The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action alleging employment discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII), as amended, 42 U.S.C. § 2000e et seq.. Now before the Court is Defendant's motion for summary judgment. (Docket No. [#15]). For the reasons that follow, Defendant's application is granted and this action is dismissed.
Unless otherwise noted, the following are the facts of this case viewed in the light most favorable to Plaintiff.
Prior to January 2007, Plaintiff had been employed by the U.S. Postal Service ("USPS") for approximately thirty years. For the last six of those years, Plaintiff was employed as an Electronics Technician ("ET") in the USPS Maintenance Department in Rochester, New York. Such position was a "craft" union position, as opposed to a management position. However, the USPS provided opportunities for craft employees to gain managerial experience by taking "detail assignments" to management positions.
A craft employee, though, could lose his or her regular craft "bid" position by remaining on such a detail assignment too long. In that regard, the collective bargaining agreement ("CBA") between the USPS and the American Postal Worker's Union ("the Union") contained a provision concerning such detail assignments which stated, in pertinent part:
The duty assignment of a full-time maintenance employee detailed to a non-bargaining unit position, including a non bargaining unit training program, in excess of four (4) months shall be declared vacant and shall be posted and filled in accordance with the provisions of this Article. Upon return to the Maintenance Craft, the employee will become an unassigned regular. An employee detailed to a non-bargaining unit position will not be returned to the craft solely to circumvent the intent of this provision.
Def. Ex. 3, CBA Article 38.7.E. Despite the last sentence of this provision, Plaintiff maintains that as a practical matter, a craft employee could essentially remain on a particular detail indefinitely, as long as he did not stay in such detail for longer than four consecutive months, and then returned to his craft position for at least two weeks before resuming the detail assignment:
A. I was a union steward and I know what the contract says, it's 120 consecutive days, it clearly states -- and we even had that in our . . . Maintenance National Article 38, we actually specified a pay period, which is two weeks; we can go back for two weeks and then go back to a detail.*fn1
Q. And wasn't there some language in [the CBA] about not doing that if the intent was to circumvent the requirement.
A. Yes, that is in there, but you can never prove the circumvent stature. [sic] Plaintiff's Deposition ("Pl. Dep.") at 29-30 (emphasis added). Moreover, it appears that in general practice, craft employees who completed a four-month detail were often permitted to work for at least two weeks in their permanent position before returning to the same detail assignment, to avoid losing their permanent craft "bid." Def. Stmt. of Facts ¶ 7. However, as discussed further below, Defendant maintains that this occurred in situations in which the craft worker's union did not seek to enforce Art. 38.7.E. In other words, Defendant maintains, the union did not push the issue unless another union member wanted the bid of the employee assigned to the detail.
Employees were assigned to work in one of three shifts or tours, as follows: Tour I: 11 PM to 7:30 AM; Tour II: 7 AM to 3:30 PM; and Tour III: 3 PM to 11:30 PM. Plaintiff preferred to Work Tour III, even though she acknowledges that Tour II was the most desirable shift for most people. Pl. Dep. at 47. On the other hand, Plaintiff considered Tour I, "the Graveyard Shift," to be the least desirable shift, and she maintains that supervisors would threaten to assign employees to Tour I as a punishment
A. [Assignment to] Tour I has been threatened to us for years.
Q. That's how you get punished?
Q. Go to Tour I, the graveyard shift?
Between 2005 and January 2007, Plaintiff had been detailed to four non-bargaining unit positions: Maintenance Supervisor Tour III, Maintenance 010*fn2 Supervisor Tour III, Maintenance Supervisor Tour II, and Mail Processing Tour III.*fn3 Significantly, none of the assignments was to Tour I. On each of these details, Plaintiff's pay grade was Level 17, while her usual craft pay grade was Level 11. Consequently, these detail assignments permitted Plaintiff to earn more money. All of these detail assignments were approved by Vincent Catapano ("Catapano"), the Maintenance Manager at the Rochester USPS facility. See, Def. Stmt. of Facts ¶ ¶ 12-13.
In or about July 2006, there was a permanent job opening for Maintenance Supervisor, Tour III. Pl. Dep. at 37. Plaintiff applied for the position, as did Kevin Dyson ("Dyson"). Catapano selected Dyson for the position, even though Plaintiff maintains that she was the better candidate.*fn4 *fn5 In that regard, Plaintiff states that Dyson was less qualified and less experienced than she was, and that he had "problems with the paperwork" and "attendance problems." See, Def. Ex. 1 at p. 6; Pl. Dep. at 37-44; Pl. Aff. at ¶ ¶ 20-22.
