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Therese M. v. John E. Potter

May 21, 2012


The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court



Plaintiff Therese M. Mento commenced this employment discrimination action by filing a Complaint in the United States District Court for the Western District of New York. (Docket No. 1.) Therein, she alleges that Defendant discriminated against her based on her sex, pregnancy, and pregnancy-related disability, subjected her to a hostile work environment, and took retaliatory action against her.*fn1 Plaintiff brings this action pursuant to § 102(a) of the Civil Rights Act of 1991, 42 U.S.C. § 1981a and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"). Presently before this Court is Defendant's Motion for Summary Judgment seeking dismissal of the complaint in its entirety (Docket No. 76). For the following reasons, Defendant's motion is granted in part and denied in part.


A. Facts

Plaintiff first began working for the United States Postal Service ("USPS") on September 29, 1984 as a letter sorting machine clerk. (Def's. Stmt. ¶¶ 6, 7, Docket No. 77.)*fn2 Over approximately the next twenty years she held various jobs with USPS, including distribution clerk, flat sort operator, an "SPBS keyer," transfer clerk, express mail clerk, general clerk, and a sales and service associate, otherwise referred to as a "window clerk," tasked with helping customers at the post office, sorting mail, retrieving mail for customers, and processing passports. (Id. ¶¶ 6, 7, 10, 11, 13, 18, 21, 22, 25, 28, 32, 33.)

Relevant to this case are the period Plaintiff worked as a window clerk at the Kenmore Post Office, both before and after she gave birth to her daughter, and the years after she left that position.

1. Mento Starts Work at the Kenmore Post Office

Relevant to this case, Mento began working as a window clerk at the Kenmore, New York Post Office in or about November of 2003. (Id. ¶ 36.) Her original station manager was Rose McLellan. (Pl.'s Stmt. ¶ 36, Docket No. 97.) McLellan was replaced in December of 2004 by James Gavner, who became Plaintiff's direct supervisor. (Id.) At that time, Mento was approximately five-months pregnant. A series of incidents then followed, ultimately culminating in the present lawsuit.

Among these, one of the most significant occurred on January 26, 2005.*fn3 Mento was instructed by Gavner to "clear the carrier." (Def.'s Stmt. ¶ 50.) This entailed reviewing and signing off on certain paperwork for mail delivery drivers. (Id. ¶ 51; Pl.'s Stmt. ¶ 51.) Instead of immediately complying with Gavner's instruction, Mento first worked to complete a different task, moving equipment between the post office's loading dock and the front window. (Id. ¶ 52.) Gavner repeated his instruction. (Id.) Mento again did not go to clear the carrier, but helped complete a customer's passport application. (Pl.'s Stmt. ¶ 54.) By the time Plaintiff left work she still had not cleared the carrier. (Def.'s Stmt. ¶ 55.) As a result, Plaintiff received an oral warning from Gaver through Mike Brown, the Kenmore Post Office's union steward. (Id. ¶ 63; Pl.'s Stmt. ¶ 56.) In response, Mento initiated an administrative discrimination proceeding through the USPS Equal Employment Opportunity office ("EEO"). (Pl.'s Stmt. ¶ 63.)

On January 31, 2005, based on her obstetrician's recommendation, Mento made a "light duty" request for a 25-pound lifting restriction. (Id. ¶ 66.) This request was approved on February 2, 2005. (Def.'s Stmt. ¶ 68.) On that day, Gavner stated that her medical restrictions would not be approved until she received written confirmation. (Pl.'s Stmt. ¶ 70.)

According to Mento, on that same day, as she left work, Gavner emerged from the Post Office and yelled at her, "[w]here is your paperwork?" (Def.'s Stmt. ¶ 73.) When she responded that her station's financial closeout work was on the computer, he stated that he would be sitting down to talk with her the following day. (Id. ¶ 73.)

Mento made a second light duty request on February 14, 2005, asking that her work be restricted to 24-hours per week. (Pl.'s Stmt. ¶ 77.) This request was granted on February 15, 2005. (Id.)

On March 2, 2005, Gavner learned that Mento had filed an EEO complaint against him. (Def.'s Stmt. ¶ 80.) From this point on, Mento alleges that she experienced a series of acts she found discriminatory and related to her EEO filing. On March 8, 2005, Gavner warned her to watch her "clock rings," referring to the times she would punch in and out of work. (Id. ¶ 81.) Gavner also described Mento's pregnancy as "her disability" and that she was being scrutinized because of this disability. (Pl.'s Stmt. ¶ 81.) On March 11, 2005, acting supervisor Mark Pfohl told Mento that he, too, was watching her clock rings. (Def.'s Stmt. ¶ 82.)

Other incidents followed. On March 14, 2005 Gavner posted a job vacancy for a postmaster position in which he knew Mento had an interest. (Pl.'s Stmt. ¶ 88.) But by the time Gavner posted this vacancy, the deadline for applications had already passed. (Id.) Then, on March 17, 2005, Gavner removed two of Mento's three floor mats from her work area, allegedly because he and another employee had tripped over them. (Def.'s Stmt. ¶¶ 93, 95.) These floor mats were used by employees to alleviate the strain of standing for most of the day. No other employees' floor mats were removed. (Pl.'s Stmt. ¶ 99.)

