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September 16, 2005.

JOHN E. POTTER, Postmaster General, United States Postal Service, Defendant.

The opinion of the court was delivered by: CHARLES SIRAGUSA, District Judge



This is an employment discrimination action alleging retaliation and constructive discharge in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq. Now before the Court is defendant's motion [#3] to dismiss the amended complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure (" Fed.R.Civ.P.") 12(b)(6), and alternatively, for summary judgment pursuant to Fed.R.Civ.P. 56, and plaintiff's cross-motion [#9] for leave to conduct discovery pursuant to Fed.R.Civ.P. 56(f). For the reasons that follow, defendant's application for summary judgment is granted, plaintiff's application is denied, and this action is dismissed.


  This is the third employment discrimination lawsuit which the plaintiff has filed against the United States Postal Service. See, Johnson v. Henderson, 90-CV-7138 CJS and Johnson v. Potter, 04-CV-6239 CJS. Because they are relevant to the instant case, the Court will set forth the facts of the two previous lawsuits. Plaintiff is an African American male who was hired by the United States Postal Service in Buffalo, New York in 1985. In September 1989, plaintiff filed a complaint with the Postal Service's Equal Employment Opportunities Office, alleging that he had been denied a promotion to the position of "204B Supervisor" because of his race. At that time plaintiff's supervisor was Bill Mitchell ("Mitchell"). According to plaintiff, Mitchell promised plaintiff that he would be given another opportunity for promotion to 204B Supervisor, but later reneged on the promise. Plaintiff subsequently commenced a lawsuit in this Court pursuant to Title VII entitled Roland C. Johnson, Jr. v. William J. Henderson, Postmaster General, United States Postal Service, Case No. 90-CV-7138 CJS(F) ("case 90-CV-7138").

  Plaintiff continued working at the Postal Service while his lawsuit proceeded. In or about September 1998, plaintiff was promoted to the position of Claims and Inquiry Clerk, PS-5. At all relevant times thereafter, at the branch where plaintiff worked, there were two other Claims and Inquiry Clerks, Judith Grove ("Grove") and Diana Chandler ("Chandler"). Grove and Chandler held the same job classification as plaintiff, PS-5, but had more seniority than plaintiff. Plaintiff's position was also referred to as "Lost and Found" and "Loose-In-The-Mails" clerk. In that capacity, plaintiff was responsible for handling items inadvertently mailed, dropped into mailboxes, or lost at the post office, such as bank envelopes containing cash and checks, as well as personal property such as purses, wallets, keys, gift certificates, and photographs. Plaintiff stored these items in a locked cabinet in his work area. Plaintiff was the only one of the three Claims & Inquiry Clerks who routinely handled lost and found money. Plaintiff also worked with a Kathy Deneka ("Deneka"), whose title was Complaints and Inquiry Clerk, PS-6. Plaintiff's supervisor was Maryann Molenda ("Molenda").

  Plaintiff's lawsuit in case 90-CV-7138 was tried before the undersigned in November 1998. On the third day of the trial, the parties agreed to a complete settlement. In exchange for settling the lawsuit, defendant agreed to pay plaintiff $90,000.00 and restore 496 hours of sick leave. Plaintiff contends that after the lawsuit was settled, his immediate supervisor, Molenda, began to harass him and retaliate against him.

  The alleged post-lawsuit harassment began with a disagreement between plaintiff and Molenda over the procedures plaintiff was to use for inventorying and storing certain items of mail. According to plaintiff,
supervisor Molenda directed me to keep a special `log' of every single time I went into my overhead cabinet where money and registered mail was kept, in addition to the normal log that identified `Matters Without Address Found in the Mails' that I was required to keep. No other postal employee under Molenda's supervision was subject to this treatment; indeed, my predecessor Lester Morris was only required to maintain the `Matters Without Address Found in Mails' log.
Johnson Aff., 04-CV-6239 [#45] ¶¶ 37-38. While plaintiff refers to "no other postal employee being subject to such treatment," as indicated above, he was the only employee who routinely handled lost and found money. Plaintiff's specific objection was that his predecessor had not been required to keep such a log. Molenda described the event differently, stating that plaintiff
was off from work for approximately 3 days during the early portion of November 1998. When he returned he stated his top drawer was opened and that he remembers locking it when he left. He mentioned that there are only two sets of keys; one he has and one I have. He requested I sign off that he is not responsible for missing items. I denied his request and he filed a grievance where an agreement was reached.
Id., Ex. W. Molenda made no reference to plaintiff having to keep a special "log." The agreement referred to by Molenda, reached between the Postal Service and plaintiff's union, provided, in relevant part:
Management agrees to implement the following actions:
1) Clerk will deposit all monies on a daily basis.
2) Management will establish a inventory log, for all loose in the mail items kept under lock and key. Clerk will annotate on the inventory log final disposition of all items.
3) Manager, Consumer Affairs will arrange to have locks changed on drawers and cabinets.
4) Grievant's supervisor will maintain duplicate key. Whenever duplicate key is issued, the Mgr CA will record the individual name, time/date, and return time/date.
Id., Ex. E. Notably, while plaintiff claimed that he filed the grievance in response to Molenda requiring him to establish a log, the subsequent agreement required the postal service to "establish" such a log, and defendant maintains that plaintiff was only required to keep the log as a result of this agreement.

