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Robert L. Rebele v. John E. Potter

May 24, 2010


The opinion of the court was delivered by: Seybert, District Judge


Pending before the Court is a motion for summary judgment pursuant to Fed. R. Civ. P. 56 filed by John E. Potter, Post Master General of the United States Postal Service ("Defendant" or "USPS") seeking dismissal of every claim contained within the Complaint filed by Robert Rebele ("Rebele" or "Plaintiff"). Plaintiff brought this action against USPS, his employer, alleging (1) retaliation for his participation in Equal Employment Opportunity ("EEO") activities in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and (2) constructive discharge from his position in the Time and Attendance Collection System ("TACS") Department at USPS. For the reasons set forth below, Defendant's motion is GRANTED.


Plaintiff is currently employed by the USPS in its Vehicle Maintenance Department. Plaintiff's Local Rule 56.1 Statement ("Pl.'s Stmt.") ¶ 2. During the time period encompassed by the Complaint, Plaintiff served as a clerk for TACS, another department of the USPS, where, beginning in October 2001, he worked under the supervision of one Nancy Quiney ("Quiney"). Answer ¶ 8. Here, Plaintiff worked for almost a decade, receiving a number of awards for his competent job performance. Pl.'s Stmt, ¶ 25.

In September 2006, Plaintiff interviewed for a "specialist" position within the TACS Department for the Long Island District. Id. To his dismay, however, another TACS employee, Joanne Schnapp ("Joanne"), was awarded the position of specialist over Plaintiff. Id. ¶ 26. As it happens, Joanne is the daughter of Plaintiff's then supervisor, Quiney. Id. Vexed by the way the position had been filled, Plaintiff registered a complaint with Quiney about the situation, offering his view that perhaps there were other TACS employees with deeper experience and better qualifications than Joanne. Id. ¶ 29. About one month after this conversation between the two, Plaintiff observed a notice from Quiney which purported to "require" that Plaintiff work on the Thanksgiving holiday (something that had never before been required of Plaintiff). Id. ¶ 30. On November 24, 2006, Joanne sent an e-mail to Plaintiff informing him that his access would be cut off to the "Tour Office", to which Plaintiff required access in order to fulfil his employment duties. Id. ¶ 31. Although Plaintiff seldom took advantage of his sick leave allowances and always hewed closely to his work schedule, Joanne sent another e-mail to Plaintiff promising "corrective action" and admonishing him that he should be more regular in his attendance. Id. ¶ 32. Finally, on January 27, 2007, Joanne told Plaintiff that she was planning on changing his start time. Id. ¶ 34.

In response to these developments, on February 4, 2007, Plaintiff first scheduled a meeting with an EEO counselor, which was docketed as Agency No. 4A-117-0043-07. Decl. of Anthony Merlino ("Merlino Decl.") ¶ 5. In this initial contact with the EEO, Plaintiff's sole ground of complaint was that Quiney discriminated against him--on the basis of a purported disability, not of his gender. Id. ¶ 6. Although the USPS informed Plaintiff of his right to file a formal complaint, Plaintiff declined. Id.

On October 6, 2007, Plaintiff once again set up a meeting with an EEO counselor, this time docketed as Agency No. 4A-117-0007-08. Merlino Decl. ¶ 8. In this meeting, Plaintiff complained that he was subjected to retaliation in that: (1) his request for leave was denied on September 4, 2007; (2) his access to the TACS program on his computer was impeded and his access to the eRMS application was taken away altogether; and (3) he had not been paid for pay period 19, week 1. Merlino Decl., Ex. C. After the USPS issued a Notice of Right to File a Formal EEO Complaint, Plaintiff filed a formal complaint on November 28, 2007, which was docketed as Agency No. 4A-117-0007-08, and it was accepted for investigation into the grounds of retaliation enumerated supra. Merlino Decl. ¶11. On May 16, 2008, the USPS issued a Final Agency Decision, finding no retaliation. Merlino Decl. ¶ 13. The Office of Federal Operations affirmed that decision in full on March 13, 2009. Id.¶ 14.

For the third and final time, on October 3, 2008, Plaintiff arranged for a meeting with another EEO counselor, docketed as Agency No. 4A-117-0002-09. Merlino Decl. ¶ 15. This time, Plaintiff alleged that he was retaliated against when a new TACS employee called Biji Jacob ("Biji") came along with Joanne to the "datasite" where Plaintiff worked to "cross train." Merlino Decl., Ex. J. Biji "gave [Plaintiff] a service talk on Aviation Mail Security and asked [him] to sign it" which showed that "she was indeed [his] supervisor at the time." Id. According to his complaint, Biji's arrival with Joanne somehow further stymied Plaintiff's ability to "cover the TACS specialist position." Id. Plaintiff alleged that Joanne and Quiney agreed on this development in order to punish Plaintiff for his EEO complaints and to make him "feel unimportant, unneeded, and . . . like less of a valued employee." Id. On December 27, 2008, the USPS issued a Notice of Right to File a Formal EEO Complaint in connection with this matter, but Plaintiff did not file one until January 6, 2009. Merlino Decl. ¶ 17. Accordingly, on January 15, 2009, the USPS dismissed this iteration of Plaintiff's complaint for its untimeliness. Id. ¶ 18.

After exhausting his administrative remedies, Plaintiff filed the Complaint in this Court on June 9, 2009.

DISCUSSION I. Rule 56: Standard of Review

A district court may properly grant summary judgment only "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 judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997).

"In assessing the record to determine whether there is a genuine issue to be tried . . . the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997).

Mere conclusory allegations, speculation or conjecture will not avail a party opposing summary judgment, see Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996), and "[f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (citing 10A Charles A. Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2725, at 93-95 (1983)).

In discrimination cases, "trial court[s] must be cautious about granting summary judgment to an employer when . . . its intent is at issue. . . . Because writings directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer's corporate papers, affidavits and depositions must be carefully ...

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