Summary
finding that the plaintiff's allegations that he was publicly reprimanded, monitored by his employer, and denied lunch breaks do not constitute adverse employment actions
Summary of this case from Kim v. PotterOpinion
Civil Action No. 00-2076
December 12, 2003
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. RECOMMENDATION
For the reasons stated below, it is respectfully recommended that the Defendants' Motion for Summary Judgment (Doc. 45) be granted.
II. REPORT
BACKGROUND
A. Procedural History
Edward P. Mihalko ("the Plaintiff") is a forty-four year old postal carrier for the United States Postal Service ("the USPS"). See generally Compl. (Doc. 1), "Nature of the Action." He has held this position for over twenty years and currently works in the Canonsburg/McMurray Post Office ("the Post Office"). See id.
On October 2, 2000, the Plaintiff commenced this action against the USPS, the Postmaster General, and other various officers, supervisors, and managers at the Post Office (referred to collectively as "the Defendants") seeking relief for "employment discrimination based on age, disabilities, retaliation and harassment for engaging in protected acts, reverse discrimination based on sex, and related causes of action." See id.
The Complaint generally alleges that the Defendants have "engaged in unlawful employment practices" that violate a multitude of federal and state statutes, including: (1) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), see Count I, ¶ 13; (2) Section 504 of the Rehabilitation Act, 29 U.S.C. § 701, et seq. ("Section 504"), see Count I, ¶ 13; (3) the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("the ADEA"), see Count I, ¶ 13; and (4) the Pennsylvania Human Relations Act, 43 P.S. § 951, et seq. ("PHRA"), see Count II, ¶ 23. The Complaint also asserts that various individuals "aided and abetted" the alleged discrimination in violation of the PHRA. See Counts III IV. In addition, the Complaint alleges virtually every ancillary common law action that could conceivably apply. See Count V (alleging "prima facie tort, intentional infliction of emotional distress, tortious interference with Plaintiff's job, defamation, libel and slander, negligent hiring, negligent infliction of emotional distress, general negligence, breach of implied and express contracts, breach of implied duty of good faith and fair dealing, general negligence, and any other cause of action based on the facts of the case. . . ."). The Plaintiff seeks both legal and equitable relief, including punitive damages. See Compl. "Nature of the Action"; see also "Wherefore" clauses.
On September 17, 2001, the District Court issued a Memorandum Order dismissing the Plaintiff's claims under the PHRA and state common law. See generally Memorandum Order (Doc. 17). Accordingly, it also dismissed the aiding and abetting claims against the various individuals. See id. In addition, the request for punitive damages was dismissed. See id.
Now pending before the court is the Defendants' Motion for Summary Judgment ("the Defendants' Motion"), which was filed on May 7, 2003. See Mot. for Summ. J. (Doc. 45). On that date, the Defendants also filed a supporting memorandum, s ee Defs.' Mem. of Law in Supp. of Defs.' Mot. for Summ. J. (Doc. 60; hereinafter cited as "Defs.' Br."), and various exhibits, see Exs. to Defs.' Mem. of Law in Supp. Of Defs.' Mot. for Summ. J. (Doc. 61; hereinafter cited as "Defs.' Exs."). On October 29, 2003, the Plaintiff replied with several submissions to the court: (1) a response to the Defendants' Motion, see Pl.'s Resp. to Def.'s Mot. For Summ. J. (Doc. 56; hereinafter "Pl.'s Resp."); (2) a supporting brief, see Br. in Supp. of Pl.'s Resp. to Def.'s Motion for Summ. J. (Doc. 57; hereinafter cited as "Pl.'s Br."); (3) an "Answer to Defendant's Statement of Material Facts," see Answer to Def.'s Statement of Material Facts (Doc. 58; hereinafter cited as "Pl.'s Facts"); and (4) exhibits, see Exs. to Pl.'s Answers to Defs.' Statement of Material Facts and Br. in Supp. of Pl.'s Resp. To Defs.' Mot. for Summ. J. (Doc. 59; hereinafter cited as "Pl.'s Exs."). The briefing has come to a close, and the Defendants' Motion is now ripe for adjudication.
The inconsistency in the references to the Defendants in both the singular and plural is taken from the Plaintiff's documents.
B. The Plaintiff's Claims
The undersigned will not rehearse at length the facts underlying the Plaintiff's various causes of action here, but instead will elaborate upon them as necessary in regard to each of the Plaintiff's specific claims in the analysis below.
The Plaintiff generally asserts that "[f]rom approximately June, 1998 through March, 2000, [the Plaintiff] was harassed and discriminated against based on his age, disabilities, and gender and he also endured retaliation for engaging in protected acts. All of these actions were part of an overall scheme of continuous and ongoing pattern of discrimination, harassment, and a hostile work environment." See Pl.'s Resp. at unnumbered pg. 1.
The Defendants' alleged discriminatory conduct during this time period includes, inter alia: systematically denying the Plaintiff overtime; extending the Plaintiff's postal route without compensation; frequently "casing" the Plaintiff's route; denying the Plaintiff leave; monitoring and constantly reprimanding the Plaintiff in regard to his work performance; refusing to allow the Plaintiff to take breaks or eat lunch at his home; repeatedly issuing warnings that finally resulted in the issuance of a letter of suspension; forcing the Plaintiff to work in an unheated room; requesting the Plaintiff to do work outside his physical limitations; ordering other employees not to speak to the Plaintiff; ordering him to "shut up" and sit down for saying "hello" to another employee; and harassing him over reporting problems with postal vehicles. See generally Pl.'s B.R. at unnumbered pgs. 4-12.
While the Plaintiff has not paginated its briefing, the undersigned will nonetheless reference specific pages in the analysis that follows.
On January 3, 2000, the Plaintiff filed a Complaint with the EEOC based on many of the allegations listed above. See id. at 10. On January 14, 2000, the Plaintiff sustained a back injury as a result of an on-the-job accident. See id. at 7. In addition, the Plaintiff allegedly suffered ongoing depression, which "was a manifestation of the harassment and hostile work environment he sustained on a daily basis." See id. at 8.
As a threshold matter, the undersigned notes that the Plaintiff's Complaint, in large part, fails to articulate distinct theories of discrimination — that is, the Plaintiff does not clearly link specific instances of the Defendants' conduct to particular causes of action. The Plaintiff's subsequent submissions to the court, e.g., the Plaintiff's briefing and deposition testimony, provide little clarification. Instead, these submissions appear to simply set forth a host of grievances, and then, with each successive claim, re-characterize roughly the same facts — and the same evidence — to support it.
Nonetheless, based on the headers and organization of the parties' briefing, the court is able to identify four discrete theories of discrimination:
1. Disparate treatment based on the Plaintiff's age and gender;
2. Disability discrimination based on the Defendants' alleged failure to accommodate the Plaintiff's purported disabilities;
3. Retaliation based on the Plaintiff's protected activity of filing his EEOC complaint; and
4. Hostile work environment based on the Plaintiff's age.
Each of these claims will be addressed in turn in the analysis below.
