 6.65 overtime hours on June 19, 1997. (Potter 56.1 Stmts. ¶¶ 35, 44; Taylor Dep. at 161; Kalman Aff. Ex. J: Taylor Clock Rings Summ.) On at least one occasion after June 18, Taylor declined to work overtime hours. (Taylor & Potter 56.1 Stmts. ¶ 45.) The amount of overtime Taylor worked after the incident is disputed (Taylor 56.1 Stmt. ¶ 44), but Taylor does not specify how many hours of overtime he allegedly was denied. (See Dkt. No. 92: Taylor Br. at 29.)

  Taylor disputes Potter's statement that Taylor "received a lunch break on each shift that he worked between June 18, 1997 and February 5, 1998" and that his lunch breaks averaged 30.24 minutes long. (Potter 56.1 Stmt. ¶ 46, Kalman Aff. Ex. J: Taylor Clock Rings Summ.) Taylor alleges that he was "regularly denied lunch breaks" during this period. (Taylor 56.1 Stmt. ¶¶ 46, 47; Taylor Dep. at 184-85.)

  Taylor's Unapproved September Absence and the October 9, 1997 Notice of Removal

  On September 17, 1997, Taylor was admitted to the emergency psychiatric unit of Kings County Hospital Center.*fn3 (Taylor & Potter 56.1 Stmts. ¶ 48; Normand Aff. Ex. W: 9/21/97 Psychiatric Eval.; Taylor Dep. at 255.) Taylor was absent from work without approved leave from September 22 to October 9, 1997. (Taylor & Potter 56.1 Stmts. ¶ 49; Taylor Dep. at 255; Normand Aff. Ex. N: 10/9/97 Notice of Removal; Kalman Aff. Ex. J: Taylor Clock Rings Summ.) The Postal Service claims that it "did not know when or if [Taylor] would be returning to work.*fn4 (Potter 56.1 Stmt. 50.)

  On September 25, 1997, Postal Service supervisor Nicholas Ochlan sent Taylor a "NY Form P2-72 notice." (Taylor & Potter 56.1 Stmts. ¶ 51; Normand Aff. Ex. L: 9/25/97 P2-72 notice.) The P2-72 notice "directed [Taylor] to report for duty at once or submit satisfactory evidence substantiating the cause of his absence." (Taylor & Potter 56.1 Stmts. ¶ 53; Normand Aff. Ex. L.) The notice stated that if Taylor's absence was due to illness, he must "`submit a signed and dated medical certificate immediately on a doctor's letterhead indicating medical facts sufficient to support the period of incapacity, [the] date [Taylor could] return to duty, and whether [Taylor was] able to return to full duty.'" (Taylor & Potter 56.1 Stmts. ¶ 54; Normand Aff. Ex. L.) The notice "specifically warned that "`[f]ailure to comply with the foregoing will result in disciplinary action being issued to remove you from the Postal Service.'" (Taylor & Potter 56.1 Stmts. ¶ 55; Normand Aff. Ex. L.)

  More than two weeks after issuing the P2-72 notice, Ochlan issued a notice of removal dated October 9, 1997. (Taylor & Potter 56.1 Stmts. ¶ 58; Normand Aff. Ex. M: 10/9/97 Notice of Removal.) Taylor had not reported to work for more than two weeks, had not provided any medical evidence to substantiate his absence. (Taylor & Potter 56.1 Stmts. ¶¶ 57, 61; Normand Aff. Ex. L: P2-72 Notice; Normand Aff. Ex. M: 10/9/97 Notice of Removal; Normand Aff. Ex. Z: 10/10/97 Rose Letter.) The notice of removal charges that Taylor was "continuously absent from his scheduled tour of duty without permission beginning on September 22, 1997" and "fail[ed] to comply with the P2-72 notice to submit satisfactory documentation of his absence." (Taylor & Potter 56.1 Stmts. ¶ 59; Normand Aff. Ex. M: 10/9/97 Notice of Removal.) Taylor's seven-day suspension dated June 19, 1997 was considered as part of the discipline decision. (Taylor & Potter 56.1 Stmts. ¶ 60; Normand Aff. Ex. M: 10/9/97 Notice of Removal.)

  Taylor concedes that he received the P2-72 notice and that he understood that he was required to provide medical evidence that his absence was due to illness. (Taylor & Potter 56.1 Stmts. ¶ 56; Taylor Dep. at 264, 271.) Taylor argues, however, that although the notice of removal is dated October 9, 1997, shop steward Shirley Thompson did not sign it until October 14, 1997. (Taylor 56.1 Stmt. ¶ 58; Normand Aff. Ex. M: 10/9/97 Notice of Removal at 2.) Between October 9 and October 14, Taylor asked Kings County Hospital social worker Janet Rose to provide a "doctor's note" to explain his absence. (Taylor 56.1 Stmt. ¶ 58; Rose Dep. at 22.) In an October 10, 1997 letter on Kings County Hospital letterhead, Rose wrote that Taylor "was `being seen in the Crisis Intervention Center since 9/24/97 to present' and that `[i]t is recommended that he does not return to work until after his re-evaluation in 3 weeks.'" (Taylor 56.1 Stmt. ¶ 58; Taylor & Potter 56.1 Stmts. ¶ 63; Cogan Aff. Ex. Q: 10/10/97 Rose Letter.) It is undisputed that Rose's letter "was not signed by a physician, nor did it contain any medical facts or diagnosis." (Taylor & Potter 56.1 Stmts. ¶ 63.) Taylor hand-delivered Rose's letter to the Postal Service on October 14, 1997. (Taylor & Potter 56.1 Stmts. ¶ 62; Taylor 56.1 Stmt. ¶ 58; Dkt. 88: Potter Br. at 23 n. 13.) Taylor did not submit any other documentation about his absence. (Taylor & Potter 56.1 Stmts. ¶ 62; Taylor Dep. at 258-59, 272-73.)

