358 F.3d 408 (6th Cir. 2004), 02-4010, DiCarlo v. Potter

Docket Nº:02-4010.
Citation:358 F.3d 408
Party Name:Henry DiCARLO, Plaintiff-Appellant, v. John E. POTTER, Postmaster General, Defendant-Appellee.
Case Date:February 20, 2004
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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358 F.3d 408 (6th Cir. 2004)

Henry DiCARLO, Plaintiff-Appellant,


John E. POTTER, Postmaster General, Defendant-Appellee.

No. 02-4010.

United States Court of Appeals, Sixth Circuit

February 20, 2004

Argued: Dec. 5, 2003.

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[Copyrighted Material Omitted]

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David A. Van Gaasbeek (argued and briefed), North Canton, OH, for Plaintiff-Appellant.

Kathleen L. Midian (argued and briefed), Asst. U.S. Attorney, Cleveland, OH, for Defendant-Appellee.

Before: KENNEDY, MARTIN, and MOORE, Circuit Judges.


MOORE, Circuit Judge.

Plaintiff-Appellant Henry DiCarlo ("DiCarlo") appeals the district court's grant of summary judgment in favor of Defendant-Appellee John Potter, 1 Postmaster General ("Postal Service"), DiCarlo's former employer. DiCarlo was terminated near the end of his probationary employment period for what the Postal Service asserted as unsatisfactory work performance. DiCarlo alleges that he was terminated on the basis of national origin, age, and disability discrimination. He also asserts that his termination was in retaliation for the Equal Employment Opportunity ("EEO")

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complaint he filed. The district court granted summary judgment in favor of the Postal Service on all four of DiCarlo's claims, concluding that he had failed to meet his burden of proof on any of them.

Because there are genuine issues of material fact as to DiCarlo's claims of national origin discrimination, age discrimination, and retaliation, we REVERSE the district court's grant of summary judgment on these claims, and REMAND for further proceedings consistent with this opinion. Additionally, because DiCarlo cannot establish a disability, we AFFIRM the district court's grant of summary judgment on DiCarlo's disability discrimination claim.


A. Factual Background

DiCarlo applied for and obtained a part-time flexible ("PTF") mail processor position with the United States Postal Service on September 25, 1999. The employment had been contingent on DiCarlo passing a drug screening and medical evaluation. As part of the evaluation, DiCarlo was provided a document, which he signed, outlining the "functional requirements" the mail processor position would entail. It included walking for two hours, standing for eight hours, and repeated bending, and it stressed that both legs were required for the job. Additionally, DiCarlo confirmed in writing that he had no medical condition for which he was currently receiving treatment and further attested to the fact that "[t]o the best of [his] knowledge, [he] d[id] not have any medical condition." Joint Appendix ("J.A.") at 84. After a complete medical assessment conducted by the Postal Service, it was concluded that DiCarlo had no medical limitations or restrictions, and that he was "medically qualified to perform the functions of the position." 2 J.A. at 85. DiCarlo was assigned to the Canton, Ohio Main Post Office, to begin work on January 15, 2000.

As a new employee, the first ninety days of DiCarlo's employment were deemed a "probationary period." Under this agreement, the Postal Service reserved the right to terminate DiCarlo's employment at any point during the probationary period, which termination would not be subject to the grievance procedure. DiCarlo commenced his employment on January 15, 2000, and was placed under the direct supervision of Timothy Bailey ("Bailey"). Bailey would remain DiCarlo's supervisor until DiCarlo's termination on March 30, 2000. Bailey evaluated DiCarlo throughout his probationary period and generated contemporaneous notes of his work performance. These notes demonstrate that Bailey viewed DiCarlo's on-the-job performance as below standard. 3 DiCarlo appeared

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to be negatively reviewed on a rather consistent basis throughout the probationary period. 4 DiCarlo disputes these characterizations by Bailey. 5 Bailey claims that he informed DiCarlo of "his deficiencies, and [DiCarlo] failed to correct the problems," and that he "talked to him repeatedly as well as on his 30 and 60 day evaluation[s]." J.A. at 186. DiCarlo claims that he "was not advised of any work deficiencies prior to [his] termination and [] was never given the opportunity to correct alleged deficiencies." J.A. at 167.