Subsequently, Catapano approved Plaintiff for temporary detail
assignments. In January 2007, Plaintiff completed a four month detail
assignment in Mail Processing, and returned to her regular ET position
in the Maintenance Department. Plaintiff intended to remain in her ET
craft position for only two weeks, and then seek to be reassigned to
another detail in Mail Processing, which was the detail in which she
had just worked for four months. Accordingly, upon returning to her
craft ET position, Plaintiff went to Catapano and asked if she could
return to the detail in Mail Processing. Plaintiff indicates that over
the next two weeks, Catapano did not give her an answer, and that
eventually she reported for work in Mail Processing without his
express permission, since she interpreted his silence as "implied
consent. Pl. Dep. at 22. Catapano, though, became angry and directed
her back to work in her ET position. See, Pl. Dep. at 22-26. At that
point, Catapano denied Plaintiff's request to go to Mail Processing,
and told her that he needed her to remain in her craft position
because he was short-staffed for ETs. Id. at 26-27.*fn6
Plaintiff continued to ask Catapano about the detail, and a
few days later Catapano
told her that she could return to the Mail Processing detail, but if
she did, he would post her bid, meaning that she could lose her usual
position as an ET in the Maintenance Department. See, Pl. Ex. Vol. II,
Ex. J at 3. Specifically, Catapano indicated that if Plaintiff
returned to Mail Processing, he would have to post her ET job for bid
pursuant to CBA Article 38.7.E., since the Union would force him to
post the position. Pl. Dep. at 29-31. Plaintiff denies that the Union
was pressuring Catapano in that manner, and she maintains that she
spoke with a union shop steward, Doug Sheehan ("Sheehan"), who denied
that the union had said anything to Catapano concerning her ET
(However, Plaintiff has not provided any evidentiary proof in admissible form on this point, such as an affidavit from Sheehan or anyone else associated with the union.)
However, Plaintiff maintains that Catapano was incorrect in stating that the CBA required him to post her bid if she returned to the Mail Processing detail. See, Def. Ex. 1 at p. 5 ("Mr. Catapano claimed that it was by the National Agreement."). When asked in June 2007 to explain why she believed that Catapano was being dishonest on this issue, Plaintiff stated: "The old contract was vague on the topic. The new contract, which took affect [sic] Feb 3, 2007, clarified the matter. Mr. Catapano has never changed his position to match the new contract." Id. (emphasis added). However, Plaintiff maintains that Catapano told her about having to post her bid on January 25, 2007, which would have been before she maintains that the new contract became effective. Id. Furthermore, the 2003 CBA, which Plaintiff indicates was in effect in January 2007, contains the following statement: "An employee detailed to a non-bargaining unit position will not be returned to the craft solely to circumvent the intent of this provision." Def. Ex. 3 at p. 3. In an affidavit, Catapano states that he was required to follow the 2003 CBA, because the new agreement had not taken effect: "[I followed] Article 38 of the National Agreement which was in effect at that time. The new, 2007, National Agreement had not yet become effective. Article 38 states that employees cannot be returned to their bid position from a higher level detail in order to circumvent the requirements for reposting of the employee's position." Def. Ex. 4 at p. 2.*fn8 Catapano further states: "Under the old contract the union and I had agreed not to repost Ms. Bringley's position as long as she returned to her ET position for 2 weeks between details and did not return to the same position on detail. . . . In this case, she would have been returning to the same Mail Processing position." Def. Ex. 4 at p. 6 (emphasis added).
Plaintiff alleges that by threatening to post her bid, Catapano prevented her from returning to Mail Processing, and treated her less favorably than three other Maintenance Employees who were permitted to remain on details without having their bids posted: Two males, Donald Zimmerman ("Zimmerman") and Donald Recino ("Recino"), and a female, Rebecca Neven ("Neven"). Def. Exhibits, Ex. 1 at p. 4. Plaintiff, though, does not specifically indicate that Catapano was involved in those assignments, or when they occurred, and Catapano denies that he detailed Zimmerman or Recino. Def. Ex. 4 at p. 4. As for Nevin, Catapano indicates that she was given a repeat detail assignment, but that unlike Plaintiff, Nevin's bid position was as a custodian, and that the Union was not requiring him to post Nevin's position because there were already a number of unfilled custodian's positions. Id.*fn9
At approximately this same time, Plaintiff also asked Catapano if she could have a detail to Maintenance Supervisor Tour III, since there was an opening for that position. Catapano responded that he would place Plaintiff on a Maintenance Supervisor Detail Tour I, but not Tour III. In that regard, Catapano indicated that he wanted to send Plaintiff to Tour I, and move David Turner ("Turner") from Maintenance Supervisor Tour I, where he had been for some time, to Maintenance Supervisor Tour III. On this point, Defendant maintains that the Maintenance Department had a policy that required detail supervisors to rotate shifts, and that Turner had already served as Maintenance Supervisor Tour I, while Plaintiff had never served on Tour I. Plaintiff admits that she had never served on Tour I, but denies that there was any formal or written policy concerning rotation. One of Plaintiff's supervisors who was involved in the decision, Nicholas Mitrakos ("Mitrakos")*fn10 , agrees that there was no formal policy concerning rotation,*fn11 but indicates that Turner was permitted to move from Tour I to Tour III, even though he had less overall seniority than Plaintiff, because he was already serving in the Maintenance Supervisor detail on Tour I, and had more seniority in that program. See, Mitrakos Aff., Def. Exhibit 5 at ¶ ¶ 15, 19 ("[Turner] was interested into [sic] going to Tour III. Being he was already participating, he would be senior to her in the program.").*fn12
In any event, Plaintiff rejected the offer to go to Tour I, since she had more experience and seniority than Turner. See, Pl. Dep. at 46 ("If that would have been the only one, I would have taken it, but to let Dave Turner work my hours while I worked Tour I, no, I will not do that; I had more seniority."). In that regard, Plaintiff indicates that she would have taken detail assignment to Tour I if it was the only one available, but she did not believe that it was proper for an employee with less seniority to have a better tour assignment than her. Pl. Dep. at 45-46. As a result, Plaintiff remained in her usual ET craft position, at her usual rate of pay.
