United States District Court, E.D. New York
RUDY J. MARINACCI, Plaintiff,
UNITED STATES POSTAL SERVICE, PATRICK DONAHOE, AND MEGAN BRENNAN, Defendants.
MEMORANDUM OF DECISION AND ORDER
LASHANN DEARCY HALL, UNITED STATES DISTRICT JUDGE.
Plaintiff Rudy Marinacci brings the instant action under
Title VII of the Civil Rights Act of 1964 (“Title
VII”) and the Age Discrimination in Employment Act
(“ADEA”), alleging that Defendants United States
Postal Service (“USPS”), Patrick Donahoe, and
Megan Brennan (collectively, “Defendants”)
discriminated against him on the basis of age, gender,
religion, race, color, and national origin. Plaintiff also
brings claims of hostile work environment and retaliation.
Defendants move for summary judgment pursuant to Federal Rule
of Civil Procedure 56.
is a 59-year-old male born in 1957 who identifies as white,
Caucasian, Catholic, and American. (Defs.' 56.1 Statement
¶ 1, ECF No. 34-3.) During the time period relevant to
the instant action, Plaintiff was an employee of USPS.
(Id. ¶ 2.) In 2011, Plaintiff served as manager
of customer services at the Middle Village USPS station, with
a pay grade level designation of EAS-20. (Id.) Prior
to the events giving rise to this action, Plaintiff had filed
two formal Equal Employment Opportunity (“EEO”)
complaints with the USPS Equal Employment Opportunity Office
dated August 10, 2009, and February 18, 2011. (Id.
Plaintiff's Temporary Detail at the Forest Hills
20, 2011, USPS assigned Plaintiff to a temporary detail as
manager of customer services at the Forest Hills USPS
station. (Id. ¶ 5.) The temporary detail was
effected through a PS Form 1723 signed by Plaintiff's
supervisor Paul Stremel on May 20, 2011. (Id.) Under
the form's terms, Plaintiff was to serve on the temporary
detail from May 21, 2011, until November 15, 2011, with a pay
grade level designated EAS-22. (Id.) On May 20,
2011, Stremel also completed and executed an affidavit in
connection with Plaintiff's February 18, 2011 EEO
complaint. (Id. ¶¶ 6, 73-75.) Stremel is a
white, Caucasian, Catholic, American male born in 1975.
(Id. ¶ 44.)
June 1, 2011, until June 22, 2011, as the acting manager of
customer services at the Forest Hills station, Plaintiff
participated in staff telephonic conferences with other USPS
employees. (Id. ¶ 7.) These conferences were
referred to as “drill down” conferences, and
their purpose was to discuss the station's performance,
expectations, and action plans. (Id.) One of the
USPS employees involved in the drill down conferences was
Postmaster Edward Roggenkamp, who is a white, Caucasian,
Catholic, American male born in 1955. (Id.
¶¶ 7, 46.) During the drill down conferences,
Roggenkamp and the area manager would ask Plaintiff to
account for the employees that Plaintiff supervised.
(Id. ¶ 8.) They would also ask Plaintiff about
the performance of the Forest Hills station. (Id.
¶ 9.) Among other things, Plaintiff would report on
steps he took to correct any deficiencies at the station, as
well as carrier and clerical operations. (Id. ¶
10.) During the drill down conferences, no one mentioned or
referred to Plaintiff's race, color, age, gender,
religion, or national origin. (Id. ¶ 11.)
15, 2011, Plaintiff attended a “Function 4 staff
meeting” with Postmaster Roggenkamp and other managers
of customer services to review clerical staffing profiles for
USPS operations. (Id. ¶ 12.) Several days
before the Function 4 staff meeting, Plaintiff asked Stremel
to excuse him from the meeting because Plaintiff would not
have certain necessary data prepared in time. (Id.
¶ 13.) Stremel declined to excuse Plaintiff from the
meeting because Roggenkamp, not Stremel, had scheduled it.
(Id. ¶ 14.) Plaintiff subsequently provided
Roggenkamp with handwritten work product in response to
Roggenkamp's request for data. (Id. ¶ 15.)
