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Patrick Delia v. Patrick R. Donahoe

May 23, 2012


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


Plaintiff Patrick Delia commenced this action alleging that his former employer, the United States Postal Service (the "Postal Service"), violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), by discriminating against him based upon his national origin and by retaliating against him because he filed administrative complaints of discrimination.*fn2 Presently before the Court is defendant's motion, made pursuant to Federal Rule of Civil Procedure 56, for summary judgment. For the reasons set forth below, defendant's motion is granted in part and denied in part.


The material facts, drawn from the Amended Consolidated Complaint and the parties' Local Civil Rule 56.1 Statements, are undisputed unless otherwise noted.*fn3

The Parties

Plaintiff is of Italian national origin. He began working for the Postal Service in temporary or training capacities as early as 1975, and became a permanent employee on May 17, 1980. Plaintiff was originally assigned to work in the JFK postal facility located in Brooklyn, New York. As of February 7, 1981, plaintiff's official title was "Maintenance Mechanic, Mail Processing Equipment" ("MPE mechanic"), and his duties included "breakdown and preventative maintenance and daily maintenance of mail processing equipment." (Def.'s 56.1 ¶ 6.)

In addition to JFK, plaintiff worked at, inter alia, two other Postal Service facilities: the Western Nassau Processing and Distribution Center in Garden City, New York ("Western Nassau") between 1989 and 1999, and the Hempstead Main Post Office in Hempstead, New York ("Hempstead") from 2000 through 2004. Plaintiff retained his MPE mechanic title throughout this time period. His employment with the Postal Service ultimately came to an end in April 2004.

Stephen Vertescher served as the Supervisor of Maintenance Operations at Western Nassau, and as plaintiff's direct supervisor, between January and May 1999. Dominick Brunone served as the Manager of Maintenance at Western Nassau beginning in July 1998 and he remained in that capacity as of 1999 when plaintiff left that location. Brunone did not supervise plaintiff directly, "but rather was separated in the chain of command from the MPE mechanics by the Supervisors of Maintenance," including Vertescher. (Id. ¶ 29.) Dominick Bratta served as Acting Plant Manager and, later, as Plant Manager of Western Nassau between March and November 1999. Keith Fischer served as Western Nassau's Acting Plant Manager and, later, as Plant Manager between November 1999 and at least February 2001. (Id. ¶¶ 40-42.)

The "Dye Date" Incident

As of October 1998, plaintiff's job duties including cleaning out mail processing machines and changing "dye dates" to ensure that the proper date was stamped on each piece of mail processed by that machine. On January 8, 1999, plaintiff received a Letter of Warning (the "First LOW") charging him with two counts of "Failure to Follow Instructions" based upon his failure to correctly change the dye dates on December 17, 1998, which caused at least 30,000 pieces of mail to be "cancelled" using an incorrect date. (Decl. of Kelly Horan Florio ("Florio Decl."), Ex. AA.) Plaintiff asserts that even though "at least a half-dozen other employees shar[ed] responsibility for ensuring that type of error did not occur, only I was charged." (Decl. of Patrick Delia, dated July 18, 2011 ("Delia Decl.") ¶ 13.) According to plaintiff, Vertescher issued the First LOW at Brunone's direction.

On January 27, 1999, Vertescher received a Proposed Letter of Warning, signed by Brunone, which stemmed from the same dye date incident and stated: "This proposed letter of warning is being issued to you in lieu of a 7-day time-of suspension." (Florio Decl., Ex. BB.)*fn4

The May 6, 1999 "Missing in Action" Incident

On May 6, 1999, Vertescher informed plaintiff that Acting Supervisor Michael Lutz had reported plaintiff "missing in action" for a portion of plaintiff's May 3, 1999 shift. Plaintiff's pay was docked for the time Lutz reported him to be missing. (Delia Decl. ¶¶ 15-17.) Plaintiff telephoned Lutz at home that day and, following the conversation, plaintiff believed that any attendance and pay issues had been the result of a miscommunication between supervisors. Plaintiff's pay was, in fact, restored several days later. (Id.)

Plaintiff's May 7, 1999 Contact with the EEO Office

On May 7, 1999, plaintiff filed a request with the Postal Service's Office of Equal Employment Opportunity ("EEO") for "precomplaint counseling." (Delia Decl. ¶ 22.) Plaintiff asserted that Brunone had "unfairly" issued the First LOW and had "baselessly termed [him] a 'high maintenance employee.'" (Id.) Plaintiff claimed that he was being discriminated against because of his "Italian heritage." (Id.) The EEO acknowledged receipt of plaintiff's request for pre-complaint counseling by letter dated May 20, 1999. (Delia Decl., Ex. 15; Def.'s 56.1 ¶ 285; Pl.'s 56.1 ¶ 148.)

