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Avillan v. Potter

November 1, 2006


The opinion of the court was delivered by: P. Kevin Castel, U.S.D.J.


Plaintiff Anibal Avillan, proceeding pro se, brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. ("ADEA"), against John E. Potter, the Postmaster General of the United States Postal Service.*fn1

Plaintiff alleges that various Postal Service employees discriminated against him on the basis of his race, national origin, and age, and also retaliated against him for engaging in protected activity.

Defendant has moved for summary judgment on various grounds, alleging that some of plaintiff's claims are barred by res judicata and his election of remedies, and that plaintiff's remaining claims fail to establish a prima facie case of discrimination and/or retaliation. Defendant further contends that even if plaintiff has established a prima facie case, defendant has offered legitimate, nondiscriminatory, and nonretaliatory reasons for the purported adverse employment actions and plaintiff, in response to the motion, has failed to come forward with evidence that the reasons are pretextual.

Plaintiff was afforded an opportunity to conduct discovery, and the discovery period is now closed. Defendant has served the requisite Notice to Pro Se Litigant Opposing Motion for Summary Judgment. In addressing defendant's motion, I have considered only plaintiff's version of the facts and such other facts as are not disputed by the plaintiff.*fn2 Where multiple inferences may be drawn from the facts, I have considered only the inference most favorable to plaintiff, the non-movant.

For the reasons set forth below, defendant's motion is granted.


A. The Postal Service Hiring Process

Plaintiff-who identifies himself as a Hispanic man born in Puerto Rico on January 24, 1944 (Compl. ¶ 7; Avillan Dep. 11)-has had a long, tumultuous, and litigious history with his employer, the United States Postal Service ("Postal Service"). Although he has been on the Postal Service's payroll as a custodial laborer since June 1999, plaintiff spent many years and much effort seeking his present position. Plaintiff first took the Postal Service "Cleaner/Custodian" entrance exam in September 1994, and was repeatedly contacted by the Postal Service personnel department for drug-tests and interviews in the ensuing years. (Avillan Dep. 25) Throughout that time, personnel department employees, most frequently a woman named Christine Patterson, repeatedly informed plaintiff that he had not scored well enough on his entrance exam to qualify for employment, and plaintiff was eventually told that his eligibility for employment had expired. (Avillan Dep. 77; Pl. Mem. Opp. Ex. F)

Frustrated by his failure to obtain employment, in August 1998 plaintiff filed an EEO complaint ("1998 EEO Complaint") with the Postal Service alleging unlawful age discrimination in the Postal Service's hiring process. (Friedman Decl. Ex. A; Pl. Mem. Opp. Ex. H) While not entirely clear from the record, it appears that plaintiff believed that the personnel department reduced his score on the basis of a discriminatory age factor. (Hallums Decl. Ex. CC at 4) In October 1998, the Postal Service dismissed the complaint as untimely filed. (Friedman Decl. Ex. B) In November 1998 plaintiff appealed the Postal Service's ruling to the United States Equal Employment Opportunity Commission ("EEOC"), which affirmed the agency's dismissal in December 1999. (Friedman Decl. Ex. C)

While awaiting a decision on his first EEOC appeal, plaintiff sought equal employment opportunity ("EEO") counseling with the Postal Service for a second time in April 1999 on the grounds that the continued failure to hire him was retaliatory for his first EEO complaint. (Pl. Mem. Opp. Ex. K) Shortly thereafter, in June 1999, plaintiff was hired by the Postal Service into the position that he presently holds. (Avillan Dep. 26) Notwithstanding this development, plaintiff proceeded to file his second formal EEO complaint ("1999 EEO Complaint") with the Postal Service in July 1999, claiming discrimination and retaliation in the Postal Service's hiring process, and seeking back pay to the time of his first interview in 1995. (Pl. Mem. Opp. Ex. L) In November 1999, the Postal Service dismissed the 1999 EEO Complaint as untimely filed. (Friedman Decl. Ex. E) This result was affirmed by the EEOC on appeal (on a date that is unavailable in the record), and plaintiff's request for reconsideration was denied by the EEOC in October 2000. (Friedman Decl. Ex. F)

