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BLITZER v. PORTER

May 5, 2005.

ANDREW BLITZER, Plaintiff,
v.
JOHN E. PORTER, Postmaster General, United States Postal Service, Defendant.



The opinion of the court was delivered by: DENISE COTE, District Judge

OPINION AND ORDER

On August 13, 2003, Andrew Blitzer filed this pro se action, alleging that five employees of the United States Postal Service ("USPS"), Luciano Rivera, Frances Velazquez, William Andermann, William McDonough, and Sandra Calo, discriminated against him on the basis of his gender, physical appearance, and marital status, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 ("Title VII"). Blitzer further alleges that he was discriminated against on the basis of disability, in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794a ("Rehabilitation Act"); that the USPS violated his constitutional rights to equal protection and due process; that certain employees retaliated against him for his criticism of former employers and his instigation of EEO proceedings; and that the Government is liable for breach of contract and invasion of privacy.

  Following the conclusion of discovery, the Government has moved for summary judgment. For the reasons stated below, the Government's motion for summary judgment is granted.

  Background

  The following facts are undisputed or taken in the light most favorable to the plaintiff, unless otherwise noted. By his own account, Andrew Blitzer ("Blitzer"), a 42-year-old Brooklyn resident, has encountered "interaction problems" throughout his employment history and is often perceived as "causing a commotion" in the workplace. Blitzer acknowledges that his "problem is, in some ways, peculiar to [him]" and that he "often succeed[s] in giving as much as [he] get[s]." Since his teenage years, Blitzer has been unable to obtain or maintain employment both because of his "status as an attractive male" and because of societal discrimination against unmarried men, who are perceived as less responsible than their married counterparts and who bear the brunt of married coworkers' "jealousy and resentment" due to "their perceived freedom."

  On March 4, 1998, Blitzer learned through materials sent to his parents' home that a "pre-screening orientation" for the position of letter carrier in the Bronx would be held on March 6 and that interested parties should report to the James A. Farley post office in Manhattan at 7:15 a.m. The next day, Blitzer filled out a form offer of employment with the USPS. The offer states in capital letters:
THIS OFFER OF EMPLOYMENT IS CONTINGENT UPON YOUR MEETING THE SUITABILITY REQUIREMENTS FOR EMPLOYMENT WITH THE U.S. POSTAL SERVICE.
SPECIFICALLY, IF DEROGATORY INFORMATION SUCH AS CRIMINAL CONVICTIONS (NOT INDICATED ON YOUR PS FORM 2591, APPLICATION FOR EMPLOYMENT) AND/OR UNSATISFACTORY EMPLOYMENT REFERENCES RELEVANT TO THE SUITABILITY REQUIREMENTS SHOULD DEVELOP, YOUR EMPLOYMENT WILL BE TERMINATED.
(Emphasis added.) The form further provides in bold letters that "[T]HIS OFFER OF EMPLOYMENT IN NO WAY CONSTITUTES A WAIVER OF THE SUITABILITY REQUIREMENTS OF THE UNITED STATES POST OFFICE." Blitzer signed this form on March 5.
  Among the above-referenced USPS suitability requirements is a provision that concerns an applicant's work history. That requirement states that
[a]n eligible may be eliminated from consideration for employment because of previous unsatisfactory service. This may include postal, private sector, or other agency employment, including debarment by the Office of Personnel Management. The service must have been long enough to be considered a full and fair trial, and the character of the service must have been such that the eligible is unlikely to be able to perform satisfactorily in the new position.
(Emphasis supplied.) In order to give context to the above-quoted requirement, the USPS supplements it with a nonexhaustive list of circumstances that may constitute "previous unsatisfactory service." These circumstances include an "unstable work record."

  The USPS Orientation

  At approximately 7:20 a.m. on March 6, Blitzer arrived at the orientation eating a breakfast sandwich. As he attempted to enter the room with another applicant, who was drinking a beverage, Blitzer was stopped by Luciano Rivera ("Rivera"), a human research specialist in the personnel services office of the USPS's New York district. In a "rude and disrespectful manner," Rivera explained to Blitzer and the other man that food and drink were not allowed in the orientation. Blitzer then asked him if he could finish, to which Rivera brusquely responded, "Yes, but hurry up," and indicated, through pointing to the hallway, where Blitzer should eat. Blitzer explains that he was "rather shocked by Mr. Rivera's manner of speaking, especially since this was the first contact [he] had with him." In "a quiet aside" to the other applicant, Blitzer remarked that Rivera's treatment of them was "like the military," a comment which Blitzer does not know if Rivera overheard.