C. Legal Standard
Summary judgment is appropriate "if 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." See Fed.R.Civ.P. 56(c). An issue is "`genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it might affect the outcome of the suit under governing law. See id.
The party seeking summary judgment always bears the initial responsibility of informing the district court of the basis of its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the movant's initial Celotex burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case." See id. at 325.
After the moving party has met its initial burden, "the adverse party's response, by affidavits or otherwise as provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." See Fed.R.Civ.P. 56(e). That is, summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." See Celotex, 477 U.S. at 322. "[I]f the opponent [of summary judgment] has exceeded the `mere scintilla' [of evidence] threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent." See Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the opposing party. See Anderson, 477 U.S. at 255 (citation omitted).
The court need not address the parties' arguments relating to whether certain claims are time-barred. See, e.g., Defs.' Br. at 11-23; Pl.'s Br. at 2-3. The undersigned has reviewed all of the claims reasonably raised by the Plaintiff's submissions, and for the reasons below, concluded that they all must be dismissed. The issue, therefore, is moot. Nonetheless, were the court to reach that issue, it is appears that when viewing the facts in the light most favorable to the Plaintiff, the continuing violation doctrine would likely apply.
1. The Plaintiff Has Failed To Proffer Sufficient Evidence to Support a Prima Facie Case of Age or Reverse Gender Discrimination.
When evaluating employment discrimination claims based on indirect evidence, as here, the United States Court of Appeals for the Third Circuit ("the Third Circuit") applies a "slightly modified version" of the three-step burden shifting analysis outlined by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny. See, e.g., Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) (en banc). These legal standards are the same regardless of whether the claims are based on age discrimination or reverse gender discrimination. See, e.g, Connors v. Chysler Fin. Corp., 160 F.3d 971, 974-75 (3d Cir. 1998) (applying the McDonnell Douglas standard to age discrimination claims under the ADEA); Iadimarco v. Runyun, 190 F.3d 151, 157-58 (3d Cir. 1999) (applying the McDonnell Douglas standard to reverse discrimination claims under Title VII). For the purposes of the Defendants' Motion, therefore, the undersigned can address the Plaintiff's disparate treatment claims in one unified analysis.
The undersigned presumes based on the Plaintiff's briefing that it does not intend to prove discrimination directly, but instead relies solely on circumstantial evidence. See, e.g., Pl.'s Br. at 3-4 (outlining legal standard for age discrimination based on indirect evidence); id. at 9 (stating "[w]hile Mr. Mihalko does not have direct evidence regarding his claim of gender discrimination, there is circumstantial evidence to back up his claim.").
Under the McDonnell Douglas framework, "the plaintiff bears the initial burden of establishing a prima facie case of discrimination." See Fallon v. Meissner, 66 Fed.Appx. 348, 350-51 (3d Cir. April 30, 2003) (citation omitted). The burden then shifts to the employer to present "a legitimate, non-discriminatory reason for the complained-of action." See id. at 351 (citation omitted). Once the defendant does this, "the plaintiff has the opportunity to prove by a preponderance of the evidence that the defendant's articulated reason is merely pretextual, and the true reason for [the defendant's conduct] was discrimination." See Medcalf v. The Trs. of Univ. of Pa., 71 Fed.Appx. 924, 927 (3d Cir. July 30, 2003) (citation omitted). As the Plaintiff has failed to set forth an adequate basis for its prima facie case, discussed below, the court need not reach the second and third step of the analysis.
To establish a prima facie case of discrimination — whether based on age or gender — the plaintiff must show that: 1) he is in a protected class, i.e., over 40 and male; 2) he is qualified for the position; 3) he suffered an adverse employment action; and 4) the adverse action occurred under circumstances giving rise to an inference of unlawful discrimination. See, e.g., Mosberger v. CPG Nutrients, 2002 WL 31477292, *4 (W.D. Pa. Sept. 6, 2002) (listing elements above in age discrimination case under the ADEA, citing inter alia Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167 (3d Cir. 2001)); Diante v. Henderson, 2000 WL 250225, *6 (E.D. Pa. March 2, 2000) (outlining same elements in reverse-gender discrimination case under Title VII, citing Jones v. Sch. Dist. of Philadelphia, 198 F.3d 403, 411 (3d Cir. 1999)).
The Third Circuit has noted that there is no mechanical formulation of a prima facie case, but instead the requirements may vary with "differing factual situations." See Matczak v. Frankford Candy Chocolate Co., 136 F.3d 933, 938 (3d Cir. 1997). Although the plaintiff's burden is not intended to be "onerous," the plaintiff must nonetheless present "sufficient [evidence as] to convince a reasonable factfinder to find all of the elements of a prima facie case." See Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Keller, 130 F.3d at 1108. "Demonstrating only a mere possibility of discrimination will not suffice." See Morris v. G.E. Financial Assurance Holdings, 2001 WL 1558039, *5 (E.D. Pa. Dec. 3, 2001) (citation omitted).
As the Defendants concede, the Plaintiff has met its burden of production in regard to the first two elements of his prima facie case. See Defs.' Br. at 26 ("It is conceded that Mihalko is over 40 years of age and that his lengthy history with the post office satisfies the first two elements"); see generally id. at 42-46 (noting that the Plaintiff is "male"). Thus, the District Court may limit its analysis to the third and fourth elements of the Plaintiff's prima facie case.
The Plaintiff's discrimination claims are based on the following allegations:
• Denial of Annual and Family Leave: The Plaintiff contends that he requested and was denied leave on several important occasions. See Pl.'s Br. at 4. For example, he was denied leave to: 1) attend his daughter's graduation; 2) visit his son who was in the hospital; 3) attend a wedding; and 4) attend a "family intervention at the hospital regarding his father's terminal health." See id.; see also Dep. Excerpts of Edward Mihalko (attached as Ex. A. to Pl.'s Exs.; hereinafter cited as "Mihalko Dep.") at 59-60.
• Loss of Overtime: The Plaintiff argues that the he was "systematically denied overtime by management within the postal service." See Pl.'s Br. at 5; see also Pl.'s Facts at ¶¶ 19, 21, 22. In fact, according to the Plaintiff's brief, he was "repeatly denied overtime at a rate no other carriers experienced." See Pl.'s Br. at 5. He claims that the denial of overtime was in part due to the extension of his street times and the frequent "casing" of his route, discussed below.
• Extended Street Time and Casing: The Plaintiff argues that both he and other older employees were given increasingly longer postal routes, and that "management insisted that they finish within the time allotted and denied overtime to older employees when they did not finish their routes within the allotted time." See id. In addition, the Plaintiff claims his route was frequently "cased" by another carrier, which further prevented his access to overtime. Casing is the process of sorting and organizing mail usually done by the carrier, which allows the carrier to collect more overtime hours. See id. at 6. The Plaintiff claims that the management at the postal service would have a part-time flexible carrier "case" his mail, thus denying him the opportunity to collect overtime. See id. at 6; see also Dep. Excerpts of Dennis Luisi (attached as Ex. C. To Pl.'s Exs; hereinafter cited as "Luisi Dep.") at 22-23.
