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
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
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
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
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
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
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.
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
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
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 ...