Delia v. Donahoe

• Decision Date: 23 May 2012
• Docket Number: No. 03 CV 3367(DRH)(AKT).,03 CV 3367(DRH)(AKT).
• Citation: Delia v. Donahoe, 862 F. Supp. 2d 196 (E.D. N.Y. 2012)
• Parties: Patrick DELIA, Plaintiff, v. Patrick R. DONAHOE, Postmaster General U.S. Postal Service, Defendant.
• Court: U.S. District Court — Eastern District of New York

862 F.Supp.2d 196

Patrick DELIA, Plaintiff,

v.Patrick R. DONAHOE, Postmaster General U.S. Postal Service, Defendant.¹

No. 03 CV 3367(DRH)(AKT).

United States District Court, E.D. New York.

May 23, 2012.

Daniel F. DeVita, Esq., Garden City, NY, for Plaintiff.

Loretta E. Lynch, United States Attorney, Eastern District of New York, by: Kelly Horan Florio, Assistant United States Attorney (of Counsel), Brooklyn, NY, for Defendant.

MEMORANDUM AND ORDER

HURLEY, Senior District Judge:

Plaintiff Patrick Delia commenced this action alleging that his former employer, the United States Postal Service (the “Postal Service”), violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), by discriminating against him based upon his national origin and by retaliating against him because he filed administrative complaints of discrimination.² Presently before the Court is defendant's motion, made pursuant to Federal Rule of Civil Procedure 56, for summary judgment. For the reasons set forth below, defendant's motion is granted in part and denied in part.

BACKGROUND

The material facts, drawn from the Amended Consolidated Complaint and the parties' Local Civil Rule 56.1 Statements, are undisputed unless otherwise noted.³

The Parties

Plaintiff is of Italian national origin. He began working for the Postal Service in temporary or training capacities as early as 1975, and became a permanent employee on May 17, 1980. Plaintiff was originally assigned to work in the JFK postal facility located in Brooklyn, New York. As of February 7, 1981, plaintiff's official title was “Maintenance Mechanic, Mail Processing Equipment” (“MPE mechanic”), and his duties included “breakdown and preventative maintenance and daily maintenance of mail processing equipment.” (Def.'s 56.1 ¶ 6.)

In addition to JFK, plaintiff worked at, inter alia, two other Postal Service facilities: the Western Nassau Processing and Distribution Center in Garden City, New York (“Western Nassau”) between 1989 and 1999, and the Hempstead Main Post Office in Hempstead, New York (“Hempstead”) from 2000 through 2004. Plaintiff retained his MPE mechanic title throughout this time period. His employment with the Postal Service ultimately came to an end in April 2004.

Stephen Vertescher served as the Supervisor of Maintenance Operations at Western Nassau, and as plaintiff's direct supervisor, between January and May 1999. Dominick Brunone served as the Manager of Maintenance at Western Nassau beginning in July 1998 and he remained in that capacity as of 1999 when plaintiff left that location. Brunone did not supervise plaintiff directly, “but rather was separated in the chain of command from the MPE mechanics by the Supervisors of Maintenance,” including Vertescher. ( Id. ¶ 29.) Dominick Bratta served as Acting Plant Manager and, later, as Plant Manager of Western Nassau between March and November 1999. Keith Fischer served as Western Nassau's Acting Plant Manager and, later, as Plant Manager between November 1999 and at least February 2001. ( Id. ¶¶ 40–42.)

The “Dye Date” Incident

As of October 1998, plaintiff's job duties including cleaning out mail processing machines and changing “dye dates” to ensure that the proper date was stamped on each piece of mail processed by that machine. On January 8, 1999, plaintiff received a Letter of Warning (the “First LOW”) charging him with two counts of “Failure to Follow Instructions” based upon his failure to correctly change the dye dates on December 17, 1998, which caused at least 30,000 pieces of mail to be “cancelled” using an incorrect date. (Decl. of Kelly Horan Florio (“Florio Decl.”), Ex. AA.) Plaintiff asserts that even though “at least a half-dozen other employees shar[ed] responsibility for ensuring that type of error did not occur, only I was charged.” (Decl. of Patrick Delia, dated July 18, 2011 (“Delia Decl.”) ¶ 13.) According to plaintiff, Vertescher issued the First LOW at Brunone's direction.

On January 27, 1999, Vertescher received a Proposed Letter of Warning, signed by Brunone, which stemmed from the same dye date incident and stated: “This proposed letter of warning is being issued to you in lieu of a 7–day time-of suspension.” (Florio Decl., Ex. BB.) ⁴

The May 6, 1999 “Missing in Action” Incident

On May 6, 1999, Vertescher informed plaintiff that Acting Supervisor Michael Lutz had reported plaintiff “missing in action” for a portion of plaintiff's May 3, 1999 shift. Plaintiff's pay was docked for the time Lutz reported him to be missing. (Delia Decl. ¶¶ 15–17.) Plaintiff telephoned Lutz at home that day and, following the conversation, plaintiff believed that any attendance and pay issues had been the result of a miscommunication between supervisors. Plaintiff's pay was, in fact, restored several days later. ( Id.)