  In addition, although Taylor is a veteran (Dkt. No. 90: Taylor 56.1 Stmt., Add'l Relevant Facts ¶ 25; Taylor Dep. at 18), the notice of removal classified Taylor's discipline as within the province of the "Non-Veteran Bargaining Unit." (Taylor 56.1 Stmt., Add'l Relevant Facts ¶ 24; Cogan Aff. Ex. O: 10/9/97 Notice of Removal.) McCall admitted that stations generally have records indicating which employees are veterans and that the supervisor administering discipline is responsible for determining whether an employee is a veteran. (Taylor 56.1 Stmt., Add'l Relevant Facts ¶ 26; Dkt. No. 87: Normand Aff. Ex. I: McCall Dep. at 106-07.) Taylor testified that he informed Ochlan and McCall that he was a veteran when he received the notice of removal, and that they "did nothing to correct the situation." (Taylor 56.1 Stmt., Add'l Relevant Facts ¶¶ 27, 34; Taylor Dep. at 254.) Thompson testified she was not aware that Taylor was a veteran and that Taylor never complained about his categorization as a non-veteran on the notice of removal. (Potter Reply Br. at 10 n. 9; Thompson Dep. at 67, 70-72.)

  Thompson, Taylor's shop steward, filed a grievance on Taylor's behalf regarding the notice of removal. (Taylor & Potter 56.1 Stmts. ¶ 64; Normand Aff. Ex. O: 10/25/97 Grievance Step 1 Summ.; Thompson Dep. at 64-65, 67-68.) Thompson requested that the disciplinary proceedings be delayed because she had been unable to reach Taylor, but her request was denied. (Taylor 56.1 Stmt. Add'l Relevant Facts ¶ 28-29; Cogan Aff. Ex. C: Thompson Dep. at 67.) Thompson settled the grievance with Ochlan by accepting a fourteen-day suspension on Taylor's behalf in lieu of removal.*fn5 (Taylor & Potter 56.1 Stmts. ¶ 65; Normand Aff. Ex. O: 10/25/97 Grievance Step 1 Summ.; Taylor 56.1 Stmt. Add'l Relevant Facts ¶ 29; Thompson Dep. at 64-65, 67-68.)*fn6

  Taylor's Tardiness and January 28, 1998 Notice of Removal

  It is undisputed that when Taylor returned to work at the Bowling Green Station on November 17, 1997, he was "tardy." (Taylor & Potter 56.1 Stmts. ¶¶ 67-68; Kalman Aff. Ex. J: Taylor Clock Rings Summ.) On December 11, 1997, Taylor was thirty-two minutes late for work, because he fell asleep on the train. (Taylor & Potter 56.1 Stmts. ¶ 69; Normand Aff. Ex. AA: 12/11/97 Request for or Notification of Absence.) On January 5, 1998, Taylor was twenty-six minutes late, claiming a delay in public transportation. (Taylor & Potter 56.1 Stmts. ¶ 70; Normand Aff. Ex. BB: 1/5/98 Request for or Notification of Absence.) On January 13, 1998, Taylor was two hours and fifteen minutes late, claiming his medication caused him to oversleep. (Taylor & Potter 56.1 Stmts. ¶ 71; Normand Aff. Ex. CC: 1/13/98 Request for or Notification of Absence.)*fn7 On January 21, 1998, Ochlan issued Taylor a second notice of removal on grounds of "excessive tardiness." (Taylor & Potter 56.1 Stmts. ¶¶ 72-73; Normand Aff. Ex. P: 1/21/98 Notice of Removal; McCall Dep. at 135.) Like the October 1997 notice of removal, the January 21, 1998 notice of removal provided that Taylor should receive "Non-Veteran Bargaining Unit" treatment. (Taylor 56.1 Stmt. Add'l Relevant Facts ¶ 33; Normand Aff. Ex. P: 1/21/98 Notice of Removal.)

  Taylor argues that the second notice of removal was issued "out of retaliatory animus on the part of both Messrs. McCall and Ochlan, against whom Mr. Taylor had engaged in protected EEO activity after being suspended for continuous A.W.O.L. despite the Rose Letter submitted to Mr. McCall by Mr. Taylor on or before October 14, 1997." (Taylor 56.1 Stmt. ¶ 73; Cogan Aff. Ex. R: 12/10/97 Info. for Precompl. Counseling form; Taylor Dep. at 173-74, 289-93.)

  Thompson filed a grievance on Taylor's behalf regarding the January 21, 1998 notice of removal. (Taylor & Potter 56.1 Stmts. ¶ 75; Normand Aff. Ex. Q: 1/29/98 Grievance Step 1 Summ.) Once again, Thompson settled the grievance with Ochlan by reducing the notice of removal to a fourteen-day suspension. (Taylor & Potter 56.1 Stmts. ¶ 76; Normand Aff. Ex. Q: 1/29/98 Grievance Step 1 Summ.) According to Taylor, supervisor Gerald McCall attended the Step 1 meeting and "coerced Mr. Taylor to accept another two-week suspension by telling him that he would be removed if he ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.