KUO R. CHIANG, Plaintiff,
PATRICK R. DONAHOE, Postmaster General of the United States Postal Service, Defendant.
OPINION & ORDER
HAROLD BAER, Jr., District Judge.
Plaintiff Kuo Chiang brings this action for retaliation under Title VII, 42 U.S.C. § 2000e et seq. Defendant Patrick Donahoe moves for summary judgment. For the reasons stated below, Defendant's motion is GRANTED.
Plaintiff is a United States Postal Service ("USPS") driver based out of Gracie Station in Manhattan's Upper East Side. At the start of each workday, Plaintiff picks up his postal truck at FDR Station, thirty-two blocks south of Gracie Station. Plaintiff's typical daily assignment then involves delivering express mail in the morning, followed by delivering bags of mail to relay boxes along foot carriers' routes. Plaintiff is responsible for dropping mailbags at fifty to sixty relay stops along his assigned route. Usually, at the end of the day Plaintiff then returns his truck to FDR Station.
USPS pays Plaintiff by the hour. But Plaintiff earns time-and-a-half for any hours worked between eight and ten hours in one day. And if Plaintiff works beyond ten hours in a day, he receives additional "penalty overtime" at the rate of twice his normal hourly wage. USPS distributes overtime based on employees' positions on the Overtime Desired List ("ODL"). Employees list themselves on the ODL to signal that they are available for overtime assignments. The ODL is arranged by seniority and drivers are called in for overtime off the ODL on a rotating basis. And as required under the agreement between the National Association of Letter Carriers ("NALC") and USPS, USPS is to ensure that overtime is distributed "equitably." ( See Chiang Decl. ¶ 30 & Ex. G.)
In 2006, Plaintiff filed a race discrimination complaint against his employer with the Equal Employment Opportunity Commission ("EEOC"). While that complaint was eventually dismissed, a jury later found in August 2010 that Plaintiff had been retaliated against for complaining about race discrimination. And after this liability determination, USPS settled with Plaintiff for $185, 000 in October 2010.
Plaintiff now identifies multiple incidents that he argues were in retaliation for his successful lawsuit and for additional complaints to the EEOC following that lawsuit. As indicated below, many of Plaintiff's concerns arose nearly a year or more after the conclusion of his lawsuit in 2010. First, on the morning of May 28, 2011, Plaintiff requested one hour of annual leave to be taken that same day. This request was denied, purportedly because of a shortage of drivers on Memorial Day weekend. The record makes clear that this was an exception since all other leave requests after his lawsuit have been granted. Second, on July 11, 2011, Plaintiff was directed at the end of his tour to leave his truck at Gracie Station rather than return it to FDR Station. This deprived him of approximately thirty minutes of overtime-the time it would have taken to return the truck-and saved his ailing employer a few dollars. Nonetheless, like the denial of annual leave, this was the only time since his first lawsuit that Plaintiff was instructed not to return his truck to FDR Station. And in August 2012, Plaintiff filed a union grievance because an ineligible driver may have worked two hours of overtime on July 28, 2012. Plaintiff's supervisor claimed that the overtime records were mistaken, and deleted this overtime entry. As a result, Plaintiff received no compensation for these two hours.
In addition to these slights, Plaintiff points to other instances that he claims affected his overtime. In June 2011, Ladonna Hutchins, one of the foot carriers on Plaintiff's route, asked that Plaintiff not deliver mail to her relay boxes. According to Hutchins, she feared retaliation from Plaintiff for her trial testimony against him during Plaintiff's prior action. ( See Trexler Decl. Ex. K, at USPS 01208.) For example, at one of Hutchins's relays, Hutchins claimed that Plaintiff had previously dropped mail for her inside one of the buildings along her route. ( Id. ) But after the trial, Plaintiff refused to continue dropping Hutchins's mail inside that building. ( Id. ) And on June 13, 2011, USPS removed this relay drop from Plaintiff's route. This shortened Plaintiff's daily route by approximately 20 minutes, potentially affecting overtime opportunities. After Plaintiff complained, his supervisor suggested that reassignment of the relay be conditioned on Plaintiff agreeing to resume dropping mail inside the building. Plaintiff refused, citing security concerns. On October 1, 2011, he also wrote to his manager, James Warden, that he viewed the instruction as "[h]arassment and [d]iscrimination." (Chiang Decl. Ex. C.) Nevertheless, the relay was not reassigned to him.