Inspector Nater's Investigation Begins

On May 17, 1999, Brunone wrote a letter to Postal Service Inspector Felix Nater regarding a "Threatening Situation" involving plaintiff. (Florio Decl., Ex. DD.) Brunone informed Nater that plaintiff had called Lutz at home in connection with the May 6, 1999 "missing in action" incident, "which resulted in [Lutz] informing [Brunone] that [Lutz] never wanted to act as [plaintiff's] supervisor again." (Id.) Brunone stated that he "fe[lt] that Mr. Delia's call to [Lutz's] famil[y's] house made [Lutz] feel threatened." (Id.) Brunone continued:

After that incident I started hearing stories of several other incidents that occurred before I was on duty at Western Nassau. These incidents include physical assaults, threats, and spitting in people's faces, all involving this same employee, Patrick Delia . . . [O]f the four people [involved], only one is willing to speak about it. This individual, Dennis Murphy[,] recounted an incident in which Mr.

Delia physically assaulted him. The other people I spoke to appear frightened to come forward. In my opinion they are worried for the safety of themselves and their families.

I myself was approached by Mr. Delia in my office [on May 7, 1999] and felt quite uneasy by his demeanor, to the point that I made sure to have someone else (a union official) come into my office rather than be alone with him. This occurred on a day that Mr. Delia called me from home and got upset on the phone, upset to the point that he drove to work to confront me. (Id.) Brunone concluded by requesting Nater's assistance. Subsequently, Nater commenced an investigation into plaintiff's alleged conduct.

Defendant asserts that as part of this investigation, Nater "interviewed witnesses, including plaintiff, and reviewed plaintiff's Official Personnel File and criminal record," and that Nater "followed standard procedure" in conducting his investigation. (See Def.'s 56.1 ¶¶ 130, 131.) Plaintiff asserts that Nater did not follow "Threat Assessment Standard Operating Procedures" because he failed to interview certain witnesses, took statements only from witnesses "who were favorable to" the Postal Service, distributed copies of plaintiff's criminal record, and failed to take a written statement from plaintiff. (Pl.'s 56.1 ¶ 131.)

On May 21, 1999, Nater interviewed Dennis Murphy, who recounted an altercation with plaintiff that purportedly took place in 1996. According to Murphy, plaintiff grabbed Murphy, spilled coffee on him, threw him against a wall, and yelled at him. (See Florio Decl., Ex. II.)*fn5 In June 1999, Brunone passed on additional information to Nater: Western Nassau employee George Fuchs had informed Brunone that, on May 6, 1999, plaintiff had asked Fuchs for directions to Lutz's home. Fuchs reported that he was concerned for Lutz's safety and telephoned Lutz to relay the incident. (See Florio Decl., Ex. JJ.) Finally, on June 8, 1999, Lutz supplied Nater with a written statement that described, inter alia, his eyewitness account of a physical altercation between plaintiff and Jeff Allen that occurred two years earlier, during which plaintiff knocked Allen to the ground. (Florio Decl., Ex. EE at 2218.)

On July 7, 1999 and July 12, 1999, Nater issued an Investigative Memorandum and Supplemental Investigative Memorandum, respectively, which detailed his investigation into plaintiff's conduct. In the July 12, 1999 Supplemental Investigative Memorandum, Nater noted that during plaintiff's June 8, 1999 interview, plaintiff had "stated [that] he was arrested twice for DWI and [had] one juvenile arrest for firecrackers" but "that there were no other arrests or convictions to report." (Florio Decl., Ex. FF at 1687.) However, Nater had uncovered evidence that, contrary to these assertions, plaintiff had been arrested six times between 1972 and 1992 and had been convicted in connection with five of those arrests.*fn6 (Id.) Furthermore, Nater reported that plaintiff had "failed to explain the convictions" that occurred prior to his employment in his May 1980 Postal Service Application for Employment,*fn7 and that plaintiff failed to report the arrests and convictions that occurred after his employment commenced. (Id. at 1687-88.) Plaintiff asserts that at the time he completed his employment application, he was "told by the administrator of the application process" to list felonies on the application and to separately list misdemeanors. (Pl.'s 56.1 ¶ 176.) According to plaintiff, he "listed the charges on a separate sheet and handed it in with his application." (Id.)

