Sumner v. U.S. Postal Service
| Decision Date | 28 March 1990 |
| Docket Number | D,No. 762,762 |
| Citation | 899 F.2d 203 |
| Parties | 52 Fair Empl.Prac.Cas. 891, 53 Empl. Prac. Dec. P 39,807 Clement SUMNER, Appellant, v. UNITED STATES POSTAL SERVICE, Appellee. ocket 89-6191. |
| Court | U.S. Court of Appeals — Second Circuit |
Morris H. Wheeler, New York City (Philip Ransom Schatz, Ogden N. Lewis, Vincent T. Chang, Davis Polk & Wardwell, New York City, on brief), for plaintiff-appellant.
Paula T. Dow, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty. for S.D.N.Y., Richard W. Mark, Asst. U.S. Atty., on brief), for defendant-appellee.
Before OAKES, Chief Judge, and KEARSE and FLETCHER, * Circuit Judges.
Appellant Clement Sumner, who is black, worked for the United States Postal Service from January 1981 until he was fired in June 1984. In his complaint and at trial, Sumner charged that the Postal Service's decision to terminate him discriminated on the basis of race and constituted illegal retaliation for his engaging in activities protected under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e. The Postal Service denied any racial discrimination or retaliatory animus. The district judge, after a five day bench trial, dismissed Sumner's complaint, and Sumner appeals from that final order. We reverse.
Sumner was hired by the Postal Service in January 1981 as a "part-time flexible subcarrier"; he was assigned to the General Post Office at the James A. Farley Building, Eighth Avenue and 33rd Street, New York City. His job responsibilities included bundling, delivering, and collecting mail on a part-time basis. Frank Montemarano was Sumner's immediate supervisor for a year beginning in the summer of 1981. Montemarano also served as a supervisor of Delivery and Collections. In that capacity he issued work assignments to the part-time flexible subcarriers. The relevant chronology of Sumner's employment history, including his disciplinary record and his discrimination complaints against the Postal Service, is as follows.
On March 29, 1982, the Postal Service issued a letter of warning to Sumner for committing an unsafe act (improper loading and closing of a storage box). Following Sumner's appeal through the union grievance process, the letter of warning was reduced to an "oral discussion" and was expunged from Sumner's disciplinary record. The Postal Service's disciplinary system progresses in severity from oral discussions and letters of warning through several day suspensions to termination. When an employee is disciplined, the typical procedure is for the employee to receive a letter which informs him or her of the alleged infraction, the penalty to be imposed, and any prior incidents that were taken into account in deciding upon the discipline imposed. Under Postal Service procedures, oral discussions are not filed in an employee's formal disciplinary file and may not be relied upon as a prior infraction to increase the severity of discipline for a subsequent infraction. The employee may appeal imposition of discipline through a multi-stage grievance procedure.
In April of 1982, Sumner filed a complaint with the Equal Employment Opportunity Commission alleging sex discrimination by Tour Superintendent Hewlett. Sumner was pursuing a Master's Degree in Theater and wished to attend classes. According to Sumner, the Postal Service had modified the work schedules of two women in order to allow them to attend college classes, but had refused to do the same for Sumner. The Postal Service agreed to modify Sumner's schedule, and he withdrew his EEO complaint.
On May 14, 1982, the Postal Service notified Sumner that he was suspended for seven days because on April 24 he had taken an unauthorized lunch period, was insubordinate to a supervisor, and had failed to make a collection. The Postal Service later modified the suspension to a letter of warning. This was expunged from Sumner's record, but relied upon in the Notice of Proposed Removal that culminated in his termination.
On June 23, 1982, Sumner filed an EEO complaint against Mr. Hewlett, Acting Tour Superintendent Travis, and Supervisor Santiago alleging that the May 14 suspension was issued in reprisal for his filing the April EEO complaint. The parties subsequently settled; the Postal Service reduced the suspension to a letter of warning, and Sumner withdrew his complaint.
According to Sumner, in the spring or summer of 1982 he complained to Montemarano, who was his supervisor at the time, that preferred routes were being assigned to carriers on a racially discriminatory basis. Sumner testified that he wrote a letter, which was signed by him and three other carriers, and presented to Montemarano. Montemarano testified that he remembered the four carriers complaining about work assignments but could not recall whether Sumner had alleged racial discrimination.