Plaintiff maintains that Catapano's actions, in "denying" her the Mail Processing detail and the Tour III Maintenance Detail, were discriminatory on the basis of her sex. At deposition, Plaintiff indicated that Catapano's actions were discriminatory because he similarly mistreated another female employee, Ruth Oneske ("Oneske"). Pl. Dep. at 48. In that regard, Plaintiff states that Oneske worked as a Supervisor of Maintenance for Don Wania ("Wania"), who was Catapano's predecessor as Maintenance Manager. Pl. Dep. at 49-51. Plaintiff asserts that Oneske was actually doing the work of the male supervisor above her. Pl. Dep. at 49 ("She was doing 19 level work and only getting 17 level pay. . . . Her job is Supervisor of Maintenance, but she was doing the MMO's job."). Plaintiff states that this situation existed during "the 1990s," prior to Catapano becoming Maintenance Manager. Id. Once Catapano became Maintenance Manager, Oneske asked him if she could detail to an open MMO position, since she was already doing the work of an MMO. Catapano permitted Oneske to detail as an MMO for awhile, but then stopped, for reasons that are unspecified in the record:
When Vinny [Catapano] came in, she [Oneske] asked -- because now there was another MMO position open, and since she was already doing the work -- for awhile he let her be detail and was paying her the level 19 pay, and then all of a sudden he says, 'I can't do it anymore,' and he stopped having her do the pay, so that's when she initiated her EEO complaint.
Pl. Dep. at 51. Plaintiff further states that Catapano referred to Oneske as a "glorified secretary," although the basis for her knowledge of such a statement is unclear. Pl. Dep. at 51-52. Plaintiff adds that Catapano talked about "you know, dating women, going out drinking with women." Id. at 52.*fn13
In or about March 2007, Plaintiff applied for and was accepted into a USPS Associate Supervisor program for training in the area of customer service. See, Pl. Aff. at ¶ 7; Pl. Dep. at 32. Upon completion of that program, Plaintiff became Associate Supervisor of City Collections, and she reported to the Rochester Postmaster, Karl Andersen. Pl. Dep. at 35-36. Plaintiff's immediate supervisor was James Fink ("Fink"). Pl. Dep. at 56.
On June 7, 2007, Plaintiff filed an EEO complaint with the USPS. Pl. Ex. Vol. II, Ex. J. The complaint concerned Catapano's decisions in January 2007, to deny Plaintiff's request to detail to Mail Processing, and her request to detail to Maintenance Supervisor, Tour III. Notably, Plaintiff indicated that it was Mitrakos, not Catapano, who told her that if she went to Maintenance Supervisor it would be on Tour I, not Tour III. Id. at 2. Plaintiff described her conversation with Mitrakos as follows:
Mr. Mitrakos told me that he was going to move Dave Turner to Tour 3 and put me on Tour 1. When I asked about the move, Nick stated that Dave was senior to me and that he would not leave him on Tour 1. When I told him about Dave's seniority date (Nov 26, 2005) and questioned the move, Nick told me that he was not going to leave him there. 'I'm not going to do that to the poor guy.'"
Id. at 2. Plaintiff also complained about Catapano's alleged decision to deny her request to return to Mail Processing. In that regard, Plaintiff indicated that Catapano told her that if she took the detail, he would post her bid because it was required by the CBA, and because another employee, Terry Hine ("Hine"), wanted her position. Id. at 4. In her EEOC Complaint, Plaintiff also alleged that Catapano had mistreated her in May ...