United States District Court, E.D. New York
Brian Porter, Plaintiff, Pro se, Jamaica, NY.
For John E. Potter, Postmaster General, United States Postal Service, Postmaster General Patrick R Donahue, United States Postal Service, Defendants: James R. Cho, LEAD ATTORNEY, United States Attorneys Office, Eastern District Of New York, Brooklyn, NY.
MEMORANDUM DECISION AND ORDER
Brian M. Cogan, U.S.D.J.
Plaintiff has brought at least five lawsuits and dozens of grievances against his employer, the United States Postal Service (" Postal Service" ), going back to at least 1992, which have triggered at least three appeals to the Circuit, and one remand after the appointment of pro bono counsel that required additional findings but still resulted in the dismissal of the case. Some of plaintiff's complaints have encompassed events that were clearly materially adverse, like loss of pay, although none of those have been found to have any merit. Most have been the paradigm of petty slights.
The instant case involves claims of retaliation for his most recent Equal Employment Opportunity Commission (" EEOC" ) complaint. His claims, as in the past, are without merit and neither individually nor collectively meet the standard for raising a fact issue that a jury could reasonably determine in plaintiff's favor. Defendant's motion for summary judgment is granted and plaintiff's is denied.
Plaintiff's latest amended complaint reasserts the predominant legal theory from one of his prior complaints, see Porter v. Potter, 366 F. App'x 195 (2d Cir. 2010), granting summary judgment on remand, No. 03-cv-6354, (E.D.N.Y. Feb. 4, 2011), which is to claim that the Postal Service retaliated against plaintiff for engaging in protected activity, i.e., the filing of internal and EEO complaints. The main difference is that the current lawsuit is brought solely as a retaliation claim
under Title VII (the prior one included retaliation claims under the Family and Medical Leave Act) and pertains to the time period subsequent to the allegations from the 2003 action. See Porter v. Donahoe, 484 F. App'x 589 (2d Cir. 2012) (affirming dismissal of plaintiff's claims under the Family and Medical Leave Act).
The fulcrum of the amended complaint here is a Notice of Removal (" Removal Notice" ), i.e., a termination notice, issued bye the Postal Service in December 22, 2007. The basis for the attempt to fire plaintiff was an impressive record of absenteeism and lateness. The Removal Notice itself was based on 16 absent or late to work days in the mere seven week period between October 10, 2007 and December 19, 2007. But in deciding to terminate him, the Postal Service took into account that plaintiff had 36 absent or late to work days between January 27, 2007 and March 31, 2007, which had resulted in a letter of warning, another 36 absent or late to work days between April 3, 2007 and June 2, 2007, for which he had been suspended for seven days, and another 31 absent or late to work days between July 16, 2007 and August 11, 2007, for which he had been suspended for two weeks.
Plaintiff, through his union, grieved the Removal Notice. The grievance process at the Postal Service is a multi-stage process that moves from conciliation to mediation and then, if unsuccessful, to arbitration. When the mediation here failed, the matter proceeded to arbitration. The Removal Notice had an effective date of February 6, 2008, and as the various steps of the grievance process played out, the Postal Service placed plaintiff on a non-pay status, subject to the outcome of the grievance process, beginning on the effective date of the Removal Notice.
The arbitration took place over a two-day period in November and December 2009, with the Arbitrator issuing his decision on December 19, 2009. He held that:
There was sufficient evidence to establish that the Postal Service had just cause to discipline the Grievant for his attendance related infractions. The Grievant's claim that he was entitled to protection under the Family Medical Leave Act [FMLA] for most of his absences is invalid because he had not worked sufficient hours to meet the FMLA qualifications. In addition, some of his absences were not related to family medical leave.
The Grievant's contention that he had been discriminated against and/or unfairly treated regarding his not being granted a change of work schedule is not supported due to the lack of any evidence that he had properly applied for such a change.
The union's argument that the Grievant had been treated differently than other employees in similar situations is not sustained due to the lack of sufficient evidence which would establish that the fact patterns and reasons for the resolution of those cases were the same as those involved in the Grievant's situation.
Nevertheless, although finding plaintiff " basically guilty as charged," the Arbitrator ruled that the Postal Service should have interviewed plaintiff before it issued the Removal Notice, instead of after, and that it should have considered whether there were other disciplinary options short of termination. The Arbitrator also found fault with the Postal Service's use of the same decision maker in the first two steps of the grievance process, logically concluding that this reduced the chances of a peaceful resolution. As a result, the Arbitrator ordered plaintiff's reinstatement but without any back-pay or benefits. In effect, this meant that the sanction approved
by the Arbitrator was a nearly two-year suspension without pay or benefits. Plaintiff returned to work on January 4, 2010, and as discussed below, he challenges this date as being ten days too late.
There was a further repercussion from this prolonged suspension. Although he was not receiving pay or paid benefits, plaintiff did not ask the Postal Service to suspend his health care benefits, and indeed plaintiff was aware that the Postal Service was continuing to pay the premiums for his health care and that he was not entitled to that benefit under the Arbitrator's decision. The record shows that the Postal Service does this for any employee on non-pay status up to 365 days. The Postal Service billed him periodically for the premiums during his suspension, which amounted to $599. Since he didn't pay the invoices, the Postal Service deducted the payments from his paycheck over three pay periods when he returned to work in early 2010.
That year did not see any improvement in the employment relationship. A number of events occurred, all of which plaintiff contends were in retaliation for his prior EEO complaints. First, in late January 2010, plaintiff and other employees were attending a safety lecture by a Postal Service Police Officer, and plaintiff started laughing at something that occurred on the other side of the room. The Police Officer told plaintiff not to disrupt her talk, and plaintiff asserts that he felt publicly humiliated. The Postal Service took no action concerning the incident, and plaintiff did not complain about it until this lawsuit. Nor is there evidence in the record that this particular Police Officer had any inkling of plaintiff's prior EEO complaints and contentious history with the Postal Service.
Next, on February 11, 2010, plaintiff requested administrative leave when he could not come to work due to blizzard conditions. The Postal Service had a policy of not granting administrative leave when a requesting employee had unused annual leave, as did plaintiff. This was a policy that the Postal Service had regularly applied to its employees, and the record confirms a number of identified employees who were treated the same way. However, the union filed a collective grievance for all of these employees, and the dispute over the policy was resolved retroactively.
Then, on February 19, 2010, plaintiff accessed a restricted area at the facility where he worked, even though, as he admitted in his deposition, he was aware of the Postal Service manual's prohibition on such access. He went there to deliver a letter complaining about deductions from his paycheck (possibly the recoupment of his health insurance premiums) to a Postal Service manager. This resulted in a one-day suspension without pay and confiscation of his employee badge. In addition, about a month later, a Postal Service Supervisor met with plaintiff to go over the incident and then issued a ...