On August 9, 1999, Brunone sent a follow-up memorandum to Nater describing an encounter he had with plaintiff the prior day. (Florio Decl., Ex. KK.) Brunone asserted that, as he drove away from the office, plaintiff drove up along side of him, partially crossed over into Brunone's lane (forcing Brunone to drive in the shoulder lane), and yelled profanities at Brunone. (Id.) Brunone further stated that his parents received a "strange phone call" that night and, based on the contents of that call, Brunone believed that plaintiff was trying to obtain Brunone's home address and telephone number. (Id.) Plaintiff disputes the veracity of Brunone's accusations, asserting that the "incident[s] never occurred and [were] created by Brunone because he knew the prior investigation did not contain reliable and truthful evidence of wrongdoing by Delia." (Pl.'s 56.1 ¶ 139.) Brunone's accusations were incorporated into two supplemental investigative memoranda issued by Nater dated August 17, 1999 and September 5, 1999, respectively. Plaintiff's Second Letter of Warning On May 21, 1999, plaintiff was issued a Letter of Warning that charged him with "Failure to be Regular in Attendance." (Florio Decl., Ex. MM.) The Letter of Warning (the "Second LOW"), signed by Vertescher, listed seven dates between February and May 1999 on which plaintiff had taken some form of either annual or sick leave. The Second LOW further stated that a pre-disciplinary interview was held on May 20, 1999, during which plaintiff "did not provide any information that would indicate that discipline should not be issued." (Id. at 230.) Plaintiff asserts that he "had supervisory approval for each and every absence." (Pl.'s 56.1 ¶ 148.) Plaintiff's June 1, 1999 Referral to EAP Counseling On June 1, 1999, Brunone referred plaintiff to the Postal Service's Employee Assistance Program ("EAP"). Brunone indicated that the reasons for plaintiff's referral were "Misconduct/Disruptive Behavior," "Unsatisfactory Work Performance," and "Work Relationship." (Florio Decl., Ex. OO.) Plaintiff avers that when he arrived for the EAP interview, the counselor "had no idea why I was there." (Delia Decl. ¶ 52.)

Plaintiff's Emergency Placement on Off-Duty Status

On June 14, 1999, Brunone notified plaintiff in writing that: "[Y]ou are placed in an off-duty (without pay) status effective 10AM June 14, 1999 and [will] continue in this status until you are advised otherwise. The reason for the action is: Your retention in a duty status may result in injury to yourself and others." (Florio Decl., Ex. OO.)*fn8 During his deposition, Brunone testified that his decision to place plaintiff on emergency placement on off-duty status was based upon the following factors: (1) the May 6, 1999 incident between plaintiff and Lutz, including his subsequent conversation with Fuchs, after which Brunone concluded that Lutz "could have been in danger," (2) the prior altercations plaintiff had with Dennis Murphy and Jeff Allen, and (3) Brunone's own interactions with plaintiff. (Brunone Dep. at 137, 139.)

Plaintiff asserts that at least one other non-Italian similarly situated employee who engaged in comparable misconduct was disciplined less severely by Brunone. Specifically, on July 15, 1999, Western Nassau Supervisor of Maintenance Operations Jim Mullins became involved in a verbal altercation with a fellow supervisor about the assignment of a certain employee. During the course of the altercation, Mullins pushed the employee towards the other supervisor and said "you take him." (Def.'s 56.1 ¶ 275; Pl.'s 56.1 ¶ 273.) Brunone issued Mullins a Proposed Letter of Warning in lieu of a seven day suspension on a charge of Inappropriate Conduct. (Florio Decl., Ex. LLL.)

Plaintiff's 1999 Notice of Removal

On or about July 30, 1999, plaintiff attended a pre-disciplinary hearing with Brunone, Labor Relations Specialist George Fredericks, and American Postal Workers Union ("Union") representatives Jim McCazzio and Joe Hild. During this hearing, Brunone and Fredericks asked plaintiff, inter alia, about the contents of his employment application. Plaintiff responded that he had told the truth on his application and had filled it out as he was instructed.