In January 2001, plaintiff brought his claims from the 1999 EEO Complaint to federal court and commenced an action against the Postmaster General in this district. Plaintiff alleged discrimination and retaliation in the Postal Service's hiring process, as well as discriminatory and retaliatory treatment in the terms and conditions of his employment. (Hallums Decl. Ex. CC) On February 21, 2002, Judge Stein granted the defendant's motion for summary judgment on the grounds that plaintiff's 1999 EEO Complaint was untimely filed with the Postal Service's EEO Office. See Avillan v. Potter, No. 01-Civ-1648 (SHS), 2002 WL 252479 (S.D.N.Y. Feb. 21, 2002) ("Avillan I"). Plaintiff never appealed that judgment.

B. Plaintiff's Suspension

While plaintiff was marshaling his "failure to hire" claims through agency adjudication and federal court, he began encountering problems with his supervisors. Plaintiff identifies James Hardy as his principle antagonist. Hardy originally worked with plaintiff as his direct supervisor from June 1999 to September 1999. (Avillan Dep. 36). After September 1999, Richard Rivera directly supervised plaintiff, and was succeeded by Julio Amaro in 2002. (Avillan Dep. 42, 49) However, it appears that plaintiff's direct supervisors were at all relevant times subject to Hardy's supervision, and plaintiff alleges that most of the adverse employment actions taken against him were either perpetrated by Hardy, or done with Hardy's encouragement.

Plaintiff's difficulties with Hardy began on May 10, 2000, when plaintiff lost two Postal Service keys. (Avillan Dep. 100-01) Hardy informed plaintiff that the loss of the keys "meant termination and that [plaintiff] ha[d] to pay for the lock[s]." (Id.) A second series of altercations began to unfold the next day on May 11, 2000, when Hardy reprimanded plaintiff for failing to properly clean some of the garbage cans for which plaintiff was responsible. (Id. at 202) Other custodial laborers were present at the time, and Hardy began to review proper maintenance procedures for the area in question. (Id.) Plaintiff-apparently under the impression that the area was no longer on his custodial route-left the area, which Hardy interpreted as plaintiff's abandonment of an assignment. (Id. at 202-03) Hardy initiated disciplinary actions against plaintiff, and at a "pre-disciplinary interview" on May 16, 2000, plaintiff claims that Hardy misinterpreted plaintiff's demeanor as disruptive and insubordinate, which prompted Hardy to place plaintiff on "emergency off-duty status" without pay. (Id. at 203-04) Plaintiff was threatened with forcible removal from the building, and a picture of plaintiff was posted in the employee's entrance together with a sign that read "DO NOT LET IN BUILDING." (Pl. Mem. Opp. Ex. N)

On May 21, 2000, the Postal Service issued a "Notice of 14 Day Suspension" to plaintiff which was based on charges arising out of the three events that took place earlier in that month. (Friedman Decl. Ex. G). Specifically, the charges were (1) "Creating an Unsafe Condition" by losing the keys; (2) "[Failure to] Give a Full Day Labor for a Full Day Pay" for walking away from his assignment; and (3) "Disrupting the Postal Service Day [to] Day Operation" for his conduct at the May 16 pre-disciplinary interview. (Id.) While plaintiff never actually served the proposed suspension beyond the one day's placement on emergency off-duty status, plaintiff requested EEO counseling in June 26, 2000. (Friedman Decl. Ex. I) His third formal EEO complaint followed on November 21, 2000 ("2000 EEO Complaint"). (Friedman Decl. Ex. J). While not perfectly clear from the face of the 2000 EEO Complaint, plaintiff now alleges that the behavior of his supervisors was retaliatory and discriminatory. As evidence, plaintiff states that his African-American co-workers have lost Postal Service keys without any disciplinary repercussions. (Avillan Dep. 103-05) Plaintiff also alleges that Hardy and other supervisors mischaracterized both the abandonment charge and the disruption charge in order to retaliate against plaintiff for prior EEO activity. (Avillan Dep. 106)