• Letters of Warning and Suspension: The Plaintiff was allegedly "issued a suspension letter on January 25, 2000 for unauthorized expansion of street time." See id. In addition, according to his deposition testimony, he received dozens of letters of warning and was suspended on two other occasions. See Mihalko Dep. at 69.
• Public Reprimands: In addition, he claims he was reprimanded for reporting a faulty horn on one of the postal vehicles and was "degraded by postal management through disciplining and reprimanding of the Plaintiff in front of other postal employees." See Pl.'s Facts ¶ 5.
• Monitoring the Plaintiff and Denying Him Lunch and Bathroom Breaks: The Plaintiff claims that his routes were monitored, and "if [he] went one minute beyond [the] time [allotted], [he] was questioned." See Mihalko Dep. at 86; see also Pl.'s Br. at 4. Further, he alleges that he was not allowed to stop at his home while on route to eat lunch, take breaks, or go to the bathroom. See Mihalko Dep. at 55.
The Plaintiff's various submissions to the court are replete with dozens of alleged acts of discrimination that, in the opinion of the undersigned, are no more than petty grievances, and simply do not amount to actionable discrimination in any meaningful way. Due to sheer impossibility of addressing every single alleged hardship that the Plaintiff has ever incurred over the course of his employment, or of examining every conceivable claim the Plaintiff could potentially have, the court will, for the most part, limit its discussion to the claims outlined in the Plaintiff's briefing and Complaint.
The Defendants first argue that many of the allegations upon which the Plaintiff has based his discrimination claims do not rise to the level of "adverse employment actions." See Defs.' Br. at 26-27, 32. The undersigned agrees. The United States Supreme Court has defined an adverse employment action as "[a] tangible employment action [that] constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits . . .[and] in most cases inflicts direct economic harm."Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761-62 (1998); see also McLaughlin v. Commonwealth of Pa., 1999 WL 58658, *4 (E.D. Pa. Jan. 25, 1999) (reciting same definition). Under the relevant case law, the Plaintiff's allegations that he was denied annual and family leave, publicly reprimanded, monitored by his employer, and denied lunch breaks — even when construed in the most favorable light to the Plaintiff — simply do not constitute adverse employment actions. As the third prong of a prima facie case has not been fulfilled in regard to these claims, they must be dismissed.
See, e.g., Cabral v. Philadelphia Coca Cola Bottling Co., 2003 WL 1421297, *7 (E.D. Pa. March 18, 2003) ("[D]enial of leave . . . is not a significant change in employee status and benefits, and does not represent and adverse employment action.") (citation omitted); King v. City of Philadelphia, 2002 WL 1277329, *15 (holding that denial of "sick leave and vacation time," even where the plaintiff claimed that rules were enforced more strictly against him, "[d]id not constitute adverse employment actions").
See, e.g., McLaughlin, 1999 WL 58658 at *4 (unsubstantiated oral reprimands and unnecessary derogatory comments do not rise to the level of adverse employment actions) (citingRobinson v. City of Pittsburgh, 120 F.3d 1286, 1330 (3d Cir. 1997)); Miller v. Cohen, 52 F. Supp.2d 389, 397-98 (M.D. Pa. 1998) (reprimanding and counseling the plaintiff for "telephone usage, leave usage, and tardiness at work [do not] amount to adverse employment actions") (citation omitted); Simmerman v. Hardee's Food Sys., Inc., 1996 WL 131948, *14 (E.D. Pa. 1996) (constant criticism and counseling from supervisors did not constitute an adverse employment actions) (citations omitted)
See, e.g., Boykins v. Lucent Tech., Inc., 78 F. Supp.2d 402, 414 (E.D. Pa. 2000) ("[S]imply being observed at work, without more, does not rise to the level of an adverse employment action.") (citations omitted); McCoy v. Macon Water Auth., 966 F. Supp. 1209, 1221 (M.D. Ga. 1997) ("It is not harassment for supervisors to monitor the performance of their employees. . . .").
See, e.g, Sexton v. Runyon, 1997 WL 704910, *4 (N.D. Ill. Nov. 10 1997) (stating that plaintiff's purported denial of lunch breaks was "[s]uch an insignificant limitation [that it] hardly [rose] to the level of an adverse employment action.")
As the Plaintiff's reverse gender discrimination claims appear to focus entirely on the alleged denial of leave, see Pl.'s Br. at 9, the court's analysis in regard to those claims ends here. Thus, what remain are the Plaintiff's age discrimination claims, which are discussed below.
The remaining question is whether the Plaintiff's alleged denial of overtime, extended street times, frequent casing, and letters of warning and suspension "occurred under circumstances giving rise to an inference of unlawful discrimination [based on the Plaintiff's age]." See fourth element of a prima facie case, supra, at 10. The "common circumstance giving rise to an inference of unlawful discrimination [is] the more favorable treatment of similarly situated colleagues outside the relevant class." See, e.g.,Morris, 2001 WL 1558039 at *5 (emphasis added; citation omitted); see also, e.g., Garcia v. Matthews, 66 Fed.Appx. 339, 343 (3d Cir. April 25, 2003) ("[A] prima facie case requires that the plaintiff show . . . that similarly situated non-members of [the plaintiff's] class were treated more favorably.") (citations omitted).
The crux of the Plaintiff's discrimination claim based on the denial of overtime is that three younger employees — Lynn Jones, Rob Coyle, and Jamie Leaper — were given more overtime than the Plaintiff. See Mihalko Dep. at 63. The Defendants, in turn, argue that these employees were not similarly situated; thus, even if they were given preferential treatment, these comparisons cannot serve as the basis of the Plaintiff's prima facie case. See Defs.' Br. at 27. The Defendants are correct.
The Defendants' argument is, in fact, two-fold: first, they claim that employees with whom the Plaintiff has compared himself are not similarly situated; and second, even assuming they were, overtime records reveals that the Plaintiff received more overtime than those particular employees in 1999, and in 2000, it was the fact that the Plaintiff was on sick leave from January through March which prevented him from receiving more overtime. See generally id. at 29-31. The parties dispute the later point, that is, the respective amount of overtime given to various employees during each of these years. Compare id. with Pl.'s Br. at 5. The court need not reach the parties' factual dispute, however, because as discussed below, the undersigned concludes that the Plaintiff has failed to identify any similarly situated younger employees who received more favorable treatment in regard to overtime.
In order for employees to be deemed "similarly situated," the Plaintiff must show that "the individuals with whom the plaintiff seeks to compare [his] treatment must have dealt with the same supervisor, have been subject to the same standards[,] and have engaged in the same conduct without such differentiating of mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." See Morris, 2001 WL 1558039 at *6. (citations and internal quotations omitted); see also Bullock v. Children's Hospital of Philadelphia, 71 F. Supp.2d 482, 489 (E.D. Pa. 1999) (stating same). The Defendants argue, and the Plaintiff does not refute, that Lynn Jones and Rob Coyle were "T-6" carriers. See Defs.' Br. at 31. According to the Defendants' brief, T-6 carriers are special "carriers who are the relief person [sic] for a number of routes on a continual basis, maybe 5, which provides more overtime opportunities pursuant to the collective bargaining agreement. These positions carry more responsibility." See id. Jamie Leaper was a "part-time flexible" carrier, who "could neither sign up for overtime nor be guaranteed any overtime opportunities, unlike the Plaintiff." See id. at 29, 63. As a T-6 carrier and a part-time employee are not "subject to the same standards" as an ordinary carrier in the Plaintiff's position, this difference in status clearly constitutes a "mitigating" factor that would warrant different treatment. Nor has the Plaintiff demonstrated otherwise. In sum, the Plaintiff's comparison to those employees is simply insufficient to make out a prima facie case in regard to his denial of overtime claim. See, e.g., Morris, 2001 WL 1558039 at *6 ("It is not an act of discrimination to take into account the different positions of two individuals.") (citations omitted).