On August 10, 1999, the Postal Service issued plaintiff a Notice of Removal, effective September 13, 1999. The Notice of Removal, which was signed by Brunone and Bratta, set forth two charges against plaintiff. (Florio Decl., Ex. H.) First, plaintiff was charged with "Violation of the USPS Policy on Acts and Threats of Violence in the Work Place." The Notice outlined the May 6, 1999 incident with Lutz, as well as a subsequent conversation plaintiff had with Brunone, which Brunone perceived to be an attempt to "intimidate [him] from taking any administrative action against [plaintiff]." (Id. at 224.) The Notice further stated that plaintiff's "conduct is aggravated by the fact that [he] had altercations with other employees in the past including Mr. Dennis Murphy and Mr. Jeffrey Allen." (Id.) The Notice also set forth that Nater's background investigation had revealed plaintiff's arrest for (and ultimate plea of guilty to) a charge of assault in May 1992, which "further indicate[d] [plaintiff's] propensity for this type of conduct." (Id.) Finally, the Notice stated that the Postal Service had posted copies of its "Policy on Acts and Threats of Violence in the Workplace" (the "Workplace Violence Policy") throughout Western Nassau, and that these postings "indicate that there will be zero tolerance of acts [or] threats of violence in our workplace." (Id. at 225 (emphases omitted); see also Florio Decl., Ex. IIII.)

The second charge in the Notice of Removal was "Failure to List Arrests and Convictions on PS Form 2591 (Application for Employment)." (Id. at 225.) This charge asserted that plaintiff answered Question 18 of his employment application, which asked whether the applicant has "even been convicted of an offense against the law," by checking the "NO" box even though, as set forth above, plaintiff had at least two prior convictions at that time. The Notice of Removal, citing both the Employee and Labor Relations Manual Section 666 and the applicable collective bargaining agreement, concluded that plaintiff's submission of false information in his employment application constituted grounds for termination. Finally, the Notice of Removal stated that plaintiff's First and Second Letters of Warning were considered as part of the decision to terminate his employment.

Plaintiff contends that other Postal Service employees who engaged in similar (or even more severe) misconduct were disciplined in a less severe manner. For instance, Theodore Lowery, a postal worker at Western Nassau, was involved in a physical altercation with a female employee during the summer of 1999. According to plaintiff, during that altercation, Lowery grabbed the other employee, pushed her against a sink, and repeatedly grabbed her backside. (Pl.'s 56.1 ¶¶ 319-22.) Plaintiff asserts that, although Lowery's conduct violated the Postal Service's zero tolerance Workplace Violence Policy, and despite the fact that Lowery lied to Brunone during his pre-disciplinary hearing, Brunone decided not to terminate Lowery. (Id. ¶¶ 323-27.) Instead, Lowery was given a Last Chance Agreement and a four-month suspension. (Id. ¶¶ 327-31; see also Delia Decl. ¶¶ 82-83.)

Plaintiff's September 30, 1999 EEO Complaint

On September 30, 1999, plaintiff filed a formal EEO Complaint alleging disparate treatment and retaliation. (Florio Decl., Ex. OOO.) Plaintiff listed the following as the bases for his complaint: (1) the First and Second Letters of Warning, (2) the May 6, 1999 "missing in action" incident, (3) plaintiff's June 1, 1999 referral to EAP counseling, (4) Nater's interview of plaintiff on June 8, 1999, (5) plaintiff's emergency placement on off-duty status without pay, and (6) plaintiff's termination, which was effective September 13, 1999. Plaintiff's 2000 Arbitration Hearing and Decision Meanwhile, plaintiff also filed a grievance with respect to the August 10, 1999 Notice of Removal, and an arbitration hearing was held over four dates in March and May 2000. Labor Relations Specialist Fredericks represented the Postal Service during the hearing. Plaintiff asserts that as part of Fredericks's closing remarks, Fredericks mentioned plaintiff's father and, "in an Italian accent, pronounced -- and drawn out -- pronounced [plaintiff's] father's name[,] Pasquale." (Pl.'s Dep. at 479-80.) Plaintiff further contends that Fredericks "told the arbitrator that my father taught me how to lie on [a] postal employment application [and how] to lie or be deceitful during my postal career. (Id. at 476.) According to plaintiff, Fredericks attempted to draw an association between plaintiff and his father (individuals of "Italian heritage") and "criminal activity," although plaintiff acknowledged that Fredericks never made any direct comments about plaintiff's Italian heritage. (Id. at 478-79.)

