The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Pro se plaintiff Thomas J. Butler (hereinafter, "plaintiff" or "Butler") brings this action alleging unlawful retaliation based on past Equal Employment Opportunity ("EEO") and union activity, in violation of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), against his employer John E. Potter, Postmaster General, U.S. Postal Service (hereinafter, "defendant," "Potter" or "USPS"). Specifically, plaintiff asserts that he was verbally harassed and physically threatened by his supervisors, that the USPS served a proposed notice of termination upon him, and that the USPS failed to process his compensation claim, for the period of June 7, 2005 to November 10, 2005.
Defendant now moves for summary judgment. For the following reasons, defendant's motion for summary judgment is granted in its entirety. There is absolutely no evidence in this case from which a reasonable jury could find unlawful retaliation. First, there is no evidence of temporal proximity. In fact, well over two years elapsed between the final agency decision in March 2002 in Butler's last EEO proceeding and the first act of alleged retaliation in November 2004. Second, there is no other evidence that could even support an inference of retaliation. Plaintiff cites to no similarly situated individuals who suffered retaliation, or any disparate treatment aimed at plaintiff when compared to workers not engaged in protected activity. Plaintiff cites to no statements that suggest retaliation. In short, plaintiff points to no evidence to support his conclusory allegation. In fact, in his deposition, plaintiff acknowledged that, other than his belief of retaliation, he had no evidence to support his claim. Thus, after carefully considering the record in this case, the Court finds no evidence to support a prima facie case of retaliation. Moreover, even assuming arguendo that evidence supporting an inference of retaliation existed, plaintiff has failed to provide any evidence of a materially adverse action upon which a retaliation claim could be based. To the extent that the complaint could be construed as attempting to establish a retaliatory hostile work environment, the allegations of isolated and sporadic unprofessional conduct in the post office asserted by plaintiff are insufficiently pervasive or severe (even if true) to provide a basis for a reasonable factfinder to conclude that a hostile work environment existed. Accordingly, because of the absence of evidence to support plaintiff's conclusory allegation of retaliation, summary judgment in defendant's favor is warranted.
The facts described below are taken from the parties' depositions, affidavits, exhibits and the defendant's Local Rule 56.1 ("Def.'s 56.1") statement of facts.*fn1 Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to plaintiff, the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 54-55 (2d Cir. 2005). Specifically, below is a summary of the evidence that is based on plaintiff's version of the relevant facts and events.
1. Incidents of Verbal Abuse and Physical Threat
Plaintiff has been employed by the USPS from December 1980 to present. (Def.'s 56.1 ¶ 3.) Since 1984, plaintiff has worked as a window clerk at the Inwood Post Office, where his duties include serving customers, in person and by telephone, selling stamps and money orders, and handling packages for special delivery. (Id. ¶ 4.) The Inwood Post Office is a satellite of the Far Rockaway Post Office, and it has only two or three employees, all of which are window clerks. Neither the Postmaster, George Buonocore, nor any supervisors, work at the Inwood branch. (Id. ¶ 5.) Postmaster Buonocore periodically assigned plaintiff to work temporarily at the Far Rockaway Post Office in 2004 and 2005. (Id. ¶ 6.) According to plaintiff, he was verbally abused on November 12, 15, 16 and 18, 2004 while working in the Far Rockaway Post Office. (Id.) Plaintiff also alleges that, while working at the Inwood Branch, he was verbally abused on April 11, 2004 and June 3 and 7, 2005. (Id.)
Specifically, on November 12, 2004, Postmaster Buonocore told plaintiff that he looked terrible, as plaintiff walked by the Postmaster's office. (Id. ¶ 7.) On November 15, 2004, Scott Klein ("Klein"), one of plaintiff's supervisors, approached plaintiff while he was on the phone and said "Gee, Tom, don't you look comfortable." (Id. ¶ 8.) The next incident took place on November 16, 2008, when plaintiff approached Klein to get his paychecks from the period of July 16 and August 13, 2004. Plaintiff heard that Klein had posted plaintiff's paychecks on a bulletin board, but when plaintiff approached Klein that day, he allegedly got the "run-around." (Butler Dep. at 49-50.) After several weeks of inquiring, plaintiff received his paychecks. (Id. at 51.) Klein explained that the paychecks were misplaced when Klein reorganized his office and that this had caused the delay. (Def.'s 56.1 ¶ 10.)