The only evidence left to support this claim, therefore, is the host of unsupported, conclusory assertions contained in the Plaintiff's own deposition and brief. See, e.g., Mihalko Dep. at 62 (stating that during one quarter in 2001, "certain people would have five, six days of overtime, I'd have zero."); Pl.'s Br. at 5 ("Mr. Mihalko was repeatedly denied overtime at a rate that no other carriers experienced."). Unfortunate if true, these musings are simply not enough to avoid summary judgment. See Solomon v. Soc'y of Auto. Eng'rs, 41 Fed.Appx. 585, 586 (3d Cir. July 30, 2002) (affirming district court's rejection of claims based solely on the plaintiff's own testimony, stating "a plaintiff cannot rely on unsupported assertions, speculation, or conclusory allegations to avoid a motion for summary judgment.") (citing Celotex Corp v. Catrett, 477 U.S. 317, 324 (1986)); see also Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 252 (3d Cir. 1999) (holding same). For these reasons, the Plaintiff's claim of discrimination based on the denial of overtime must be dismissed.
The Plaintiff's allegations that he and other older employees were forced to complete their extended routes in a timely manner without being given overtime fail for largely the same reasons. See generally Pl.'s Br. at 5. As the Defendants correctly point out, the Plaintiff has again failed to show that similarly situated younger employees were treated more favorably, or to present any other evidence that would give rise to an inference of illegal discrimination. See Defs.' Br. at 32-34. For the following reasons, the undersigned agrees.
First, the Plaintiff has not presented evidence demonstrating that it was only older employees that were given extended routes, or conversely, that younger carriers were given shorter ones. In fact, the Plaintiff's own submissions suggest the allocation of routes was purely fortuitous. See, e.g., Dep. Excerpts of Michael Vetri (attached as Ex. B to Pl.'s Exs.; hereinafter cited as "Pl.'s Vetri Dep.") at 8 (stating that after the postal service's "territorial switch" that "[s]ome guys ended up with routes that were okay and other guys ended up with routes that were ridiculous size-wise"). The sole fact that the Plaintiff was among those who received a longer route in itself is not sufficient to withstand a motion for summary judgment. At best, the Plaintiff's evidence shows "only a mere possibility of discrimination." See Morris, 2001 WL 1558039 at *5 (citation omitted).
Second, the record makes clear that the management's expectation that routes be completed on in a timely fashion without the use of overtime was applied to all employees, not just older ones. See, e.g., Dep. Excerpts of Patrick Yurchak (attached as Ex. L to Defs.' Exs.) at 32 ("[The postal service management] always want[ed] you to work faster. They want[ed] all of us to work faster. Every person in that office will say that comment [ i.e. instructions to work faster] was made to them, even the fastest people we have."); Dep. Excerpts of Michael Vetri (attached as Ex. K to Defs.' Exs.; hereinafter cited as "Defs.' Vetri Dep.") at 24 (stating that he believed that younger employees were not treated more favorably, but merely that younger employees were "doing the job faster.") The Defendants' submissions further indicates that younger employees were subjected to the same "harassment" about completing their work on time. See, e.g., Defs.' Veltri Dep. at 13 ("[The management] would harass some of the younger [employees] only because they would come in and didn't know a route and she would ex[p]ec[t] them to do the route as fast or faster than the regular carriers did it in."). The Plaintiff's only rubuttal is its own bald assertion that the older employees were somehow held to a higher standard than younger employees, see Pl.'s Br. at 5 — an assertion which simply has no evidentiary basis. Thus, the Plaintiff's claims regarding the extension of street times should be dismissed. See Ridgewood, 172 F.3d at 252 (a plaintiff cannot rely on speculation and conclusory allegations to avoid a motion for summary judgment).
The Plaintiff's claim that his route was frequently cased is equally unavailing. See, e.g., Pl.'s Br. at 6. First, the only evidence presented to the court in this regard is "unverifiable, anectodal" testimony from two of his co-workers that the Plaintiff's route was cased more heavily. See Pl.'s Veltri Dep. at 20; Luisi Dep. at 22-23. This evidence is insufficient to survive summary judgment. See, e.g., Bogle v. Orange County Bd. of County Comm'rs, 162 F.3d 653, 658-59 (11th Cir. 1998) (finding that plaintiff's evidence consisting of "unverifiable, anecdotal testimony from his co-workers and from his own experience of isolated incidents and of [the defendant's] alleged disciplinary response could not support a reasonable jury finding [of discrimination]"). Even taking the Plaintiff's contentions as true, the claim still fails. If, in fact, the Plaintiff was the only carrier whose mail was cased, it necessarily follows that older, as well as younger, carriers were receiving more favorable treatment. Therefore, it would be impossible to draw an inference of unlawful discrimination from this fact alone. At best, it shows only a "mere possibility of discrimination," which as stated above, is not enough to avoid summary judgment. See Morris, 2001 WL 1558039 at *5 (citation omitted).
In addition, the co-workers' testimony stands out in stark contrast to the Plaintiff's own deposition testimony, where he maintained that he was, in fact, unable to case the large volume of mail that he was given after the routes had been redistributed. See, e.g., Mihalko Dep. at 45 ("[Casing mail personally in conjunction with the new route] was an impossible feat because the mail volume increased so greatly.").
In regard to the Plaintiff's claims regarding letters of warning and suspension, the Defendants contend that the Plaintiff "fail[ed] to show that his age was a main factor" in the disciplinary actions against the Plaintiff, and that "[f]or this reason, he has failed to show a prima facie case." See Defs.' Br. at 34. The Plaintiff, in response, merely rehashes the same allegations that he was unable to complete his route within the set times. See Pl.'s Br. at 6. The Plaintiff then proceeds to string cite various portions of the record, which upon careful examination, simply have no bearing on, or relevance to, these claims. See Pl.'s Br. at 6 (citing "Exhibit A, pp. 43-46, 53-54, 61-65; Ex. B pp. 20-22, Ex. C pp. 18-25, 36-38, 75-76, 81; R.St.M.F. at para 26, 27"). As the Plaintiff failed to point out any specific evidence in the record demonstrating that these sanctions were related to the Plaintiff's age — e.g. by showing that similarly situated younger employees were not sanctioned for the same conduct or otherwise — these claims must fail because the Plaintiff has simply not met itsCelotex burden. See Celotex, 477 U.S. at 325 (After the moving party has "point[ed] out . . . an absence of evidence to support the non-moving party's case," the adverse party must set forth specific facts showing that there is a genuine issue for trial).[15]
In fact, of the twenty eight pages of deposition testimony cited only two pages appear to make explicit reference to the Plaintiff's sanctions. See Luisi Dep. at 37-38. To the extent that this evidence has any relevance, it in fact weighs against the Plaintiff's case. For example, Michael Veltri's testimony suggests that it was the Plaintiff's own conduct, not discriminatory acts on the part of the management, that led to the Plaintiff's failure to complete his route on time. See, e.g., Pl.'s Veltri Dep. at 21-22 (stating when faced with extended routes and short deadlines "[y]ou go out and either skip your lunches or skip your lunch and skip your breaks if you're going to try to even get back on time. [The Plaintiff] wasn't the kind of guy though that would skip lunches or skip breaks.").