From early summer 1982 through October 1983, Sumner worked for supervisors other than Montemarano and was not disciplined. In October 1983, Sumner's supervisor went on leave, and Montemarano assumed her duties. On October 12, Montemarano issued a letter of warning to Sumner for an alleged failure to work mandatory overtime on October 3. Sumner claimed he had obtained advance permission from another supervisor to miss the scheduled day because he had to appear in court. The union supported Sumner and charged that Montemarano's action was not justified. In December 1983, the Postal Service agreed to reduce the letter of warning to an oral discussion six months after the issue date, provided there was no subsequent discipline. Sumner discontinued his grievance. In the meantime, on October 14, 1983, Montemarano had issued a letter of warning to Sumner for being absent without official leave ("AWOL") for two and one-half hours on October 7. In October 1983, Sumner transferred to another section in the Post Office.
On February 27, 1984, Sumner sent a letter to George Shuman, the New York Postmaster, complaining that Supervisor Ruben Blumen was mismanaging the department and unfairly treating the carriers.
On March 2, 1984, Sumner's immediate supervisor, Stella Pearson, at the direction of General Supervisor Blumen, suspended Sumner for seven days for being "AWOL." According to Pearson's testimony before the EEOC, Sumner called in to say he would be late, but Blumen nonetheless instructed Pearson to charge Sumner with being AWOL for his tardiness. Blumen and Pearson discussed the appropriate penalty, and, based on the prior disciplinary record, imposed the suspension. The Postal Service modified the suspension to three days on July 16, 1984, after Sumner was terminated. On March 20, Sumner initiated an informal EEO complaint charging the Postal Service with racism. On March 29, Pearson, either with Blumen's approval or at his direction, suspended Sumner for fourteen days for being absent for eight hours on February 27.
In April 1984, Sumner converted the March 20 informal complaint into a formal EEO complaint charging Blumen with racial discrimination. Sumner noted that economic oppression is the trademark of racism and alleged that the two suspensions were an attempt to deprive him of his job. Sumner also circulated a petition directed to the Postmaster General complaining of Blumen, including his inability "to live and work with other human beings." Seventy-nine co-workers signed the petition.
On May 2, 1984, the incident that resulted in Sumner's termination occurred. 1 Some details of the encounter remain disputed, but the broad contours are fairly clear. Because of a back injury, Sumner had been reassigned to another section, put on "limited duty," and given approval by his supervisor to rest his back at his discretion. Sumner was assigned to slot mail at a letter carrier case, which is a cabinet approximately six feet high with a ledge approximately 28 inches from the floor, above which are mail slots. Montemarano testified at trial that he observed Sumner sitting on the ledge of the case, a position which the Postal Service views as unsafe. Sumner testified at trial that he was sitting on a stool in front of the case, not on the case. His testimony was corroborated by three other postal employees with whom Sumner was talking at the time of the incident. The district court specifically found that Sumner was telling the truth on this point. According to Montemarano, he approached Sumner because he saw Sumner committing this "very big safety infraction." He asked Sumner, "What are you supposed to be doing?" Witnesses testified that when he approached Sumner, Montemarano's manner was "accusative," "agitated," and "looking for trouble." Sumner testified that he and his coworkers laughed, because they had just been talking about the fact that Montemarano had not bothered him for some time. Montemarano testified that Sumner responded in a disrespectful manner. All agree that Sumner told Montemarano that he was not his (Sumner's) supervisor, that Sumner said he had to go to the bathroom, and that he left, refusing to speak any further with Montemarano. A short time later, after speaking with Sumner's supervisors, Montemarano again saw Sumner and tried to speak with him. According to Montemarano, Sumner placed his fingers in his ears, stuck out his tongue, mumbled unintelligibly, and refused to speak to Montemarano. Sumner denied doing this, but the district judge believed Montemarano on this point. 2
Shortly afterward, Montemarano recommended that Sumner be fired. In his report to his immediate superior, Montemarano based the recommendation on the safety violation, disrespect to a supervisor, and failure to obey a direct order. On May 21, 1984, Montemarano issued Sumner a Notice of Proposed Removal. The Notice informed Sumner that the Postal Service intended to "remove" him based on two charges: (1) committing an unsafe act, and (2) disrespect to a supervisor. The...
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