That same day – November 16, 2004 – plaintiff alleges that Klein "[s]aid to me did you speak to the union today. I said no, I haven't. He said, well, basically we need to sit down on Thursday with a meeting. We'll go over what is expected of me in so far as my job as a window clerk in the Inwood post office. If I'm a good boy I'll be allowed to go back to my job." (Butler Dep. at 54.) Plaintiff alleges that this took place in front of a mail handler, Grace Cobb, and was "humiliating." (Id.) According to plaintiff, Klein then said that he could "do whatever [he] want[s] with [Butler] and work him wherever [he] want[s]," as long as Butler is not scheduled to work weekends and his workday schedule begins at 8:45 a.m. and ends on 5:45 p.m. (Butler Dep. at 55).
Later that day, Grace Cobb told Butler that "Mr. Klein said to her that [Butler's] a special case and in saying that he proceeded to rotate his hand and his index finger near his temple." (Butler Dep. at 55-56.) Klein later told Butler, "Tom, you know I'm only joking." (Butler Dep. at 56-57.) Klein later told Cobb, in Butler's presence, "I would say that you're a bad influence on Tom [Butler], but then again Tom is good at standing around and doing nothing." (Butler Dep. at 58.)
On November 18, 2004, Postmaster Buonocore and Klein "had a discussion about Butler as if he were not there." (Butler Dep. 58-60.) They said that "they were supposed to have some meeting . . . about what is expected of Tom, what he has to do regarding filling out proper 3971 forms, because the people in Inwood miss Tom. They're tired of coming in the post office and leaving right away. They'd much rather wait in line so that they can read the bulletin boards." (Butler Dep. at 59-60.)
"At an unspecified date in March 2005, Postmaster Buoncore [sic] and Klein harassed Butler by keeping him in the Far Rockaway Post Office for two hours before sending him back to the Inwood branch. There was no verbal abuse during this incident." (Def.'s 56.1 ¶ 13.) On April 11, 2005, Val Flame, one of Butler's supervisors, verbally abused Butler for refusing to go to retraining at the Averne Post Office, because Butler considered that post office to be unsafe, as there had been a shooting and a robbery there. Flame called Butler a "scaredy cat" and told him "you've got no balls." (Butler Dep. at 63-64.) Flame told Butler, who reported back to the Inwood branch, instead of to the Averne Post Office, to shut down his drawer. (Butler Dep. at 62.) Klein, who had been called to the Inwood branch, told Butler "I will put you back on the couch in the swing room and pay you if I have to because you like to sit around watching television back there." (Butler Dep. at 63.)
On June 3, 2005, Klein told Butler to shut his window early and then watched Butler count the money and told him that he "could only count it twice." (Butler Dep. at 65.) On June 7, 2005, Klein came to the Inwood branch to count receipts. Klein told Butler that "if things go slow at the window that [Butler] should begin [his] close-out at four p.m." (Butler Dep. at 71.) Klein then asked Butler for an advance of the money in Butler's drawer so that there would be less to count later. (Id.) Butler told Klein that he did not have enough money to justify an advance. (Butler Dep. at 72.) Klein responded, "oh, you'll have one even if it's only 15 dollars." (Butler Dep. at 74.) In an effort to comply with Klein's request, Butler closed his window early and began counting the money in his drawer. (Butler Dep. at 75.) Butler had counted the money twice and counted $4,000. He was not satisfied with the count, however, because he was having difficulty concentrating amidst Klein's "constant barrage of attacks." (Butler Dep. at 75.) Klein let Butler count the money a third time, but partway through the count a customer came to his window. Klein then tried to take the money to finish counting it out of Butler's presence. (Butler Dep. at 77.) Butler refused to give Klein the advance until after he finished the transaction. Butler told Klein that he needed to watch Klein count the money, to which Klein responded "absolutely not. You gave me a printed slip showing the four thousand dollar amount. That means you verified the amount and I'm going with the money." (Butler Dep. at 78.) Butler refused to allow Klein to take the money.
Klein then made a telephone call to Butler's union representative, Larry Cahill, and, speaking loudly twenty feet from Butler, Klein told Cahill, "Larry, you better get down here in a hurry. I have a problem with Mr. Butler. My neck is beet red and hairs are standing on my head . . . . If you don't get down here fast, I'm going to kick him out the door and it won't be verbal this time." (Butler Dep. at 79-80.) Klein then returned to Butler's window and "berated him" by asking "are you nervous, Tom" because Butler was having trouble "putting the figures into the computer." (Butler Dep. at 81-82.) When Larry Cahill arrived, Klein began to tell him what happened "in his opinion." (Butler Dep. at 83-84.) Klein was making "sarcastic remarks about [Butler] as he [went] on." (Butler Dep. at 84.) Butler responded, "I don't like the tone of your voice. You're talking down to me again and I don't like it." (Butler Dep. at 84). When Cahill asked "what is the problem," Klein said: "I have no problem with Tom's work as a window clerk. . . . he knows his job and the customers like [him]." (Butler Dep. at 85.) The incident ended when Butler's drawer was counted and was short by a dollar and change. (Butler Dep. at 86.)