Plaintiff also urges that he was inequitably assigned overtime in the first quarter of 2011. He points to the assignment of overtime to Chung Lu, another driver at Gracie Station. By Plaintiff's calculations, Lu worked nearly 57 hours of overtime over the first three months in 2011. (Chiang Decl. Ex. F.) Lu was not on the ODL list and therefore should not have been assigned overtime. But there is no evidence that Plaintiff complained about the assignment of overtime to Lu until this lawsuit. Instead, Plaintiff admits that he prepared information regarding Lu's inequitable overtime only following discovery. (Chiang Decl. ¶ 24.)
And on December 17, 2011, one of Plaintiff's supervisors, Mildred Brown, failed to notify Plaintiff of an eight-hour overtime assignment to be performed on December 19. Brown had testified against Plaintiff at his first trial. Because Plaintiff was unaware of the assignment, Plaintiff did not perform overtime that day. Plaintiff also points to seven hours of overtime that he was owed following a union grievance that was decided in his favor. Plaintiff filed that grievance on April 9, 2012 for overtime he should have earned in the fourth quarter of 2011. Two months later on June 1, 2012, the dispute resolution team determined that Plaintiff was entitled to seven hours of make-up overtime in the third quarter of 2012. But according to Plaintiff, USPS never offered those hours to him.
Plaintiff was also involved in a number of disputes with a fellow USPS driver, Harkeim Wray. First, on November 23, 2011 and again in January 2012, Wray and Plaintiff argued over the use of a wheeled palette, or skid, used to transport mail bags in Gracie Station. After the first conflict, a supervisor provided a second skid to Plaintiff. And after the second incident, management instructed Wray not to return to FDR station that day to avoid further confrontations. In December 2011, Wray also asked Plaintiff how much money he was planning to give his supervisor for Christmas. According to Plaintiff, Wray further commented that he did not care if Plaintiff complained about Wray's work habits or his use of Plaintiff's skid. Plaintiff took this conversation to imply that he should pay his supervisor for better treatment. But Plaintiff acknowledges that since the January 2012 incident, he has not had any other issues with Wray. (Pl.'s 56.1 ¶ 37.)
"A motion for summary judgment may be properly granted... only where there is no genuine issue of material fact to be tried, and the facts as to which there is no such issue warrant the entry of judgment for the moving party as a matter of law." Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010) (citing Fed.R.Civ.P. 56(c)(2)). In analyzing summary judgment, "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (citing Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55 (1990)).
At summary judgment, Title VII retaliation claims are subject to McDonnell Douglas 's "familiar burden-shifting approach." Kaytor, 609 F.3d at 552 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973)). To establish his prima facie case at McDonnell Douglas 's first stage, Plaintiff must show "(1) that [he] participated in an activity protected by Title VII, (2) that [his] participation was known to [his] employer, (3) that [his] employer thereafter subjected [him] to a materially adverse employment action, and (4) that there was a causal connection between the protected activity and the adverse employment action. Id. If Plaintiff establishes a prima facie case, the burden of production shifts to Defendant "to proffer a legitimate non-retaliatory reason for the adverse employment action." Id. at 552-53. To avoid summary judgment, Plaintiff then must point to evidence sufficient to permit an inference that retaliation was a but-for cause of the adverse employment action. See Brooks v. D.C. 9 Painters Union, No. 10 Civ. 7800, 2013 WL 3328044, at *4 ...