In conclusion, the Plaintiff has failed to proffer sufficient evidence to state a prima facie case of age or reverse-gender discrimination. For the reasons stated above, the Defendants' Motion should be granted.
Parenthetically, even if the Plaintiff had been able to support a prima facie case, the Plaintiff's claims would still lose on summary judgment, as Defendants' submissions outline extensively "legitimate, non-discriminatory reason for the complained-of action[s]" discussed above. See, e.g., Defs.' Br. at 27-29 (discussing basis for allocating overtime); id. at 32-33 (discussing extended street times); id. at 34-37 (discussing reasons for sanctioning the Plaintiff). The Plaintiff failed to meaningfully show "weaknesses, implausibilities, inconsistencies, incoherencies or contradictions" such that the factfinder could rationally find them to be a pretext for discriminatory conduct. See, e.g., Rand v. Mannesmann Rexroth Corp., 2002 WL 550396, *4 (E.D. Pa. April 15, 2002) (citations to Third Circuit omitted). Thus, the Defendants' non-discriminatory reasons, therefore, serves as an alternate basis for dismissal.
2. The Plaintiff Has Failed To State a Prima Facie Case of Disability Discrimination under Section 504 of the Rehabilitation Act.
The Plaintiff's disability discrimination claims are based on two sets of alleged disabilities, as follows.
The Plaintiff's first alleged "disability" arose out of an on-the-job accident on January 14, 2000, in which he slipped on a postal ramp and sustained a "back and soft tissue injury." See Pl.'s Br. at 7; Pl.'s Facts ¶ 30; Defs.' Br. at 39. Although the Post Office's contract physician examined the Plaintiff and "cleared [him] for duty," see Defs.' Br. at 40, the Plaintiff continued "having back pains and headaches." See Pl.'s Br. at 7. The Plaintiff left work early that day and called in sick the following day. See id. According to the Plaintiff, even though he "did not have medical documentation at that time stating he could not work, he knew the physical status of his own body and wished to prevent any further injury." See id. at 7-8. He was not compensated for either day, and was denied sick leave. See id.
The Plaintiff alleges that he was later examined by Dr. Vincent Petraglia, his own physician, who recommended that the Plaintiff lift no more than five pounds. See id. at 8; Mihalko Dep. at 73-75. The Plaintiff also allegedly had difficulties "bending, twisting, and stooping." See Pl.'s Br. at 8; Mihalko Dep. at 73-75. Accordingly, during the following three months, the Plaintiff was placed on "light duty," which entailed performing administrative tasks within the post office. See Mihalko Dep. at 71-73. Nonetheless, the Plaintiff alleges that during this time, the management at the post office "pushed [him] to the max, to the limit." See Mihalko Dep. at 72. For example, "he was forced to sit in an unheated storage room for extended periods of time and asked to perform duties outside his physical limitations[, including being] told to get on his hands and knees and tray up the heavy sales papers for each carrier." See Pl.'s Br. at 8.
The Plaintiff has not submitted any documentation verifying this recommendation. As an example, he could have submitted an affidavit from Dr. Petraglia or a copy of the records relating to the treatment of his alleged disability; instead the Plaintiff proffers only his own deposition testimony to support this fact.
Following his three month of light duty, the Plaintiff took three more months off of work, and resumed his regular duties in July of 2000. See Mihalko Dep. at 70.
The Plaintiff's second claim is that the Defendants failed to accommodate his ongoing depression that began in March 2000, which was allegedly a product of being "continuously harassed by management and prevented from performing his limited work duties when management was aware of his fragile mental condition." See id. The Plaintiff cites as examples of the "management's behavior": 1) "forcing [the Plaintiff] to be isolated in a storage room that was not properly heated"; 2) ordering him to do work "outside his light duty limitations and placing him in embarrassing scenarios"; 3) ordering other employees not to speak to him; 4) being told to "shut up and sit in the office for a half an hour for saying `hello' to someone"; 4) harassing him over reporting postal vehicle problems. See id.
The Defendants argue that the Plaintiff's allegations, even if taken as true, "fall well short of meeting the elements of a prima facie case." See Defs.' Br. at 38. For the reasons stated below, the undersigned agrees.
To make out a prima facie case of discrimination under the Rehabilitation Act ("the Act"), the employee bears the burden of demonstrating: 1) that he had a disability; 2) that he was otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and 3) that he was nonetheless terminated or otherwise prevented from performing the job. Donahue v. Consol. Rail Corp., 224 F.3d 226, 229 (3d Cir. 2000) (citingShirling v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996)).
The Plaintiff does not clearly articulate the specific theory upon which his disability discrimination claims are based; that is, whether his claims are based on the failure to reasonably accommodate his purported disabilities or based on disparate treatment because of his disabilities. While the Complaint seems to alleged both, see Compl. ¶¶ 14, 15, the Plaintiff's briefing seems to rely solely on Defendants' failure to make reasonable accommodations. As the Plaintiff only refers to the legal standard set forth in Shirling, 90 F.3d at 831, a reasonable accommodations case — which is, in fact, the only case cited in its entire discussion — the undersigned presumes that this is basis for his claim. Nonetheless, because the court concludes that the Plaintiff has failed to show that he is "disabled" within the meaning of the Rehabilitation Act, it is not necessary to reach this issue.
The Defendants' primary argument is that the Plaintiff has failed to show that he was "disabled" within the meaning of the Act. See Defs.' Br. at 39. To be considered disabled under the Act, the Plaintiff must produce evidence demonstrating that he "has a physical or mental impairment which substantially limits one or more of such person's major life activities." See McDonald v. Commwealth of Pa. Dep't of Public Welfare, Polk Ctr., 62 F.3d 92, 95 (3d Cir. 1995) (citation to provisions of Rehabilitation Act omitted).
To be sure, a Plaintiff may also show that he is disabled in two other ways as well, i.e. where (1) "he has a record of such impairment; or [(2)] is regarded as having such an impairment." See, e.g.,Cade v. Consolidated Rail Corp., 2002 WL 922150, *6 (E.D. Pa. 2002) (citations to Rehabilitation Act omitted). The Plaintiff, however, has neither invoked these provision, nor made arguments suggesting that they apply. Therefore, the court will limit its analysis to the standard cited above.