Due to the stress of the events of June 7, 2005, Butler did not return to work until November 2005. On June 8, 2005, Butler called a supervisor and said that he would not be back to work "until further notice." (Def.'s 56.1 ¶ 23.) "No supervisor approved Butler's absence, and he did not submit a form 3971, a document by which leave is sought and approved." (Id. ¶ 24.) "By notice dated October 17, 2005 (exhibit D), the USPS notified Butler that his employment would be terminated on November 21, 2005 because: (1) he had been continuously absent without approved leave since June 8, 2005; (2) he had failed to obey orders to provide acceptable medical documentation justifying his absence, as directed in notifications mailed to his residence on June 13, and July 1, 2005; and to report for a pre-disciplinary interview, as directed in a notification mailed to his residence on July 25, 2005." (Id. ¶ 25.) The notice was expunged as a result of a settlement agreement dated February 26, 2006. (Id. ¶ 26; Defendant's Motion to Dismiss, Ex. E.) "Butler never lost any time or pay, nor were there any adverse job consequences to him as a result of receiving the notice of termination." (Def.'s 56.1 ¶ 26; Butler Dep. at 133-34.)
In December 2007, Butler's union gave Klein a claim for workers' compensation, seeking benefits for the period June to November 2005. (Butler Dep. 105.) "Neither the USPS Flushing office, where it was directed for transmittal to the Department of Labor, nor the Department of Labor have received the claim (Butler Dep. 105-107). Butler has 'put the matter in the hands of the union' (Butler Dep. 107). Butler does not know where his claim went, nor does he know what efforts, if any, are being made to resolve locating his claim (Butler Dep. 108-110)." (Id. ¶ 27.)
3. Complaint of Retaliation
Butler contacted an EEO counselor on July 20, 2005, claiming that Postmaster Buonocore and Klein had retaliated against him in the form of verbal abuse beginning in late 2004 and the physical threat by Klein of June 7, 2005 because of his prior EEO and union activity. (Def.'s 56.1 ¶ 28.) On September 8, 2005, Butler filed an EEO complaint of discrimination, alleging retaliation because he was "a previous EEO witness and complainant [and because of his] status as a union official." (Defendant's Motion for Summary Judgment, Ex. G, at 1.) The retaliation consisted of Klein's physical threat on June 7, 2005 and verbal harassment by Klein and Postmaster Buonocore "as far back as Oct.-Nov. 2004." (Def.'s 56.1 ¶ 29.)
Prior to Butler's contact with an EEO counselor in July of 2005, Butler last contacted an EEO counselor on January 28, 2000 and last filed an EEO complaint on April 10, 2000. (Id. ¶ 30.) "In that proceeding, he claimed that due to retaliation because of past EEO activity he was charged as absent without leave in December 1999, was threatened with the elimination of his job and was issued a letter of warning in April 2000. Butler's claims were dismissed by a final agency decision dated March 8, 2002 (exhibit J). Butler did not take any subsequent action on his EEO complaint." (Id. ¶ 31.) Butler also attributed the alleged retaliation to his activity as an EEO witness. At his deposition, Butler "stated that he had last been a witness in 1982 or 1983, about 23 years before he filed the instant EEO complaint." (Id. ¶ 31 (citing Butler Dep. at 111-12).) Plaintiff does not know whether Klein or Postmaster Buonocore were aware of that activity at the time of the incidents described above. (Butler Dep. at 112.) Neither Klein, nor Postmaster Buonocore ever said anything to Butler that indicated to Butler that they were retaliating against him for past EEO activity. (Def.'s 56.1 ¶ 32.) At Butler's deposition, the following exchange occurred:
Q: I want to know what makes you believe that Mr. Buonocore retaliated against you because of any EEO activity?
A: Because I had been a previous complainant in EEO cases so he is fully aware of that. Apparently that doesn't sit too well when you file an EEO case. Consequently I become an enemy.
Q: Anything more than what you told me leads you to believe he retaliated against you because of EEO activity?
A: Just the fact that as a previous complainant he doesn't exactly appreciate me too much.
Q: Because you're a previous ...