The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
This case was referred to the undersigned by Honorable Richard J. Arcara on September 7, 2004, for pretrial matters, including report and recommendation on dispositive motions. The matter is presently before the undersigned on Defendant's motion seeking partial summary judgment or dismissal of the complaint (Doc. No. 17), filed September 15, 2005, and Plaintiff's cross-motion for discovery pursuant to Rule 56(f) (Doc. No. 23), filed October 14, 2005.*fn1
Plaintiff Mennie R. Hudson ("Plaintiff"), an African-American female, commenced this action on April 12, 2004, alleging that she had been subjected to race-based employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"). On August 31, 2004, Defendant filed a motion to dismiss the Complaint (Doc. No. 2) ("motion to dismiss"), with supporting papers and exhibits (Doc. Nos. 4 and 5). On July 26, 2005, Plaintiff filed an Amended Complaint (Doc. No. 14) ("Amended Complaint"), asserting three cause of action including (1) hostile work environment, Amended Complaint ¶¶ 66-74 ("First Cause of Action"); (2) disparate treatment, Amended Complaint ¶¶ 75-85 ("Second Cause of Action"); and (3) retaliation, Amended Complaint ¶¶ 86-93 ("Third Cause of Action"). To date, Defendant John E. Potter, Postmaster General of the United States Postal Service ("Defendant"), has not filed any answer.
On September 15, 2005, Defendant filed the instant motion seeking partial summary judgment or dismissal of the Amended Complaint in its entirety (Doc. No. 17) ("Defendant's motion"). Defendant's motion is supported by a Memorandum of Law (Doc. No. 18) ("Defendant's Memorandum"). Defendant's motion is also supported by several documents which incorporate by reference several of the papers and exhibits filed in support of the motion to dismiss. Specifically, a statement of Facts (Supplemental) Not in Dispute (Doc. No. 19) ("Defendant's Facts Statement"), incorporates by reference the Statement of Material Facts not in Dispute (Doc. No. 4), with the exhibits contained in the Appendix to Statement of Material Facts (Doc. No. 5), containing Defendant's exhibits A through K ("Defendant's Exh(s). __"), filed in support of the motion to dismiss. Defendant also filed a Supplemental Appendix to Statement of Material Facts (Doc. No. 20), containing Defendant's exhibits L through S ("Defendant's Supplemental Exh(s). __").
On October 14, 2005, Plaintiff filed a cross-motion seeking discovery pursuant to Rule 54(f) (Doc. No. 23) ("Plaintiff's Motion"), a Memorandum of Law in Opposition to Defendant's Motion and in Support of Plaintiff's Motion (Doc. No. 24) ("Plaintiff's Memorandum"), the Affidavit of Mennie R. Hudson (Doc. No. 25) ("Plaintiff's Affidavit"), Plaintiff's Supplemental Counterstatement of Contested Facts in Opposition to Defendant's Motion (Doc. No. 26) ("Plaintiff's Supplemental Fact Statement"), and the Affidavit of Josephine A. Greco, Esq. (Doc. No. 27) ("Greco Affidavit"), with attached exhibits ("Plaintiff's Exh(s). __"). Plaintiff's papers incorporate by reference papers filed in opposition to the earlier motion to dismiss, including the Affidavit of Josephine A. Greco, Esq. (Doc. No. 9) ("First Greco Affidavit") with attached exhibits ("Plaintiff's First Set of Exh(s). __"), the Affidavit of Mennie R. Hudson (Doc. No. 10) ("Plaintiff's First Affidavit"), and a Memorandum of Law (Doc. No. 11) ("Plaintiff's Memorandum in Opposition to Motion to Dismiss").
On October 24, 2005, Defendant filed a Reply Memorandum of Law in further support of Defendant's motion (Doc. No. 29) ("Defendant's Reply"), and a Memorandum of Law in Opposition to Plaintiff's Motion (Doc. No. 30) ("Defendant's Response"). On November 4, 2005, Plaintiff filed the Reply Affidavit of Mennie R. Hudson in further support of Plaintiff's motion (Doc. No. 31) ("Plaintiff's Reply Affidavit"). Oral argument was deemed unnecessary.
Based on the following, Defendant's motion for partial summary judgment or dismissal of the Amended Complaint should be GRANTED in part and DENIED in part without prejudice; Plaintiff's cross-motion seeking discovery pursuant to Rule 54(d) is DISMISSED as moot.