In regard to the Plaintiff's on-the-job injury, the Defendants maintain that injuries of a relatively short duration, with no long term or permanent impact do not substantially limit major life activities, and therefore are not considered disabilities within the meaning of the Rehabilitation Act. See Defs.' Br. at 39 (citing Third Circuit case law and relevant code provisions). The Defendants argue that the record is devoid of any evidence suggesting that the Plaintiff's condition was permanent or long-term in nature; therefore, the Plaintiff's claims regarding his on-the-job injury must be dismissed. See id. The case law and relevant regulations support this conclusion, and the Plaintiff fail to cite a single authority to the contrary. See, e.g., Dorn v. Potter, 191 F. Supp.2d 612, 624 (W.D. Pa. 2002) (holding that a plaintiff who suffered a back injury in a work-related accident and incurred "significant residual problems from that injury for approximately eight months" was "temporary in nature and, therefore, [did] not constitute a covered disability as a matter of law [u]nder the Rehabilitation Act.") (citing Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 164, 196-98 (2002));Kotas v. Eastman Kodak Co., 1997 WL 570907, *12 (E.D. Pa. Sept. 4, 1997) (holding that plaintiff who was unable to work during several months of recuperation following surgery for chronic back-injuries was not disabled as a matter of law under the ADA, and characterizing the condition as a temporary disability); 29 C.F.R. Pt. 1630, App. § 1630.2(j) ("[T]emporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are not usually disabilities."); see also generally McDonald, 62 F.3d at 95-96 (outlining legislative history of Rehabilitation Act and concluding that a plaintiff's two month recovery from abdominal surgery was of "limited duration" and therefore not a disability). Thus, the Plaintiff's disability claims based on his on the job injury must be dismissed.
In fact, the Plaintiff's own deposition testimony states that the effects of the injury lasted, at most, six months. See Mihalko Dep. at 70.
The standards defining a "disability" under the ADA are the same as those under the Rehabilitation Act. See McDonald, 62 F.3d at 95 (stating "[t]he two statutes have closely parallel definitions of disability")
The Plaintiff's disability claims based on his alleged depression are equally unavailing. The majority of the parties' arguments focus on whether the Defendants knew of the Plaintiff's condition. The Defendants contend that they "never knew or perceived that the Plaintiff was disabled or suffering from any mental condition, including depression." See Defs.' Br. at 39. In fact, the Plaintiff's own testimony confirms that he never told any of his superiors about this condition. See Mihalko Dep. at 93 ("Q: . . . Did you ever tell anybody at the post office, either by word or letter or writing, that you were suffering from depression? A: No, not sure of that. It was not something you want to disclose."). Nonetheless, the Plaintiff responds that an affidavit submitted to the EEOC from David Rupinsky ("Rupinsky") demonstrates otherwise. See Pl.'s Br. at 8; see also Aff. of David Rupinsky (attached as Ex. D to Pl.'s Exs.) at 14. That document, dated July 26, 2000, states that Rupinsky "was not aware of his disabilities prior to this complaint, with the exception of his being treated for depression approx. 1 year prior." See id. While the Plaintiff's evidence does not directly negate the Defendants' assertions that it did not know of the depression that allegedly began around March 2000 — that is, the affidavit only shows that Rupinsky knew the Plaintiff was treated for depression on or about July 26, 1999, not the March 2000 depression — the court is required to resolve all doubts in the Plaintiff's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Nonetheless, even if the court assumes that the Defendants knew of the Plaintiff's alleged depression, the Plaintiff's claims are still critically deficient.
First, merely showing that an employer knows of an alleged handicap does not automatically prove that a plaintiff is, in fact, "disabled" within the meaning of the Rehabilitation Act. See Cade, 2002 WL 922150 at 13 (stating "the mere fact that an employer is aware of an employee's impairment is insufficient to show [a disability]") (internal quotations omitted, citing Kelly v. Drexel University, 94 F.3d 102, 109 (3d Cir. 1996)); accord Kotas, 1997 WL 570907 at *10 (stating same in context of ADA claims). Instead, "[i]t is essential that [he] demonstrate, not only that her employer perceived her as having an impairment, but also that the employer regarded that impairment as imposing a substantial limitation on a major life activity." See Kotas, 1997 WL 570907 at *10 (emphasis added, citation omitted). Here, the Plaintiff has failed to make any such showing. The Plaintiff has simply not submitted any evidences demonstrating: 1) which, if any, major life activities were impacted by his depression; 2) that these potential limitations could be construed as "substantial" when viewed in the aggregate; or 3) that the Defendants had perceived any such "substantial limitations." Instead, the Plaintiff essentially asks the court to rely solely on the "unsupported, self-serving declarations" contained in his deposition that his depression constituted a "disability." See Dorn, 191 F. Supp.2d at 623. Such declarations are simply not enough to support the legal conclusion that the Plaintiff "was substantially limited in any major life activity." See id.
In addition, the Plaintiff has not proffered any medical records or affidavits by treating physicians verifying his condition. While such evidence is not always necessary, "the absence of medical evidence of an impairment is a factor cutting against a plaintiff's claim of disability." See Dorn, 191 F. Supp.2d at 623.
Second, even if the Plaintiff had shown that he was "disabled," his claims would still fail because he never notified his superiors with a request to accommodate his condition. The Third Circuit has consistently recognized that to trigger an employer's potential duty to accommodate, a plaintiff must provide notice of the request for accommodation. See Jones v. United Parcel Service, 214 F.3d 402, 407-08 (3d Cir. 2000). Although such notice need not "be in writing, be made by the employee [himself], or formally invoke the magic words `reasonable accommodation,' the notice nonetheless must make clear that the employee wants assistance for his or her disability." See id. At 408 (emphasis added, citations omitted). Here, there is no evidence suggesting that the Plaintiff made such a request. In fact, his own deposition testimony indicates the contrary — i.e., that he deliberately concealed this information from his supervisors. See Mihalko Dep. at 93. As the Third Circuit has recently noted, "neither the law nor common sense can demand clairvoyance of an employer" to identify and accommodate alleged disabilities in the absence of a request. See Conneen v. MBNA America Bank, N.A., 334 F.3d 318, 331 (3d Cir. 2002) (citations omitted); see also Beck v. University of Wis. Bd. of Regents, 75 F.3d 1130, 1134 (7th Cir 1996) (stating that the initial duty to inform an employer of a disability is dictated by "common sense lest a disabled employee keep his disability a secret and sue later for failure to accommodate"). As the Plaintiff has fail to meet its burden of proving that his depression constituted a disability or that he made a request for accommodations, these claims must be dismissed.
For the reasons stated above, the Plaintiff has failed to state a prima facie case of disability discrimination; thus, it is recommended that the District Court grant summary judgment in favor of the Defendants in regard to these claims.