Plaintiff's May 7, 1999 Contact with the EEO Office

On May 7, 1999, plaintiff filed a request with the Postal Service's Office of Equal Employment Opportunity (“EEO”) for “precomplaint counseling.” (Delia Decl. ¶ 22.) Plaintiff asserted that Brunone had “unfairly” issued the First LOW and had “baselessly termed [him] a ‘high maintenance employee.’ ” ( Id.) Plaintiff claimed that he was being discriminated against because of his “Italian heritage.” ( Id.) The EEO acknowledged receipt of plaintiff's request for pre-complaint counseling by letter dated May 20, 1999. (Delia Decl., Ex. 15; Def.'s 56.1 ¶ 285; Pl.'s 56.1 ¶ 148.)

Inspector Nater's Investigation Begins

On May 17, 1999, Brunone wrote a letter to Postal Service Inspector Felix Nater regarding a “Threatening Situation” involving plaintiff. (Florio Decl., Ex. DD.) Brunone informed Nater that plaintiff had called Lutz at home in connection with the May 6, 1999 “missing in action” incident, “which resulted in [Lutz] informing [Brunone] that [Lutz] never wanted to act as [plaintiff's] supervisor again.” ( Id.) Brunone stated that he “fe[lt] that Mr. Delia's call to [Lutz's] famil[y's] house made [Lutz] feel threatened.” ( Id.) Brunone continued:

After that incident I started hearing stories of several other incidents that occurred before I was on duty at Western Nassau. These incidents include physical assaults, threats, and spitting in people's faces, all involving this same employee, Patrick Delia ... [O]f the four people [involved], only one is willing to speak about it. This individual, Dennis Murphy[,] recounted an incident in which Mr. Delia physically assaulted him. The other people I spoke to appear frightened to come forward. In my opinion they are worried for the safety of themselves and their families.

I myself was approached by Mr. Delia in my office [on May 7, 1999] and felt quite uneasy by his demeanor, to the point that I made sure to have someone else (a union official) come into my office rather than be alone with him. This occurred on a day that Mr. Delia called me from home and got upset on the phone, upset to the point that he drove to work to confront me.

( Id.) Brunone concluded by requesting Nater's assistance. Subsequently, Nater commenced an investigation into plaintiff's alleged conduct.

Defendant asserts that as part of this investigation, Nater “interviewed witnesses, including plaintiff, and reviewed plaintiff's Official Personnel File and criminal record,” and that Nater “followed standard procedure” in conducting his investigation. ( See Def.'s 56.1 ¶¶ 130, 131.) Plaintiff asserts that Nater did not follow “Threat Assessment Standard Operating Procedures” because he failed to interview certain witnesses, took statements only from witnesses “who were favorable to” the Postal Service, distributed copies of plaintiff's criminal record, and failed to take a written statement from plaintiff. (Pl.'s 56.1 ¶ 131.)

On May 21, 1999, Nater interviewed Dennis Murphy, who recounted an altercation with plaintiff that purportedly took place in 1996. According to Murphy, plaintiff grabbed Murphy, spilled coffee on him, threw him against a wall, and yelled at him. ( See Florio Decl., Ex. II.) ⁵ In June 1999, Brunone passed on additional information to Nater: Western Nassau employee George Fuchs had informed Brunone that, on May 6, 1999, plaintiff had asked Fuchs for directions to Lutz's home. Fuchs reported that he was concerned for Lutz's safety and telephoned Lutz to relay the incident. ( See Florio Decl., Ex. JJ.) Finally, on June 8, 1999, Lutz supplied Nater with a written statement that described, inter alia, his eyewitness account of a physical altercation between plaintiff and Jeff Allen that occurred two years earlier, during which plaintiff knocked Allen to the ground. (Florio Decl., Ex. EE at 2218.)

On July 7, 1999 and July 12, 1999, Nater issued an Investigative Memorandum and Supplemental Investigative Memorandum, respectively, which detailed his investigation into plaintiff's conduct. In the July 12, 1999 Supplemental Investigative Memorandum, Nater noted that during plaintiff's June 8, 1999 interview, plaintiff had “stated [that] he was arrested twice for DWI and [had] one juvenile arrest for firecrackers” but “that there were no other arrests or convictions to report.” (Florio Decl., Ex. FF at 1687.) However, Nater had uncovered evidence that, contrary to these assertions, plaintiff had been arrested six times between 1972 and 1992 and had been convicted in connection with five of those arrests.⁶ ( Id.) Furthermore, Nater reported that plaintiff had “failed to explain the convictions” that occurred prior to his employment in his May 1980 Postal Service Application for Employment,⁷ and that plaintiff failed to report the arrests and convictions that occurred after his employment commenced. ( Id. at 1687–88.) Plaintiff asserts that at the time he completed his employment application, he was “told by the administrator of the application process” to list felonies on the application and to separately list misdemeanors. (Pl.'s 56.1 ¶ 176.) According to plaintiff, he “listed the charges on...