  Once Rivera initiated the orientation, he informed those in attendance that while a "clean driving record" was a prerequisite for the position, there were no other "experience requirements." Rivera further told the applicants that during training, they would have to undergo a driving test, and that renting a U-Haul would be a wise way to prepare for such a test. Rivera explained to the applicants that if, at any point in their USPS employment, they did not have a clean driving record, "the union would do nothing" to help them. Rivera then instructed the applicants to complete PS Form 2591, the USPS's application for employment. Rivera noted that the USPS would hire from the "then active list until the next list came out," predicting that this would happen in June 1998. Collectively, these representations left Blitzer with the impression that "those who were not eliminated would be hired" and that hiring would be done in list order.

  As Blitzer had difficulty understanding Rivera's instructions concerning the application with respect to listing periods of unemployment, Blitzer requested Rivera's assistance. Rivera "snapped" that Blitzer "ask[ed] too may questions." As submitted, Blitzer's application revealed that in the ten years from March 1988 through March 1998, his work history contained several periods of unemployment that totaled seven years and seven months, including one period of unemployment that lasted over two and one-half years. His longest period of employment, by contrast, lasted eight months. Blitzer does not consider himself to have a stable work history.

  At some point during the orientation, Rivera told the assembled applicants that Frances Velazquez ("Velazquez"), then a human resource specialist in the New York district's personnel services office, would be arranging interviews for applicants on or around March 9 and that the interviews would take place two to three weeks later. Rivera also explained to the applicants that their orientation was supposed to include a tour of the postal handling facilities so that they could "become familiar with how the mail was handled." Given the duration of the orientation, Rivera asked the applicants to vote as to whether they wanted to skip the tour in order to leave earlier. After they unanimously voted in favor of forgoing the tour, Rivera then asked them if they were willing to represent that they had taken a tour if Velazquez asked during their interviews. Again, all present agreed, although Blitzer found the request to be "suspicious."

  At this point in the orientation, six or seven of the applicants, including Blitzer, were asked to complete a supplement to the application that inquired whether they had ever been convicted of a crime, had been fired from a job, or had resigned in lieu of being fired. In response, Blitzer provided two responses that he "anticipated might offend [a USPS] hiring official." First, Blitzer noted that he had been terminated by the New York City Child Welfare Administration after six months of working as a caseworker and explained his termination as the result of his difficulties in ascertaining whether children were at imminent risk of harm if they remained in their homes. Specifically, Blitzer explained, after his supervisor accompanied Blitzer on a home visit to help him identify what does and does not constitute an imminent risk of harm to a child, the supervisor told him that casework was not the right job for him, thereby leading to his termination after "an unsuccessful attempt to find him a desk job." Blitzer felt, however, that he needed to explain this situation so that USPS personnel officials would not think that he had committed negligence or wrongdoing while under the CWA's employ, particularly given some of the accusations surrounding CWA employees at the time.

  With respect to his resignation from the New York City Taxi and Limousine Commission ("NYC TLC"), at which he served as a technical support aide for three months, Blitzer stated on the form that as the most recent hire, he was scheduled to be laid off for budgetary reasons but that the personnel director informed him that it would be in his best interest to instead resign as he had been late to work seven times in his short tenure. Still visible on the form, although crossed out, was Blitzer's assertion that the personnel director threatened that his career would be damaged if he didn't resign voluntarily.

  After Blitzer finished filling out the supplement, Rivera escorted him and the other applicants required to complete the supplement to the anteroom of a large room, in which they waited to see William Andermann ("Andermann"), another human resource specialist with the New York District's personnel services office. Blitzer was the last applicant seated, and as such, the last person in line to meet with Andermann. For an hour and a half, Andermann silently "pushed the [applications] around on his desk" while wearing a "very strange expression of a kind of numb rage." Observing this behavior, Blitzer began to think "that [Andermann's] enraged behavior was triggered" by his application. When Andermann, who wore an "obviously exasperated look" on his face, called Blitzer in, he asked him in a facetious tone whether he drove a taxi, to which Blitzer responded that he had not driven a taxi but simply worked for the TLC and had been laid off. Andermann also inquired about Blitzer's termination from the CWA. Blitzer alleges that he remembers little of this portion of the conversation but that he assured Andermann that his termination occurred more than five years prior. Fearful that "a former boss might be saying something negative about [him] behind his back," Blitzer expressed his concern that he might be "blackballed" and asked Andermann if he could dispute the USPS's failure to hire him, if such a result occurred. Andermann said yes. Blitzer also sought to explain further the details of his departures from the TLC and CWA, declaring that he didn't want to lie to the federal government. At this point, Andermann "patronizingly" placed his hand across Blitzer's back, and guided him back toward Rivera's room.