3. The Plaintiff Has Failed To State a Claim of Retaliation.
In examining a claims of illegal retaliation under Title VII, the court follows the McDonnell Douglas burden-shifting analysis, see discussion, supra, at 8-9. See Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 187 (3d Cir. 2003). To prevail, the plaintiff initially bears the burden of showing: 1) he engaged in a protected activity; 2) the employer took an adverse employment action either after or contemporaneous with the employee's protected activity; and 3) a causal connection between the employee's protected activity and the employer's adverse employment action. See id. at 197 (citing Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997)). If the plaintiff is able to establish a prima facie case, "the burden shifts to the employer to advance a legitimate, non-retaliatory reason for its adverse employment action." See id. (citation omitted). Once met, the burden shifts back to the plaintiff to prove "retaliatory animus played a role in the employer's decisionmaking process and that it had a determinative effect on the outcome of the process." See id. (citation omitted).
In regards to the Plaintiff's prima facie case, the parties do not dispute that the first element has been met: on January 3, 2000, the Plaintiff filed an EEOC complaint, which constitutes a "protected activity" for the purposes of Title VII. See Pl.'s Br. at 10; Defs.' Br. at 46. The Defendants' challenges fall solely under the second and third element. See generally Defs.' Br. at 46-60.
In large part, the factual averments underpinning the Plaintiff's retaliation claims entail a mere recasting of similar, if not the same, allegations the Plaintiff recited as the basis of its other discrimination claims. Compare Pl.'s Br. at 3-9 with id. at 9-10. To the extent that the undersigned has already concluded that certain allegations do not constitute adverse employment actions, it is unnecessary to address them again here. Thus, for the reasons already stated above, the Plaintiff's claims relating to the denial of sick leave and annual leave should be dismissed. See discussion and cases cited, supra, at 13-14; see also Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d. Cir. 1997) (noting "not everything that makes an employee unhappy qualifies as retaliation, for otherwise, minor and even trivial employment actions that an irritable, chip-on-the-shoulder employee did not like would form the basis of a [retaliation claim]") (citation omitted).
The same goes for the myriad of other trivial allegations that the Defendants have mentioned in their briefing, to which the Plaintiff has simply not responded — e.g. not allowing the Plaintiff to talk to others or read newspapers, receiving unspecified threats, requiring the Plaintiff to lift heavy trays, requiring medical records from the Plaintiff's treating physician, etc. See Defs.' Br. at 46-60.
What remain are the Plaintiff's claims based on the January 25, 2000 suspension letter ("the suspension") and alleged denial of overtime during the period of January 4-12. See Pl.'s Br. at 10; see also discussion, supra, at 12. Both of these claims must be dismissed, as the Plaintiff has simply failed to set out any evidence suggesting a causal connection between these alleged adverse employment actions and the Plaintiff's EEOC complaint.
In regard to the first claim, the Defendants argue that the process leading up to the suspension began long before the Plaintiff's Complaint was filed. See Defs.' Br. at 51. The basis for the suspension, according to the Defendants, was the Plaintiff's continual overrunning of his street time. See id. The Defendants maintain that the Plaintiff was issued a letter of warning on September 1999 for the same offense, and on at least ten occasions from October 7, 1999 through the end of December of that year, street surveillance revealed that the Plaintiff had continued to overrun his street time. See id. The Plaintiff does not challenge these facts, but instead argues that if the Defendants' contentions are true, then the Defendants could have issued the suspension at any point between September 1999 and January 1, 2000. See Pl.'s Br. at 10. The Plaintiff asserts that the fact that the Defendants waited until January 25 — at which point the Plaintiff was serving only light duty due to his accident — establishes the necessary causal connection. See id. Even taking the facts in the light most favor to the Plaintiff, however, the claim nonetheless fails on several levels.
First, it is well-settled that where an employee contemplates an adverse employment action prior to the plaintiff engaging in a protected activity, the employment action itself does not provide evidence of a causal connection for the purposes of a retaliation claim. See, e.g., Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001) (stating that "[e]mployers need not suspend previously planned [adverse employment actions] upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitely determined, is no evidence what[so]ever of causality) (emphasis added); Williams v. Pa. State Police Bureau of Liquor Control Enforcement, 108 F. Supp.2d 460, 466 (E.D. Pa. 2000) (holding that no causal nexus existed where investigation leading to 15-day suspension was initiated months prior to, and completed before, the protected activity, and the suspension was not issued until two months after the protected activity); Ricks v. Conde Nast Pulications, Inc., 92 F. Supp.2d 338, 347 (holding that there was no causal connection where the employer had "taken steps towards" termination in the form of oral warnings before the protected activity); see also, e.g., Rand v. Mannesmann Rexroth Corp., 2002 WL 550396, *8 (E.D. Pa. Apr. 15, 2002) (stating "where an employer contemplated an adverse employment action prior to the plaintiff engaging in a protected activity, the employment action cannot provide evidence of a causal connection") (citation omitted); Osuala v. Community College of Philadelphia, 2000 WL 1146623, *9 (E.D. Pa. Aug. 15, 2000) (holding no causal connection existed where ongoing problems with employee that ultimately led to her suspension arose before protected activity). The undisputed facts here make clear that the suspension was contemplated before the Plaintiff filed his EEOC complaint. Thus, it cannot establish causation as a matter of law. Nor has the Plaintiff set out any other evidence of causation. See Robinson v. City of Pittsburgh, 120 F.3d 1286, 1301 (3d. Cir. 1997) ("[T]he mere fact that [an] adverse employment action occurs after a complaint will ordinarily be insufficient to satisfy the plaintiff's burden of demonstrating a causal link between the two events") (citation omitted).
The simple fact that the suspension letter was finally issued while the Plaintiff was on light duty does not establish the necessary causal connection. At best, this evidence goes towards demonstrating "retaliatory animus," see the McDonnell Douglas standard, supra, at 31; however, this fact alone is simply insufficient to rebut the "legitimate, non-retaliatory reason" the Defendants have presented above. See Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (stating a "plaintiff must point to some evidence, direct or circumstantial, from which a fact finder could reasonably either (1) disbelieve the employer's articulated reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action.") (citation omitted). For these reasons, the Plaintiff's claims based on the suspension letter must be dismissed.
The Plaintiff's claims relating to the denial of overtime are based on virtually identical allegations to those raised under his age and reverse gender discrimination claims. For the purposes of showing retaliation, however, the Plaintiff requests that the court focus exclusively on the Defendants' conduct between January 4 and 12, approximately the week following the filing of his Complaint. See Pl.'s Br. at 10. The Plaintiff states that during this time period, the Plaintiff route was "frequently `cased' and he was repeatedly told to finish his route within the allotted time and was denied overtime when he was unable to do so." See id. Perhaps, if the court were to view these unsubstantiated allegations in complete isolation giving no consideration to the context in which they occurred — as the Plaintiff apparently asks this court to do — the temporal proximity between the Plaintiff's protected activity and the adverse employment action might give rise to an inference of causation, as the lapse of time between the two events amounted to a single day. This approach, however, is contrary to well-established law as well as common sense. See, e.g., Woodson v. Scott Paper, 109 F.3d 913, 920 (3d Cir. 1997) (stating that in regard to whether evidence is sufficient to establish causation, district courts must make determinations "based on the whole picture") (emphasis added, citation omitted). When viewed in light of the attendant circumstances, this claim borders on the frivolous.
