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Downes v. Potter

July 26, 2006


The opinion of the court was delivered by: Joseph F. Bianco, District Judge


Plaintiff Richard Downes brings this action alleging employment discrimination on the basis of his race, in violation of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq., ("Title VII") against John E. Potter, Postmaster General. Plaintiff, who is an African-American male, asserts that he was terminated from his position as a probationary employee for the United States Postal Service ("USPS") as a result of his race. Defendant now moves for summary judgment. For the following reasons, defendant's motion for summary judgment is denied.



Construed in a light most favorable to plaintiff, the non-moving party, the facts are as follows:

1. Plaintiff's Job Position at the USPS

Plaintiff began working as a motor vehicle operator (MVO) for the USPS on May 3, 2003, and was assigned to the Mid-Island Processing and Distribution Center ("Mid-Island"). (Def.'s Rule 56.1 Statement ("Def.'s 56.1") ¶ 1.)*fn1 Plaintiff was in a 90-day probationary period during the start of his employment and, thus, such period was scheduled to end on August 1, 2003. (Id. ¶ 3.)

When he began working for the USPS, plaintiff received approximately two weeks of classroom training and three days of on-thejob training. (Downes Dep. at 39-42.) During the classroom training, plaintiff and his colleagues were instructed that, if they were delayed in completing their assigned route, they should contact a supervisor via two-way radio. (Downes Decl. ¶ 6.) In addition, trainees were told that motor vehicle accidents would not be tolerated, and that nearly every such incident caused by a probationary employee would result in termination. (Downes Decl. ¶ 6; Downes Dep. at 38.)

After completing the assigned training, plaintiff began operating a USPS vehicle on a daily basis. (Downes Dep. at 42-43.) Although drivers had designated shifts and regular routes, the assignments for probationary employees changed based on daily needs. (Downes Decl. at ¶ 7.) Therefore, probationary drivers, such as plaintiff, received assignments upon arrival at Mid-Island for work each day and his shifts and routes varied. (Id.; Downes Dep. at 44, 58.) The vast majority of the time, however, plaintiff worked Tour 3. (Downes Decl. ¶ 7.) Plaintiff reported directly to Andrew Chieffo, who was the Supervisor of Transport Operations ("STO") assigned to Tour 3. (Def.'s 56.1 ¶ 9; Downes Decl. ¶¶ 6-7; Downes Dep. at 44-45.) Chieffo is white. (Def.'s 56.1 ¶ 16.)

From the time he was hired until the incident on July 22, 2003, plaintiff received good reviews regarding his job performance and was never warned or disciplined for inadequately performing his job as a driver. (Downes Dep. at 46-47.) During that period, plaintiff was only criticized once, when he completed his route ahead of schedule and parked his truck when he returned to Mid-Island in an area that was blocking other trucks and he did not leave his keys in the ignition so his truck could be moved. (Chieffo Dep. at 114-15.)

2. The July 22nd Mail Delivery Error

The articulated basis for plaintiff's termination was an incident on July 22, 2003, when plaintiff unintentionally deviated from his assigned route and, according to defendant, caused a mail delivery failure. The following evidence is contained in the record concerning the events of that day.

On July 22, 2003, during the probationary period, plaintiff was assigned a job that required him to go first to the Huntington Post Office to pick up mail for Mid-Island and then go to New Jersey with a different trailer of mail. (Def.'s 56.1 ¶ 4.) Plaintiff, however, misread his route assignment sheet and mistakenly headed towards New Jersey, instead of going to Huntington Post Office first. (Def.'s 56.1 ¶ 5; Downes Decl. ¶ 9.)

Less than an hour after leaving Mid-Island, plaintiff realized that he was not following his route properly. (Def.'s 56.1 ¶ 6.) Plaintiff made various and repeated attempts to contact Chieffo, the supervisor on duty, to advise him of the error and to seek guidance to correct the situation, but was unable to make contact with Chieffo. (Downes Decl. ¶¶ 10-11.) Those unsuccessful attempts included the following: making radio calls for approximately five to ten minutes; using his cellular telephone to call Mid-Island; calling co-workers on their cellular phones to ask that they relay a message to Mid-Island; calling the operator to ask that she connect him to Mid-Island; and getting the attention of other drivers on the road to have them attempt to contact Mid-Island. (Def.'s 56.1 ¶ 7; Downes Decl. ¶¶ 11-12; Downes Dep. at 63-69, 72-73.) These attempts failed because plaintiff's two-way radio did not work properly and because Mid-Island was unable to receive incoming calls due to a power outage that disrupted telephone service. (Def.'s 56.1 ¶ 7; Downes Decl. ¶ 10; Chieffo Dep. at 147.) Having failed to reach anyone, plaintiff continued to the New Jersey facility. (Def.'s 56.1 ¶ 8.)

Eventually, fellow driver Annette Maldonado was able to contact someone at Mid-Island who agreed to relay the message that plaintiff has missed the Huntington Post Office stop. (Downes Decl. ¶ 13; Downes Dep. at 76-78.) This was communicated to Chieffo and a different driver was sent from Mid-Island to Huntington Post Office to pick up the mail. (Def.'s 56.1 ¶¶ 9-10.) As a result, the mail from Huntington Post Office was brought to Mid-Island three hours late. (Id. ¶ 11.) According to defendant, that delay had the following consequences: (1) Express Mail from the Huntington Post Office did not make its scheduled time to the airport and thus was not timely processed; (2) there were delays in the processing of other services of mail as well; and (3) the Huntington Post Office was required to stay open later than its usual scheduled time in order to wait for the mail to be picked up. (Def.'s 56.1 ¶¶ 12-14.)

Chieffo testified that, during a telephone conversation at approximately 8:00 p.m. on July 22, 2003, Chieffo told Acting Plant Manager Henry Johnson what had occurred and Johnson directed him to terminate plaintiff. (Chieffo Dep. at 78-83; Supplemental Declaration of Dennis McGinn, Ex. S, at 2; Stark Decl., Ex. E.) At that point in time, no explanation had been sought from plaintiff regarding the incident, no incident report had been completed, and no investigation had been conducted. (Downes Dep. at 80; Chieffo Dep. at 72, 80-82, 89-90.) Johnson, however, denied any recollection of directing Chieffo to terminate plaintiff that night, or at any other time, and testified that he would never decide to terminate an employee or recommend such action until an investigation was conducted, including questioning the driver to determine the reason for the delay in the transport of the mail. (Johnson Dep. at 52-57, 73-76.)

According to plaintiff, upon his arrival to the New Jersey facility at approximately 9:00 p.m. on July 22, plaintiff continued his attempts to contact Chieffo. (Downes Decl. ¶ 14; Downes Dep. at 80.) Although these attempts failed initially, the New Jersey dispatcher was able to reach Chieffo by radio. (Downes Decl. ¶ 14.) Chieffo spoke to plaintiff for 15 seconds and plaintiff explained that he misread the route assignment and had unsuccessfully tried to contact Mid-Island by radio and telephone. (Downes Decl. ¶ 14; Downes Dep. at 80; Chieffo Dep. at 72.) Chieffo knew that telephones were not working properly that day and stated at his deposition that, if plaintiff had successfully reached him within one-half hour of leaving Huntington and identified the mistake, the mail would have still met its critical entry time and he would not have been terminated. (Chieffo Dep. at 147-48.) At Chieffo's request, plaintiff prepared a statement explaining the circumstances of his error. (Def.'s 56.1 ¶ 18.) Chieffo discussed ...

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