Mento called in sick to work on Friday, March 18, 2005. (Def.'s Stmt. ¶ 106.) In order to complete a financial closeout of Mento's drawer, Gavner broke into her cash drawer to retrieve money contained therein.*fn4 When Mento came into work on March 21, 2005 Gavner attempted to give her new keys to her cash drawer. (Id. ¶ 107.) Plaintiff refused to accept the keys, believing that the manner in which they were being given was not in compliance with relevant post office regulations and because the drawer had not been audited. (Id. ¶ 108) A dispute resulted, ultimately ending with Gavner telling her to go home. (Id. ¶ 111) Plaintiff left. (Id.) It was later discovered that the drawer for which Gavner had asked Plaintiff to accept keys was, in fact, short $7.01. (Id. ¶ 113.) Gavner later signed a postal form that no letter of demand would be issued to Mento for this discrepancy. (Id. ¶ 115.) Nevertheless, this incident would later feature as one of the grounds for Mento's first suspension without pay.

On March 24, 2005 a mediation session was held, involving Mento and Ignatius Vaccaro, Gavner's direct supervisor. (Pl.'s Stmt. ¶ 116.) During that mediation, Vaccaro stated that Plaintiff would need to appear for a "Fitness for Duty" examination. (Id.) According to Plaintiff, such an examination is conducted for mental health or substance abuse reasons. Discomforted by the implications of such an examination, she replied that she would not attend such an examination, but would instead continue working at the Kenmore Post Office. (Id.) The examination had been scheduled for March 28, 2005.

On March 29, 2005, Mento came into work but was informed that she first had to attend the fitness for duty examination and that she should not clock in. (Id. ¶ 116.) Mento proceeded to clock in anyway and, sometime later, injured herself when a flip-top counter door fell on her, scraping her arm, and resulting in her pregnant belly hitting the lower stationary counter. (Id. ¶ 117.) Feeling that her pants were wet, Mento became concerned that her water broke. (Id.) Mento was sent to the emergency room and released later that night, despite Gavner telling her that she would first need to go to the Postal Service Medical Unit. (Def.'s Stmt. ¶ 120.) Mento did not do so, and, on April 1, 2005, approximately eight months into her pregnancy, delivered her daughter by emergency caesarian section. (Id.)

On April 11, 2005 Plaintiff received notice that she was being suspended from work without pay for fourteen days. (Id. ¶ 133.) The basis for Mento's suspension was her failure to follow instructions and improper conduct on March 21 and 29, 2005. (Id. ¶ 133.) Her letter of suspension states that she failed to follow Gavner's instruction to accept keys to her new cash drawer and to immediately clock out. (Def.'s Ex. 12, Docket No. 85.) She was also disciplined for failing to keep her fitness of duty examination appointment on March 28, 2005, and for clocking into work the following day despite instructions to the contrary. (Id.) On appeal, the suspension was upheld, but reduced from fourteen to seven days. (Def.'s Ex. ¶ 135.)

2. Mento Returns from Maternity and Disability Leave

Upon her return from an extended maternity and disability leave on November 9, 2005 Mento's problems with Gavner continued. She asked Gavner what procedural and policy changes had been instituted in her absence. (Id. ¶ 147.) Gavner did not inform her of all changes. (Id. ¶ 148.) Gavner also directed a customer complaining about a comment Mento had made to contact Victor Laudisio, the Customer Relations Coordinator. (Pl.'s Stmt. ¶ 188.) Plaintiff did not learn about this complaint until a pre-disciplinary interview on November 21, 2005. (Id.)

Mento also had problems with other co-workers. Myrlene Lee, a new acting supervisor, instructed Mento to punch in at exactly 8:15 a.m every morning, although, according to Mento, Lee did not apply the same strictness to other employees. (Def.'s Stmt. ¶ 151.) On November 16, 2005 Mento got into a dispute with Brown over who would perform back room duties, including preparing mail for pick-up and clearing carriers, during which Brown accused her of not being a team player. (Pl.'s Stmt. ¶ 153.) Then, while on her lunch break, she became upset at the thought of working in the backroom while Gavner and Brown were the only other employees in the post office. (Id.) Plaintiff consequently contacted a postal inspector about being harassed and bullied at work, after receiving, what she viewed as ineffectual assistance from Pfohl, the acting supervisor. (Id. ¶ 160.) While on the phone, Brown walked past her three times leading her to suspect he was spying on her. (Def.'s Stmt. ¶¶ 160, 162.) After finishing the call she left the post office, leaving behind a leave slip with the word "harassment" written on it, which she gave to Pfohl. (Id. ¶ 163; Pl.'s Stmt. ¶ 163.) The following day, Plaintiff failed to appear for work and did not call in sick until approximately 10:00 a.m., which was approximately three hours after she would normally have been required to call in sick. (Def.'s Stmt. ¶¶ 165, 167.)

