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