C. Plaintiff's Termination

As plaintiff was pursuing his administrative remedies with the EEO office, his relationship with his supervisors deteriorated further. On October 2, 2000, plaintiff received a Notice of Proposed Removal from his supervisors, which was based on three new charges that: (1) plaintiff had been "Absent Without Official Leave (AWOL)" on September 1, 2000; (2) plaintiff failed to follow instructions in seeking emergency leave on September 1, 2000; and (3) plaintiff was disrespectful to a supervisor at a pre-disciplinary interview on September 11, 2000. (Friedman Decl. Ex. K) The Notice also stated that plaintiff's record and the charges raised in the Notice of 14 Day Suspension were considered in the proposed removal. (Id.) On November 29, 2000, the Postal Service maintenance manager, Wayne Griffith, issued a Letter of Decision in which he found that the charges were substantiated by the evidence and justified removal. (Friedman Decl. Ex. L) Plaintiff's removal was made effective on January 12, 2001. (Friedman Decl. Ex. M)

Plaintiff appealed his removal to the Merit Systems Protection Board ("MSPB") in January 2001, alleging discrimination and retaliation. (Friedman Decl. Ex. N) In that appeal, plaintiff claimed that the Notice of Proposed Removal contained one "false allegation[]," as plaintiff denies that a September 11 pre-disciplinary meeting ever took place. (Friedman Decl. Ex. N; Avillan Dep. 180) He also claims that he took the unauthorized emergency leave on September 1, 2000 because he was repeatedly denied his annual leave, and that in any event, he complied with the procedures for taking emergency leave as he understood them. (Avillan Dep. 178-79)

Plaintiff's MSPB appeal never reached a decision on the merits because on March 21, 2001, while the matter was pending, the Postal Service rescinded both the Notice of Proposed Removal and the Letter of Decision. (Friedman Decl. Ex. O) The MSPB field office dismissed the appeal as moot, but advised plaintiff of his right to appeal the disposition to the MSPB review board and the Court of Appeals for the Federal Circuit. (Friedman Decl. Ex. P) On March 26, 2001, plaintiff resumed his position with the Postal Service and received his back pay between six and eight months later. (Avillan Dep. 189) Plaintiff never further appealed the MSPB decision.

D. Harassment Following Reinstatement

In April 2002, plaintiff initiated his fourth EEO counseling session, again alleging that the Postal Service unlawfully discriminated and retaliated against him in the terms and conditions of his employment. (Pl. Mem. Opp. Ex. T) In the formal complaint that followed in August 2002 ("2002 EEO Complaint"), plaintiff raised new allegations of harassment by his supervisors, including (1) the falsification of documents in his personnel file and the failure to purge his record of prior employment actions; (2) assignment of additional routes, one of which required plaintiff to "dust down" a potentially hazardous area during an anthrax scare in December 2002; and (3) denial of a uniform allowance for the years 2001 and 2002. (Pl. Mem. Opp. Ex. V) The Postal Service consolidated the 2002 EEO Complaint with the pending 2000 EEO Complaint, and denied all claims of discrimination and retaliation on the merits on July 22, 2004. (Friedman Decl. Ex. U)

E. The Complaint

On November 16, 2004, plaintiff filed the instant complaint. Plaintiff alleges discrimination and retaliation in the Postal Service's hiring process. (Compl. ¶ 8) He further alleges that after obtaining employment he was discriminated against and retaliated against for his EEO activity. Specifically, plaintiff alleges violations in: (1) the events surrounding his suspension and placement on off-duty status in May 2000 (Compl. Attach. A); (2) the events surrounding his termination from September 2000 to January 2001 (Compl. ¶ 8, Attach. A); (3) the denial of his requests for annual leave (Compl. ¶ 8); (4) the denial of an attendance award in 2000 (Compl. ¶ 8); (5) the denial of a uniform allowance in 2001 and 2002 (Compl. ¶ 8); (6) instructions from his supervisors to his co-workers to dissociate from him (Compl. ¶ 8); (7) his receipt of additional and hazardous work assignments (Compl. Attachs. A, A-1); (8) the existence of false documents in his personnel file (Compl. Attach. A-1); and, (9) the Postal Service's failure to pay him for all of the hours he has worked. (Compl. Attach A)*fn3