Pursuant to DiCarlo's probationary employee status, he, like others during this period, received three performance evaluations--the first after thirty days, the second after sixty days, and the third after eighty days. In DiCarlo's first evaluation, dated February 14, 2000, out of the six categories evaluated, he received two "unacceptable" ratings and four "satisfactory" ratings. 6 In the second and third evaluations, dated March 15, 2000 and March 30, 2000 respectively, he received three "unacceptable" ratings and three "satisfactory" ratings. 7

During the course of his employment, on March 9, 2000, DiCarlo requested an appointment with an EEO counselor to discuss alleged discriminatory actions taken by Bailey against DiCarlo on the basis of the latter's national origin, age, and disability. 8 Specifically, DiCarlo asserts that he told Bailey on March 8, 2000 that he "had a physical disability 9 and []asked for

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a rest period because of the problems [he] was having" with the disability. J.A. at 169. DiCarlo alleged that Bailey responded that "he did not care about [DiCarlo's] physical disabilities," and "informed [him] that [he] had better start pushing." 10 J.A. at 169. DiCarlo also asserted that on the same day (March 8, 2000), Bailey informed him that "he was no spring chicken and that [he] would not be a supervisor at the facility because of [his] age." 11 J.A. at 169. Finally, DiCarlo said that Bailey called him a "dirty-wop" and complained that "there were too many dirty wops around [the facility]." J.A. at 169. Bailey denies ever having made any of these comments, and further refutes any allegation that he ever discriminated against DiCarlo in any way.

After meeting with an EEO counselor, both DiCarlo and the Postal Service agreed to mediate the dispute. 12 However, the mediation, which took place on March 29, 2000, failed to result in a settlement. Meanwhile, several days earlier, on March 22, Bailey submitted a memorandum to his manager "requesting [DiCarlo's] removal for failure to meet satisfactory performance levels." J.A. at 107. His manager, Gary Andriotti, agreed with the assessment and therefore approved the proposed termination. A letter was subsequently sent to DiCarlo on March 29, 2000, signed by Bailey, stating that DiCarlo was terminated effective April 1, 2000 due to his "unsatisfactory work performance." J.A. at 109.

On April 13, 2000, DiCarlo withdrew the discrimination complaint he had filed on March 9, 2000. On April 25, 2000, DiCarlo filed a new complaint with the EEO office, alleging discrimination based upon national origin, age, and disability as well as retaliation, and naming Bailey as the alleged responsible discriminating official. The Postal Service proceeded to conduct an investigation into the complaint, and informed DiCarlo of his right to demand a hearing before an administrative judge of the EEO Commission. 13 The Postal Service issued a Final Agency Decision on February 6, 2001, concluding that the evidence failed to establish discrimination on the basis of national origin, age, disability, or retaliation.

B. Procedural background

On May 3, 2001, DiCarlo filed suit 14 in district court alleging discrimination on the

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basis of national origin, age, disability, and retaliation. The Postal Service filed a motion for summary judgment on June 20, 2002, which the district court granted on August 19, 2002. The district court found "none of [DiCarlo's] claims [] sufficient to withstand summary judgment," as DiCarlo had failed to satisfy his burden of proof on every allegation of discrimination and retaliation. J.A. at 259. This appeal followed.

The district court had jurisdiction over DiCarlo's federal claims pursuant to 28 U.S.C. § 1331. We have appellate jurisdiction over the district court's final order pursuant to 28 U.S.C. § 1291.


A. The Summary Judgment Standard

This court reviews de novo a grant of summary judgment. Buckeye Cmty. Hope Found. v. City of Cuyahoga Falls, 263 F.3d 627, 633 (6th Cir. 2001); Terry Barr Sales Agency, Inc. v. All-Lock Co., 96 F.3d 174, 178 (6th Cir. 1996). "Under Rule 56(c), summary judgment is proper '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 a judgment as a matter of law.' " Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). "In deciding upon a motion for summary judgment, we must view the factual evidence and draw all reasonable inferences in favor of the non-moving party." Nat'l Enters., Inc. v. Smith, 114 F.3d 561, 563 (6th Cir. 1997). "We examine the grant of summary judgment to determine 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.' " C.T. Massey v. Exxon Corp., 942 F.2d 340, 342 (6th Cir. 1991) (quoting Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989)).

B. Title VII Standards

In Title VII actions, "a plaintiff may establish discrimination either by introducing direct evidence of discrimination or by proving inferential and circumstantial evidence which would support an inference of discrimination." Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997). When using circumstantial...

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