However, the Plaintiff cites no authority to support such a proposition. In fact, district courts in Pennsylvania, interpreting the seemingly contradictory case law from the Third Circuit, have generally concluded that temporal proximity alone is insufficient to show causation unless "unusually suggestive." See, e.g., Hartman v. Sterling, 2003 WL 22358548, *10 (E.D. Pa. Sept. 10, 2003) (after reviewing Third Circuit case law, stating "[u]nless the temporal proximity is `unusually suggestive,' it, taken alone, is insufficient to establish the necessary connection. . . .[Instead,] timing plus other evidence [such as a pattern of antagonism] is the appropriate test").
First, by the Plaintiff's own account, the majority of the complained of conduct, namely, the extension of street times and frequent casing, occurred or commenced prior to the filing of his EEOC complaint. See Mihalko Dep. at 44. (stating that his postal route increased in May 1998 — approximately a year and a half before the complaint was filed — when several postal routes were eliminated and distributed among other routes, and has continued to increase ever since); id. at 64. (stated that the "casing" of his mail occurred November 1999, at least one month before the complaint). Logically, it would be impossible to find causation, as the majority of the complained of conduct predates the protected activity.
Moreover, Plaintiff's counsel has simply not directed the court to any portions of the record clearly demonstrating that such conduct even continued to occur after the Plaintiff's filed his complaint.
Secondly, the Defendants' submissions demonstrate that the Plaintiff did receive overtime hours during this period. See Overtime Hours of Edward Mihalko (Chart) (attached as Ex. 1 to Dec. of Thomas Collins, Defs.' Ex. H.). In fact, he accrued more hours in the first two weeks of January 2000 than he had in any two week-period during the entire year of 1999. See id. Under similar circumstances, district courts in this circuit has concluded that such evidence negates causation. See, e.g., Hodgkins v. Kontes Chemistry Life Scis. Prod., 2000 WL 246422, *6 (D.N.J. Mar. 6, 2000) (reviewing employee's overtime records and concluding that, notwithstanding minor dips following plaintiff's filing of an EEOC complaint, evidence of causation was lacking).
For these reasons, the Plaintiff has failed to make out a prima facie case of retaliation based on the alleged denial of overtime.
In sum, the Plaintiff has not proffered sufficient evidence to state a claim for retaliation under Title VII; thus, it is recommended that the District Court grant the Defendants' Motion in regard to these claims.
To the extent that the Plaintiff's cause of action might be based on the protected activity of filing a worker's compensation claim following the Plaintiff's on-the-job accident — a theory raised in the Complaint, see Compl. at 2, but not pursued in the Plaintiff's subsequent briefing — it nonetheless fails for largely the same reasons. The worker's compensation claim was filed after the EEOC complaint, and therefore it postdates all of the complained-of conduct. Causation is again lacking and the claim should also be dismissed.
4. The Plaintiff Has Failed To Establish a Hostile Work Environment.
To show a hostile work environment based on age discrimination, a plaintiff must show: 1) that he suffered intentional discrimination because of age; 2) which is pervasive and regular; 3) and has detrimental effects; 4) that would be suffered by a reasonable person of the same age in the same position; and 5) that respondeat superior liability exists. See Fries v. Metropolitan Management Corp., ___ F. Supp.2d ___, available at 2003 WL 22831362, *4 (E.D. Pa. Nov. 13, 2003) (citing inter alia Tumolo v. Triangle Pac. Corp., 46 F. Supp.2d 410, 412 (E.D. Pa. 1999)). To be successful in such actions, the plaintiff must demonstrate that the workplace is "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive as to alter the conditions of the victim's employment and create an abusive working environment. See id. (citingHarris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993)).
The Plaintiff contends that he and other "`older' postal employees have testified that older employees were repeatedly harassed to get their routes done within the allotted time even though they notified postal management that they were unable to do so . . . This harassment was intentional, regular and was based on age." See Pl.'s Br. at 11-12. Counsel then proceeds to cite, without explanation, the identical portions of the record it had listed in regard to its disparate treatment claims. Compare Pl.'s Br. at 11 with id. at 5. As the undersigned has already discussed in analyzing those claims, this evidence simply fails to meaningfully demonstrate any "intentional discrimination" on the part of postal management. See discussion, supra, at 14-22; see also Solomon v. Soc'y of Auto. Eng'rs, 41 Fed.Appx. 585, 586 (3d Cir. July 30, 2002) (holding that "a plaintiff cannot rely on unsupported assertions, speculation, or conclusory allegations to avoid a motion for summary judgment") (citation omitted). The first prong of the test has not been met; therefore, the Plaintiff's hostile work environment claim must be dismissed. Accord Williams v. Pa. State Police-Bureau of Liquor Control Enforcement, 108 F. Supp.2d 460, 468 (E.D.Pa. 2000) (granting summary judgment to Defendant on hostile work environment claim where evidence, at best, demonstrated that plaintiff "may have been treated differently than others and may have been detrimentally affected by it, [but] failed to produce evidence from which a reasonable jury could infer that she was treated differently because of her [protected status]") (emphasis in original).
Nor does the Plaintiff's assertion, without any specific citation to the record, that "a reasonable person of the same age who held the same position has testified that older employees were given much more grief about finishing their routes with the allotted time" have any bearing on the court's analysis. See Bogle v. Orange County Bd. of County Com'rs, 162 F.3d 653, 658-59 (11th Cir. 1998) (finding that "unverifiable, anecdotal testimony from [plaintiff's] co-workers . . . could not support a reasonable jury finding [of discrimination]"). To the extent that this evidence would go to the fourth prong of the hostile work environment analysis, the court need not reach that issue because, as discussed here and below, the Plaintiff has failed to establish the first two elements of its claim.
Even if the court were to assume arguendo that the Plaintiff was treated differently based on his age, the claim would still fail, as the conduct alleged simply was not sufficiently severe of pervasive enough to constitute a cognizable hostile work environment. See, e.g., Williams, 108 F. Supp.2d at 468. (finding that in regard to alleged hostile work environment that persisted for five years, in which "the plaintiff received poor performance evaluations, was the subject of three . . . complaints (only one of which resulted in any disciplinary action), and had interpersonal conflicts with her supervisors and co-workers" did not rise "to the level of severe or pervasive mistreatment required to sustain a hostile work environment claim"); Nwanji v. City of New York, 2000 WL 1341448, *5 (holding, in case where plaintiff's "supervisors were constantly reprimanding [plaintiff] and documenting his poor work performance," that "even assuming arguendo that [plaintiff] could demonstrate that [the actions] were motivated by . . . discrimination" it would be reasonable to conclude that they were not "severe or pervasive enough to support a hostile work environment claim").
The Plaintiff has failed to establish the first two prongs of the hostile work environment analysis; therefore, as a matter of law, the claims for hostile work environment must be dismissed.29
III. CONCLUSION
For the above mentioned reasons, it is recommended that the District Court grant the Defendants' Motion for Summary Judgment.In accordance with the Magistrate's Act, 28 U.S.C. § 636 (B)(1)(B) and (C), and Rule 72.1.4(B) of the Local Rules for Magistrates, objections to this Report and Recommendation are due by December 29, 2003. Responses to objections are due by January 8, 2004.