Plaintiff Mennie R. Hudson ("Plaintiff" or "Hudson"), an African-American female, commenced employment as a full-time letter carrier with the United States Postal Service ("the USPS" or "the Postal Service"), in May 1990, assigned to the Central Park Station in Buffalo, New York. Hudson maintains that throughout her tenure with the Postal Service, she was the subject of race-based employment discrimination, and was retaliated against for complaining about such discrimination.
As of May 1995,*fn3 Hudson's Station Manager was Katherine Dunshie ("Dunshie"). Sometime during 1995, one James Lentz ("Lentz"), was transferred into Central Park Station as Acting Station Manager. On May 18, 1995, Hudson was working at the Central Park Station in a "limited duty" capacity because of an ankle injury, when Dunshie advised Hudson that Hudson would no longer be permitted to work in such capacity, and reassigned Hudson to another station.*fn4
On July 5, 1995, Hudson filed her first of four administrative Equal Employment Opportunity ("EEO") complaints in Equal Employment Opportunity Commission ("EEOC") case No. 4B-140-1085-95 ("First EEO Complaint"), alleging employment discrimination based on race and color premised upon Dunshie's refusal to permit Hudson to continue working in a limited duty capacity, and reassigning Hudson to a different work station. Hudson sought as relief Dunshie's transfer to another station. The Final Agency Decision ("FAD") denying the First EEO Complaint was issued on December 27, 1995, thereby granting Hudson the right to file a civil action regarding the administratively grieved claims, which Hudson failed to file.
In June 1996, Hudson was suspended for 14 days for leaving her mail route to use the bathroom in Hudson's home, which is located within Hudson's assigned mail route and had been approved by an unspecified supervisor for Hudson's breaks; Hudson maintains white employees were allowed to take breaks their homes provided the homes were located within their assigned routes. In July 1996, Dunshie and Lentz disciplined Hudson for taking her lunch break at the end of Hudson's shift. Hudson maintains that during this time, various Postal Service employees, agents and servants followed Hudson on her mail route and scrutinized her job performance. Hudson first sought medical treatment for emotional distress allegedly suffered because of the employment discrimination, retaliation and harassment Hudson encountered performing her letter carrier job.
On September 6, 1996, Hudson filed her second EEO Complaint in EEOC case No. 4B-140-1110-96 ("Second EEO Complaint"), alleging employment discrimination based on race and color. In particular, Hudson challenged as racially discriminatory the 14-day suspension received in June 1996. The FAD denying Hudson's Second EEO Complaint was issued on February 14, 2000, thereby granting Hudson the right to file a civil action regarding the administratively grieved claims, which Hudson also failed to commence.
In September 1997, Dunshie and Lentz were transferred out of the Central Park Station. Near the end of 2000 or beginning of 2001, however, Lentz was transferred back to the Central Park Station as Acting Station Manager, at which time Hudson maintains Lentz resumed the discrimination, harassment and retaliation against Hudson. In particular, on February 1, 2001, Hudson's immediate supervisor, Marek Usewicz ("Usewicz"), followed Hudson on her mail route for the entire day and, later that same day, Usewicz was joined by Lentz. On April 2, 2001, Hudson formally complained of the alleged discriminatory treatment by letter to then Postmaster General William Henderson, complaining that she had initially been harassed by Dunshie, and then by Lentz, based on Hudson's race. According to Hudson, on January 31, 2001 and February 21, 2001, days that Hudson was not assigned to work, Hudson's supervisors tried to coerce the substitute letter carriers covering Hudson's mail route to complete the route in less than the allotted eight hours. Hudson maintains she received a response to the letter indicating her complaints, raised in her April 2, 2001 letter, would be investigated, but Hudson was never contacted by the Postal Service regarding the complaints and no action was ever taken to rectify the matter. Amended Complaint ¶ 30.
Hudson alleges that beginning in May 2001, Dunshie, Lentz and other Central Park Station supervisors began discriminating against African-American employees as to the manner in which African-American letter carriers were permitted to carry their mail for delivery. Mail is prepared for delivery by sorting it into individual sections or "cuts." Upon arriving at a "park point" along the letter carrier's mail delivery route, the letter carrier parks the mail truck and selects the mail "cut" containing the mail to be delivered along that portion of the route. Each cut of mail is to be delivered in its entirety before the carrier returns to the mail truck, drives the truck to the next park point, parks the truck and selects the next mail cut for that portion of the route.