On another occasion, another co-worker stated that everyone used to get along, and that it was going to be a long day, after Plaintiff was called to the front window to process a passport application. (Pl.'s Stmt. ¶ 172.) Plaintiff felt distraught and isolated and informed Lee, the acting supervisor, that she was going home sick. (Id.) Before she left, Gavner asked her to complete financial paperwork and to use his office. (Id.) There, she found, on his desk, a disciplinary form requesting she, again, be suspended for fourteen days. (Id.) Mento left, and did not resume work until December 10, 2005, in a new position, outside the Kenmore Post Office. (Def.'s Stmt. ¶ 173.)

On December 16, 2005 Plaintiff received a 14-day suspension. (Id. ¶ 175.) The basis for this suspension was failure to properly discharge the duties of her position, and being absent without official leave. (Id. ¶ 175.) Mento again appealed the suspension, which was also reduced to seven days. (Id. ¶ 177.)

3. Mento Leaves the Kenmore Post Office

Starting in October of 2005, Plaintiff applied for a number of positions for which she was rejected. These included the position of complaint and inquiry clerk (Def.'s Stmt. ¶ 140), and an operations program support detail position on February 26, 2006 (id. ¶ 179). In March of 2006, she was not chosen for a number of other positions, including a claims and inquiry clerk work detail (id. ¶ 181), secretary to the manager of marketing detail (id. ¶ 183), ad hoc secretary (id. ¶4 185), and express mail tech (id. ¶ 187). In March of 2008 she was initially not chosen for a work detail in the training department, but was provided it sixteen days later, after she complained to Sandra Damasiewicz, manager of distribution operations. (Id. ¶¶ 189, 190; Pl.'s Stmt. ¶ 190.)

Additional incidents followed. Around April 30, 2008, she was admonished by her supervisor, Yvonne Lewis, for speaking to senior plant manager Kathleen Burns without permission. (Pl.'s Stmt. ¶ 194.) On May 5, 2008, Lewis advised Damasiewics that Mento was not performing her duties in a timely manner. (Id. ¶ 200.)

Plaintiff continued experiencing acute anxiety and her psychologist and physician deemed her unable to work. (Def.'s Stmt. ¶ 203.) From May 8, 2008 to May 3, 2009, Mento was off-work for mental health reasons. (Id. ¶ 205; Pl.'s Stmt. ¶ 205.) During this period, John Pietrzak, one of Mento's supervisors disputed whether her leave was supported by proper medical documentation. (Id. ¶ 206; Def.'s Stmt. ¶ 206.) When Mento returned to work she heard from Mike Bozek, a new supervisor, that Damasiewicz, Irene Barone, a labor relations specialist, and Kathleeen Burns, senior plant manager, had told him to go through her file to find material on which to discipline her. (Pl.'s Stmt. ¶ 209.)

B. Procedural History

Mento filed her first administrative discrimination claim on January 28, 2005. (Def.'s Stmt. ¶ 211.) It was dismissed on October 11, 2005. (Id. ¶ 213.) The Equal Employment Opportunity Commission ("EEOC") affirmed the dismissal on November 1, 2007. (Id. ¶ 214.) She initiated a second administrative discrimination claim on November 2, 2005, which was dismissed on November 29, 2007. (Id. ¶¶ 215; 217.) A third administrative discrimination claim followed on February 19, 2006, and was dismissed on October 29, 2007. (Id. ¶¶ 218, 220.)

On January 25, 2008 Plaintiff commenced the present lawsuit by filing a complaint in United States District for the Western District of New York. (Docket No. 1.) Defendant answered and the parties engaged in discovery under the supervision of the Honorable Hugh B. Scott, United States Magistrate Judge. After a number of extensions, Defendant filed the instant motion for summary judgment on February 15, 2012. Defendant's motion was fully briefed on April 30, 2012, at which time this Court took the motion under advisement without oral argument.


A. Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is warranted where 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). A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003). A fact is "material" if it "might affect the outcome of the suit under governing law." Anderson, 477 U.S. at 248. In a case where the non-moving party bears the ultimate burden of proof at trial, the movant may satisfy its burden by pointing to the absence of evidence supporting an essential element of the non-moving party's claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

At this stage, the function of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.Thus, summary judgment is not appropriate if "there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party." Ford, 316 F.3d at 354.

When deciding a motion for summary judgment, a court must view the evidence and the inferences drawn from the evidence "in the light most favorable to the party opposing the motion." Addickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S. Ct. 1598, 1609, 26 L. Ed. 2d 142 (1970). However, the party against whom summary judgment is sought "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002). "Only when reasonable minds could not differ as to the import of evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991).

B. Plaintiff's Disparate Treatment

Pointing to a combination of acts, Plaintiff alleges she has been discriminated against because of her sex, pregnancy, and pregnancy-related disability. These include, but are not limited to, her assertions that she was subjected to:

* suspensions ...

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