On July 6, 2000, Arbitrator Janet McEneaney issued an award in which she determined that the Postal Service did not have just cause to issue the Notice of Removal for Charge #1, (violation of the Workplace Violence Policy). (Florio Decl., Ex. XX at 1.) By contrast, the Arbitrator found that the Postal Service did have just cause to issue the Notice of Removal for Charge #2 (falsification of his employment application). (Id.) The Arbitrator concluded, however, that termination was not warranted and converted plaintiff's termination into a suspension without pay beginning on June 15, 1999 and running through the date of his reinstatement. (Id. at 29-30.) As for reinstatement, the Arbitrator held that plaintiff was "to be returned to an assignment at his present level of grade and pay at a facility in Nassau County other than the facility to which he is presently assigned." (Id. at 32.) Further, the plaintiff was directed to enter an anger management and treatment program. (Id.)

As part of the award, Arbitrator McEneaney specifically stated: "[I]f the Grievant commits an act which is found to warrant termination or is convicted of another crime, then the Grievant's employment with the Service will be terminated immediately." (Id.)

Plaintiff's July 12, 2000 Request for EEO Pre-Complaint Counseling

On July 12, 2000 plaintiff sought EEO pre-complaint counseling with respect to claims that, inter alia, Brunone, Fredericks, and Jeffrey Smith, Manager of Labor Relations for the Long Island District, had conspired to discriminate against plaintiff because of his national origin and retaliate against him. (Florio Decl., Ex. F.)

Plaintiff's Employment at Hempstead

As a result of the July 6, 2000 arbitration decision, plaintiff was reinstated to a position at Hempstead on or about August 12, 2000. Defendant asserts that plaintiff retained the same work grade level and base pay rate as he had at Western Nassau (Def.'s 56.1 ¶ 207), although plaintiff contends that he was "forced to work in duties outside his work grade and job description." (Pl.'s 56.1 ¶ 208.) According to defendant, there was no mail processing equipment at Hempstead for the plaintiff to work on,*fn9 and so plaintiff performed a variety of maintenance duties on an "on call" basis, including repairing and replacing building fixtures, telephone lines, and mailboxes. (Def.'s 56.1 ¶ 220.) Plaintiff contends, however, that he was required to "do custodian work, throw out garbage, paint, do cement work, [and] run errands." (Pl.'s 56.1 ¶ 219.)

Plaintiff's Denial of Overtime and his November 2000 Request for EEO Pre-Complaint Counseling

Plaintiff alleges that at some point after his reinstatement, his overtime opportunities in Hempstead were eliminated. (Pl.'s 56.1 ¶ 208.) Defendant responds that when plaintiff was first assigned to Hempstead, his paycheck was still being charged to the Western Nassau payroll. (Def.'s 56.1 ¶ 209.) Although plaintiff received overtime assignments when he began working at Hempstead, at some point he was informed that his overtime requests were no longer authorized because "Western Nassau would not permit it." (Def.'s 56.1 ¶ 227.) Accordingly, plaintiff filed a request for EEO pre-complaint counseling on November 16, 2000, alleging that Brunone was behind Western Nassau's decision to deny his overtime opportunities and that Brunone "has been relentless in his pursuit to cause me harm." (Florio Decl., Ex. QQQ at 925.)

Plaintiff was officially transferred to Hempstead's payroll as of February 14, 2001. Defendant contends, without citation to evidentiary support, that "[o]nce plaintiff became part of Hempstead's payroll, he began to work overtime again." (Def.'s 56.1 ¶ 229.) Plaintiff disagrees and argues that he did not begin receiving overtime assignments again after he filed EEO Complaints in March 2001. (Pl.'s 56.1 ¶ 229.)

Plaintiff is Barred From Entering the Western Nassau Facility

Sometime in January or early February 2001, plaintiff went to Western Nassau to pick up certain equipment. While at the Western Nassau facility, plaintiff saw Jeffery Allen. Allen claims that plaintiff assaulted him and spilled a drink on his equipment. (Def.'s 56.1 ¶ 232.) Plaintiff denies that any such incident occurred. By letter dated February 6, 2001, plaintiff's supervisor Christine Cervasio informed plaintiff that he was no longer permitted to enter the Western Nassau facility for any reason. (Florio Decl., Ex. CCC.)

Plaintiff's March 9, 2001 Formal EEO Complaints of Discrimination

On March 9, 2001 plaintiff filed two formal EEO complaints of discrimination, which were consolidated by the Postal Service EEO. (Florio Decl., Ex. RRR.) Plaintiff alleged that he was discriminated against based upon his national origin and retaliated against for his prior EEO activity, as evidenced by, inter alia, the following: (1) the denial of overtime opportunities after his assignment to the Hempstead office, (2) management's failure to respond when a co-worker (presumably Allen) ...

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