At his deposition, Plaintiff testified that he believed that
Roggenkamp told Jennifer Leung, another manager of customer
services, that Plaintiff's work product was
“crap.” (Id. ¶ 16.) Plaintiff
further testified that he did not believe that Roggenkamp
made any reference to Plaintiff's race, color, age,
gender, religion, or national origin in connection with this
criticism. (Id. ¶ 17.)
subsequently met with Stremel and Roggenkamp on July 8, 2011,
at which time Roggenkamp expressed a number of concerns
regarding Plaintiff's performance during his temporary
detail at the Forest Hills station. (Id. ¶ 19.)
Roggenkamp noted that Plaintiff had permitted a lower-level
employee to stand in for Plaintiff as a representative of
USPS management at a meeting with the National Association of
Letter Carriers. (Id. ¶ 20.) In addition,
Roggenkamp noted that Plaintiff did not thoroughly
investigate an allegation of assault by another USPS
employee. (Id. ¶ 21.) Further, Roggenkamp
stated that he was concerned about Plaintiff's
representation that he would personally conduct surveillance
of a USPS employee who was on extended sick leave but was
alleged to be working a second job. (Id. ¶ 22.)
Roggenkamp also noted that Plaintiff had failed to follow a
Local Memorandum of Understanding for posting holiday
schedules, which could have resulted in monetary losses.
(Id. ¶ 23.) Roggenkamp also noted his concern
that letter carriers at the Forest Hills station had made
complaints of a hostile work environment caused by
management, which included Plaintiff. (Id. ¶
24.) Union representatives for those letter carriers had
informed Roggenkamp that there was a risk for workplace
violence at the Forest Hills station. (Id. ¶
25.) Based on these various concerns, on July 8, 2011,
Plaintiff was returned to his regular assignment at the
Middle Village station with his previous pay grade level of
EAS-20 four months earlier than scheduled. (Id.
Plaintiff's Denial of a Promotion to the Fresh Meadows
has specific policies that govern how applicants are selected
for particular jobs. USPS grants positions through
competitive and non-competitive processes. (Singh Decl. Ex.
T, at 4-5, ECF No. 36-1.) Pursuant to USPS policy,
competitive procedures are not required when an employee
voluntarily accepts a position at a lower level pursuant to
the noncompetitive process. (Id. at 4.) USPS policy
also states that a noncompetitive applicant may be selected
at any point before or during the competitive process.
(Id. at 5.) When a position is not filled through
noncompetitive procedures, then it is filled competitively.
19, 2011, Plaintiff applied through a competitive procedure
to be the Manager of Customer Services at the Fresh Meadows
USPS station, at a pay grade level of EAS-21. (Defs.'
56.1 Statement ¶ 18.) USPS ultimately gave the position
to Robert Botman on a noncompetitive basis. (Id.
¶¶ 27-28.) At the time, Botman was serving as
Manager of Customer Services at the Corona/Elmhurst station.
(Id. ¶ 27.) The Fresh Meadows position was a
downgrade for Botman, who had previously received a pay grade
level of EAS-22 at Corona/Elmhurst. (See id.)
USPS Investigates Complaints at the Forest Hills
August 3, 2011, at Roggenkamp's request and in response
to employee complaints of a hostile work environment, Mary
McGovern and Jose Diaz conducted interviews of the Forest
Hills station's employees. (Id. ¶ 30.)
McGovern and Diaz asked the employees if they were
experiencing issues of any kind with their management.
(Id. ¶ 31.) When these interviews concluded,
USPS did not take any employment action against Plaintiff.
(Id. ¶ 32.)
Plaintiff Requests a Temporary Modification in his
August 2011, Plaintiff requested a modification of his
schedule so that he could arrive at work and leave work
earlier than scheduled from August 8, 2011, until August 12,
2011. (Id. ¶ 33.) Stremel denied the request
and informed Plaintiff that he needed certain non-exempt
salaried employees like Plaintiff to be present during the
later hours of the day. (Id. ¶ 34; Singh Decl.
Ex. U., at 93:25-94:4, ECF No. 36-1.)
USPS Denies Plaintiff's Request to have Rudy Perez
Assigned Acting Supervisor
point in the summer of 2011, Plaintiff returned to his letter
carrier assignment from an acting supervisor detail.
(Defs.' 56.1 Statement ¶ 37.) Plaintiff requested
that Stremel assign Rudy Perez to be the new acting
supervisor. (Id. ¶ 40.) Instead, Stremel