According to Hudson, she and other African-American letter carriers were only permitted to break up a cut if the cut exceeded a certain weight limitation - 35 pounds -whereas white letter carriers were not subjected to similar restrictions. In May 2001, Lentz altered Hudson's mail route by eliminating three park points, resulting in heavier mail cuts. When Hudson complained to Acting Supervisor Jason Keith ("Keith") that the elimination of the park points resulted in mail cuts that were too heavy for Hudson, no remedial action was taken. On May 29, 2001, Hudson injured her neck and right shoulder carrying heavy mail cuts. On June 22, 2001, the heavy mail cuts caused Hudson to injure her back, although Hudson did not file an injury report regarding her back injury with the Postal Service because the injury was not as severe as the earlier neck and shoulder injuries. On June 26, 2001, Hudson filed a union grievance regarding the park point assignments and mail cut requirements.
On July 3, 2001, Hudson filed her third EEO Complaint in EEOC case No. 4B-140-0050-01 ("Third EEO Complaint"), alleging employment discrimination based on race and color, on the basis that in April 2001, Lentz unnecessarily inspected Hudson's letter carrier route, and that Hudson's route was overburdened by the elimination of park points and resulting heavier mail cuts, which caused Hudson to sustain injuries on May 29 and June 22, 2001. On July 29, 2001, Hudson attended pre-complaint counseling with an EEO Dispute Resolution Specialist, regarding the claims raised in the Third EEO Complaint. On August 1, 2001, Hudson received a disciplinary Letter of Warning, dated July 19, 2001 ("Letter of Warning"), charging Hudson with failing to report the June 22, 2001 back injury as required. On August 17, 2001, Hudson contacted the Postal Service's EEO to amend the Third EEO Complaint to include receipt of the Letter of Warning.
Hudson alleges that while the Third EEO Complaint was pending, Hudson continued to be subjected to discrimination, harassment and retaliation including discriminatory enforcement of USPS polices, discipline administration, and greater scrutiny than white employees. In particular, Hudson maintains that her supervisors would stand within Hudson's view and stare while Hudson sorted her mail. On April 23, 2003, Hudson injured her ankle while carrying a parcel of mail across a street. Although the injury was not serious and did not cause Hudson to miss any time from work, Hudson felt compelled to report the injury to her supervisors because she had been written up for failing to report the June 22, 2001 injury.
On June 3, 2003, Hudson, frustrated with the conduct of her supervisors, complaint to Central Park Station Manager Bernard Czechowski ("Czechowski"), that the alleged conduct of her supervisors was both embarrassing and intimidating. Later that same day, Hudson received a second disciplinary Letter of Warning for "failing to work safely" in connection with the April 23, 2003 incident in which Hudson injured her ankle. Plaintiff's First Affidavit ¶¶ 27-28.
The FAD denying Hudson's Third EEO Complaint was issued on January 15, 2004, thereby granting Hudson the right to file a civil action regarding the administratively grieved claims. Hudson commenced the instant action on April 12, 2004.
In her Complaint, Hudson cites other instances in which she maintains she was subjected to racially discriminatory, harassing and retaliatory conduct based on criticism for conduct for which white Postal Service employees were not similarly criticized. Specifically, in February 2004, Hudson was criticized for sorting delivery point sequencing ("DPS") mail*fn5 while in the Central Park Station. In March 2004, Hudson was criticized by her supervisor for incurring overtime while waiting in line to punch out. On March 8, 2004, Hudson's supervisor screamed at Hudson and threatened to write up Hudson for underestimating the amount of overtime needed to complete Hudson's mail route that day.
On June 10, 2004, Hudson returned to work after a three-day absence. Upon reporting to the Central Park Station, Hudson was approached by Kenneth Brown ("Brown"), a supervisor, who accused Hudson of delaying mail delivery. Hudson explains that letter carriers are required to hold back mail for recipients who had moved and left no forwarding address, and that because a large number of students live within Hudson's mail delivery route, Hudson tends to have a greater than average amount of undeliverable mail. After 10 days, the letter carriers are required to complete "Moved Left No Address" forms for the undeliverable mail. Hudson told Brown that she had requested permission to complete the "Moved Left No Address Forms" for the undelivered mail, but that Brown and ...