  In May 1999, Karl Anderson ("Anderson"), one of plaintiff's supervisors, commented that plaintiff's work area was "the dark side of the room." Plaintiff insists that this was a racial slur, although Anderson maintains that he was making a joke based upon the movie "Star Wars." In papers submitted in connection with a summary judgment motion, plaintiff suggested that Anderson's comment was racially motivated because plaintiff and another black employee were the only African-Americans on the side of the room to which Anderson was referring. However, in a deposition, plaintiff testified that there were African Americans stationed on both sides of the room when Anderson made his remark.

  On or about May 27, 1999, plaintiff and his union representative met with the Postal Service's District Manager, Nicholas Fabozzi ("Fabozzi"), to discuss the alleged harassment by Molenda and the "dark side" comment by Anderson. Plaintiff alleges that during the meeting, Fabozzi stated that he "used to participate in the telling of racial jokes" and that it had been "no problem."

  On or about December 2, 1999, Molenda left a post-it note on plaintiff's telephone, directing him to forward calls when he was away from his desk. Plaintiff contends that he was singled out in this regard, and that Molenda did not tell other employees to forward their calls until after he complained of disparate treatment. Molenda, however, maintains that she left similar notes on all of her employees' phones at different times.

  In January 2000, plaintiff claims that he overheard Grove and Deneka having a conversation in which they made comments which, although not about him, he found racially-offensive. Plaintiff states that "they were speaking about `blacks not wanting to work and standing on the corner selling drugs and stuff.'" Plaintiff reported the incident to Molenda, who responded by issuing a memo that stated:
It has come to my attention that employee(s) are using profane or obscene language in the office. This type of behavior will not be tolerated by management. This language is offensive to others. We must keep in mind that this office is a customer service officer, where at no given time [sic], customers are in our office or on the telephone who may also hear this type of language. This also relates to conversations amongst one another (when others can hear you) that may be offensive to others. Our workplace is a professional place of business and we must conduct ourselves in this manner. Thank you for your cooperation.
Pl. Supp. Appendix, 04-CV-6239 [#80], Ex. L. Although this memo was addressed to all of the employees in the office, and was sent to address plaintiff's complaint, plaintiff insists that the memo singled him out to be reprimanded in retaliation for having complained.

  On or about February 16, 2000, Molenda told plaintiff to "drop everything" and handle claims while she and Deneka "had a personal conversation over coffee in her office." On or about March 6, 2000, plaintiff and his union representative again met with Fabozzi to complain about what plaintiff viewed as a continuing pattern of harassment by Molenda, as well as her preferential treatment of Deneka. During the conversation, Fabozzi again referred to his having told racial jokes in the past. Plaintiff asked that Molenda be required to attend "sensitivity training," but Fabozzi dismissed the idea.

  On or about August 18, 2000, Molenda called a unit meeting and announced that she was taking duties that had been performed by the Claims and Inquiry department in Rochester, and was adding them to the Buffalo Claims & Inquiry department. Molenda, in her affidavit submitted in connection with the EEO investigation, described the situation as follows:
I also had 2 Claims & Inquiry clerk positions in Rochester. Due to technology, the workload diminished and those 2 positions were abolished. An 800 line was put in for Rochester customers to call and that line is on all 3 level 5 Claims & Inquiry clerks phones in Buffalo, not just Roland's. A light blinks when there is a call and the first to pick it up takes the call. If no one answers, it rolls over to Claims & Inquiry Clerk Bill Maturski's voice mail. The line is not on the level 6's phone (Kathy Deneka's) since the intent of the line was to assist customers in Rochester with Claims & Inquiry (level 5 positions).
Pl. Appendix to Local Rule 56.1 Counterstatement 04-CV-6239 [#71], Ex. T. Plaintiff initially alleged that Molenda used the occasion to retaliate against him by assigning additional duties only to him. However, he later admitted that the other PS-5 Claims and Inquiry Clerks were also given additional duties similar to the ones he was given. Nonetheless, plaintiff continued to claim that Deneka, was treated preferentially because she did not receive any additional PS-5 work, even though she was a PS-6 clerk.