  Blitzer then had an individual conference with Rivera, during which Blitzer asked if he could list a later availability date on his application in order to take driving lessons to "refresh [his] driving skills." Rivera consented to this request and then asked Blitzer if he had ever served in the military. Recalling Rivera's earlier remark that Blitzer asked too many questions, Blitzer shot back, "You wouldn't want someone who asked too many questions on the front lines, would you?"

  After concluding his discussion with Rivera, Blitzer, along with the other applicants, was then introduced to Velazquez, who, to Blitzer's "amaze[ment]," was "wearing a rather short skirt" for a person in authority. According to Blitzer's own complaint, he "moved his upper torso to get a look" of Velazquez's skirt, due to "[t]he normal male reaction at seeing a scantily clad female." Velazquez's attire also aroused Blitzer's fear that she would catch him looking at her legs and that he would suffer in the application process as a result. Indeed, upon noticing Blitzer staring at her, Velazquez "began laughing hysterically" and walked away. Blitzer believes that she shared this interaction with the other hiring officers with the intention of ensuring that Blitzer would not be hired; he does not allege, however, that she actually did so.

  Blitzer and the other applicants were then sent to take a urine test. As he waited in line, another applicant distributed Velazquez's phone number, explaining that those applicants who were not scheduled to be interviewed later that day should call her to schedule an appointment. After Blitzer completed the test, he was released for the day.

  Orientation Follow-Up and the Interview

  Following the orientation, Blitzer took a number of steps to prepare for employment with the USPS. On March 9, 11, and 17, for instance, Blitzer took driving lessons. Similarly, on March 14, pursuant to Rivera's advice, he rented a U-Haul truck and practiced driving with a friend. Additionally, on March 13, Blitzer called Velazquez and set up an interview for March 20. On the day of his interview, Blitzer arrived in a suit and waited for Sheree Ashe, who would be conducting his interview. As he waited, Velazquez passed by and said, "Oh, hello, Mr. Blitzer" in what Blitzer perceived as an exaggeratedly high-pitched voice. Andermann then also walked by, trailing behind an African-American female in her twenties. With a look of "fake surprise" on his face, Andermann pointed his finger at the woman he was following. Blitzer offers various interpretations of this gesture, but he thinks that Andermann's likely intention was either to demonstrate that any blame for a decision not to hire Blitzer should fall on other hiring officials or to purposefully embarrass himself in front of Blitzer so as to avoid hiring Blitzer.

  At the beginning of the interview, Ashe asked Blitzer if he went on a tour of the handling facilities during his orientation. After a moment's hesitation, he replied, "No." Ashe then excused herself for approximately ten minutes, during which time Blitzer revised some information on his application with Ashe's consent. Blitzer felt throughout the interview that Ashe had been "put up to something by someone," but nonetheless, when he asked her if he would be hired, she represented that he would, assuming that his references "check out and [he] pass[es] the physical." Blitzer pressed Ashe for a time frame for her decisionmaking process; her reply was in the vein of "don't call us, we'll call you."

  On April 8, Blitzer took the entry-level examination for the triborough district. On April 20, he phoned the USPS personnel office, and Andermann answered. Blitzer asked to make an appointment to take the medical exam, and Andermann told him that all carrier positions in the Bronx had been filled as of the previous week and that they were only filling a few positions as needed." Then, Andermann "rudely and abruptly hung up the phone." Having read in the New York Daily News that the USPS was again accepting applications, on May 24, Blitzer returned to the Farley Post Office to obtain an application and saw Rivera on his way in. According to Blitzer, Rivera's "facial expression indicated that he might not be thrilled with my presence." When Blitzer left the building, and again saw Rivera, Rivera "hurriedly" and "nervously" started to talk with a group of women.

  Upon returning home from the post office that day, Blitzer again called the USPS personnel office and reached Ashe. After introducing himself and explaining that he interviewed two months earlier, she replied, "Only two months?" Assuming on the basis of Rivera's representations that applicants would be hired in list order, Blitzer asked if his number had been reached on the list. Ashe responded that the lists had been merged and that his list was combined with a prior list. Blitzer then inquired as to whether he had been disqualified, which Ashe answered in the negative while instructing Blitzer to be patient. At this point, Blitzer heard a third party, whom he believes to have been Velazquez, shout, "No pretty boys! Don't blow us up!" This made Ashe laugh "hysterically," and after thanking her, Blitzer hung up. Approximately two months later, on July 31, Blitzer again phoned the personnel office, and a woman answered the phone. After he gave his name and explained that he was calling regarding the status of his application, the woman replied that she needed to ask Velazquez. With Blitzer on the line, the woman informed Velazquez of his call, and Blitzer overheard ...


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