While the complaint alleges discrimination and retaliation, the pleading does not furnish any basis for assessing which acts were motivated by retaliation, which were motivated by racial or national origin discrimination, and which were motivated by age discrimination.*fn4 In the form complaint provided to plaintiff by this Court's Pro Se Office, plaintiff checked the box on the front page of the complaint indicating a desire to bring his suit under Title VII. He did not check the box for ADEA claims, despite the instruction on the form to "check only those that apply." Plaintiff also did not indicate his age or date of birth in the required field at paragraph 7 (although he did do so in his first federal complaint in Avillan I). Plaintiff did, however, answer one question, number 11, that pertained only to age discrimination claims. Subsequent to the filing of the complaint, plaintiff has indicated his belief that he alleged age discrimination in this action. (Avillan Dep. 82-83) I will therefore construe plaintiff's complaint as alleging discrimination on the basis of age, race, and national origin, and retaliation for engaging in protected activities.


A. Summary Judgment Standard

Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). It is the initial burden of a movant on a summary judgment motion to come forward with evidence on each material element of his claim or defense, demonstrating that he or she is entitled to relief. A fact is material if it "might affect the outcome of the suit under the governing law . . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The evidence on each material element must be sufficient to entitle the movant to relief in its favor as a matter of law. Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).

When the moving party has met this initial burden and has asserted facts to demonstrate that the non-moving party's claim cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on "mere allegations or denials" of the facts asserted by the movant. Fed. R. Civ. P. 56(e). In raising a triable issue of fact, the non-movant carries only "a limited burden of production," but nevertheless "must 'demonstrate more than some metaphysical doubt as to the material facts,' and come forward with 'specific facts showing that there is a genuine issue for trial.'" Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004) (quoting Aslandis v. United States Lines, Inc., 7 F3d 1067, 1072 (2d Cir. 1993)).

An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. The Court must "view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party." Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (quotations and citations omitted); accord Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). In reviewing a motion for summary judgment, the court must scrutinize the record, and grant or deny summary judgment as the record warrants. Fed. R. Civ. P. 56(c). In the absence of any disputed material fact, summary judgment is appropriate. Id. Mere "conclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment." Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587)); see also Anderson, 477 U.S. at 249-50 (noting that summary judgment should be granted if the evidence is "merely colorable" or "not significantly probative").

Although discrimination and retaliation claims usually involve issues of intent, which are often ill-suited to resolution at the summary judgment stage, the Second Circuit has gone "out of [its] way to remind district courts that the 'impression that summary judgment is unavailable to defendants in discrimination cases is unsupportable.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting McLee v. Chrysler Corp., 38 F.3d 67, 68 (2d Cir. 1994)), cert. denied, 540 U.S. 811 (2003). See also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) ("[T]rial courts should not treat discrimination differently from other ultimate questions of fact." (internal quotations omitted)).

B. Res Judicata

Defendant argues that plaintiff's claims of discrimination and retaliation in the Postal Service's hiring process are barred by res judicata. In Avillan I, plaintiff commenced an action in federal court after the EEOC dismissed his 1999 EEO Complaint. In his complaint in Avillan I, plaintiff raised all of the same "failure to hire" claims that he alleges in this action, and thus, as elaborated more fully below, plaintiff's claims of discrimination and retaliation in the Postal Service's hiring process are barred by res judicata.

The doctrine of res judicata, or claim preclusion, instructs that "[a] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Maharaj v. Bankamerica Corp., 128 F.3d 94, 97 (2d Cir. 1997) (quoting Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 294, 398 (1981)). This rule gives rise to four prerequisites that must be satisfied in order to apply the doctrine: (1) there must be a final judgment on the merits; (2) the judgment must have been rendered by a court of competent jurisdiction; (3) the cases must involve the same parties or their privies; and (4) the cases must involve the same cause of action. See Corbett v. MacDonald Moving Servs., Inc., 124 F.3d 82, 87-88 (2d Cir. 1997) (citing In re Teltronic Servs., Inc., 762 F.2d 185, 190 (2d Cir. 1985)). In determining whether a second suit involves the same cause of action as the first, "the fact that the first and second suits involved the same parties, similar legal issues, similar facts, or essentially the same type of wrongful conduct is not dispositive. Rather, the first judgment will preclude a second suit only when it involves the same 'transaction' or connected series of transactions as the earlier suit . . . ." Legnani v. ...

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