  Plaintiff also claimed he told Molenda that he was overwhelmed with work and asked for her help, but she refused. According to plaintiff, Molenda said that, if anything, she would consider creating an additional position for someone to assist Deneka in her work.

  On August 25, 2000, plaintiff filed another EEO charge. In the EEO complaint, plaintiff described an incident on August 18, 2000, as follows:
I was `combatively' approached by Consumer Affairs Manager Maryann Molenda. She remarked, `I need to review the way you are doing things, especially the way you handle the money.' This overt racist statement has numerous frequent [sic] since Sept. 1998.
Pl. Appendix to Local Rule 56.1 Counterstatement of Facts, 04-CV-6239 [#71], Exhibits I & U. However, plaintiff subsequently gave a different version of those events:
Immediately after Plaintiff filed his August 25, EEO charge, Molenda aggressively approached Plaintiff in front of others and remarked `I want to review the way you are doing things, the way you are doing them is probably wrong.' (Exhibit A, p. 107, Lines 20-23).
Johnson Aff., 04-CV-6239 [#66] ¶ 70.
  Plaintiff alleged that Molenda subsequently had him bring trays of mail to her for inspection, and kept lists of his tasks, but did not do so for other employees. Plaintiff also claimed that Molenda continued to scrutinize his handling of money. Plaintiff further maintained that Molenda then made a list of his activities, and gave it to the union as proof that plaintiff "did not have enough work to do." On August 30, 2000, Molenda directed that certain work which plaintiff had been performing be performed by another unit known as the "Nixie Unit." On October 11, 2000, Molenda directed the Nixie Unit not to send trays of mail to plaintiff, purportedly to avoid double handling. Molenda also told plaintiff not to continue his usual practice of retrieving mail from the Nixie Unit for processing, because she would get it herself. According to Molenda,
everyone's work was monitored, tallied, counted and recorded, not just Roland's. This was done primarily because of the changes that occurred in Claims & Inquiry workload being done electronically in addition to other changes that HQ made nationally that affected Claims & Inquiry workload. With the ["]loose in the mails["] which Roland works on, I wanted to see what Nixie [Unit] rewrap was giving him. [Nixie Unit has] been know to use us as a dumping ground. I have done this practice with the previous claims and inquiry clerk who now is retired. As a manager, the above monitoring should occur to know the workload and to correct any deficiencies found.
Pl. Appendix to Local Rule 56.1 Counterstatement 04-CV-6239 [#71] Ex. T. Plaintiff, however, claimed that Molenda was scrutinizing his work in order to harass him, and in order to decrease his workload so that she could justify eliminating his position.
  In February 2001, Molenda sent a letter to the president of plaintiff's labor union and to the Postal Service's labor relations specialist, notifying them that she intended to eliminate plaintiff's PS-5 position and create a new PS-6 position. Molenda's letter stated:
This letter is to officially notify you, as outlined in Article 37 of the National Agreement, that position 2336157, Claims & Inquiry Clerk, currently held by Roland Johnson, is under consideration to be rescinded and to post a Complaints & Inquiry Clerk position, level 6. The workload for Claims & Inquiry Clerks [PS-5] will continue to decrease and the workload impacted by the following events:
In Fall of 2000, signature capture (electronic filing) took place. This sharply reduced the workload for Claims & Inquiry eliminating the manual filing and the manual lookups for accountable mail.
Because of the electronic filing of accountable mail, filing claims is conducted in a shorter time frame.
Effective September 1999, the Postal Inspection Service changed the procedures in handling PS Form 1510 (mail loss/rifling report) which sharply reduced the workload for Claims & Inquiry.
A decrease in claims being processed took effect in 1997 because of local adjudication with unnumbered claims. Streamlining efforts on overall claims process is under review by Headquarters.
The National Call Centers that are in place and their continued national roll out will impact the number of calls.
Headquarters is currently identifying process improvements for handling loose in the mail items at the point of discovery. A finished product should be seen sometime in Spring.
The workload for Complaints & Inquiry [PS-6] has steadily increased. Customers have additional means in contacting us with their service issues th[a]n just by telephone or in writing. Service issues are also received electronically through the National Call Centers and the Internet. A review of the workload by the Claims & Inquiry Clerks and Complaints & Inquiry Clerk has been conducted and warrants this decision. I am asking for your input by February 21, 2001.
Molenda Aff., 04-CV-6239 [#79] Ex. A (emphasis added). There is no indication in the ...

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