Chan v. Donahoe

63 F.Supp.3d 271

Fun K. CHAN, Plaintiff

v.Patrick R. DONAHOE, Postmaster General of the United States Postal Service, Defendant.

No. 13–CV–2599.

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

Signed Dec. 4, 2014.

Jonathan T. Trexler, Trexler Law, P.C., New York, NY, for Plaintiff.

Matthew Silverman, United States Attorney's Office, Brooklyn, NY, for Defendant.

MEMORANDUM, ORDER & JUDGMENT

JACK B. WEINSTEIN, Senior District Judge.

Table of Contents

I.	Introduction	276
II.	Facts	277

A.	Background	277
B.	Employment	277
C.	Timeline of Events Summary	277
D.	Plaintiff's EEOC Actions	282

1. EEOC Complaint 1 283

a.	Events Preceding Complaint	283
b.	Complaint	284

2. EEOC Complaint 2 284

a.	Events Preceding Complaint	284
b.	Complaint	284

3. EEOC Complaint 3 284

a.	Events Preceding Complaint	284
b.	Complaint	284

4. EEOC Complaint 4 285

a. Events Preceding Complaint 285

i.	Plaintiff's July 16, 2007 Suspension	285
ii.	Plaintiff's January 17, 2008 Suspension	285
iii.	Plaintiff's March 22, 2008 Notice of Removal	285
iv.	Plaintiff's February 2, 2009 Notice of Removal	285
v.	Plaintiff's Supervisor Wook Hong Issued Letter of Warning After He Curses at Plaintiff and Threatens to Fire Him	286
vi.	Customers Write Letters Asserting They Did Not Complain About Chan	286

b. Complaint 286

5. EEOC Complaint 5 287

a.	Events Preceding Complaint	287
b.	Complaint	287

6. EEOC Complaint 6 287

a. Events Preceding Complaint 287

i.	Plaintiff's April 30, 2010 Notice of Removal	287
ii.	Plaintiff's July 24, 2010 Notice of Removal	288

b. Complaint 288

E. Arbitration and Administrative Law Judge Rulings 289

1.	Arbitration Decision	289
2.	Administrative Law Judge Decision	289

F.	Linden Hill Supervisors' Awareness of Plaintiff's Protected Activity	290
G.	Similarly Situated Employees	290

III. Summary Judgment Standard 291

A.	Effect of Prior Decision by Independent Tribunal	292
B.	Consideration of Relevant Background Evidence	292

IV. Law 293

A.	Statutes	293
B.	Exhaustion of Administrative Remedies Standard	293
C.	Discrimination Claims Standard	293

1. Plaintiff's Burden: Prima Facie Case 293

a.	Stray Remarks Insufficient to Establish Prima Facie Case	293
b.	Inference Against Discrimination	294

2.	Employer's Burden: Articulate Non–Discriminatory Reason for Employment Action	294
3.	Assessing Whether Employer's Stated Reason is Pretextual	294

D. Retaliation Claim Standard 294

1. Plaintiff's Burden: Prima Facie Case 295

a.	First Prong: Engagement in Protected Activity	295
b.	Second Prong: Employer's Awareness of Protected Activity	295
c.	Third Prong: Adverse Employment Action	295
d.	Fourth Prong: Causal Connection between Adverse Action and Protected Activity	296

i.	Temporal Proximity	296
ii.	Similarly Situated Comparators	296

2.	Employer's Burden: Articulate Non–Retaliatory Reason for Employment Action	297
3.	Assessing Whether Employer's Stated Reason is Pretextual	297

V. Application of Law to Facts 297

A. Exhaustion of Administrative Remedies 297

1.	Race and Age Discrimination Claims	297
2.	National Origin Discrimination Claim	298

B. Discrimination Claims 298

1.	Race	298
2.	Age	298

C. Retaliation Claim 298

1.	The Arbitration and Administrative Law Judge Decisions Do Not Sufficiently Consider Background Evidence Underlying Plaintiff's Allegations of Retaliation	298
2.	Plaintiff Has Established a Prima Facie Showing of Retaliation and Sufficiently Alleged Pretext	299

VI. Conclusion 300

I. Introduction

Fun K. Chan delivered mail for the United States Postal Service (“USPS” or “Postal Service”) for years without a record of discipline. He claims that, beginning in 2005, he was dogged by insistent surveillance designed to discover deviations from detailed regulations of postal employees' conduct.

On July 7, 2010, after twenty-two years of service with the Postal Service, plaintiff left his mailbag unattended for approximately ten minutes—a violation of regulations—while he used a restroom. For this deviation he was discharged.

Chan alleges that his supervisors discriminated and retaliated against him. These actions, he claims, were based on his national origin, his race and his age. See Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq. (2014), and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e–16 (2014).

The administrative law judge (“ALJ”) who ruled on Chan's current claims failed to assess extensive evidence of prior retaliation dating back to 2005.

Defendant's motion for summary judgment with respect to plaintiff's present Title VII retaliation claim is denied. Motions for summary judgment regarding plaintiff's national origin, race and age discrimination claims under Title VII and the ADEA are granted.

II. Facts

A. Background

Plaintiff, a citizen of the United States, was born in Hong Kong in 1965, and immigrated to the United States in 1985 at age twenty. (Silverman Decl. Ex. Q 7:7–16, ECF No. 28–15 (“Silverman Chan Dep.”).) His first language is Cantonese, but he is fluent in English. (Chan Decl. ¶ 3, ECF No. 30 (“Chan Decl.”).)

B. Employment

Beginning on October 22, 1988, Chan worked as a permanent employee for USPS for approximately twenty-two years. (Silverman Decl. Ex. T, ECF No. 28–16.) He worked as a mail handler for approximately thirteen years, from 1988–2001, and as a mail carrier for approximately nine years, from 2001–2010. (Silverman Chan Dep. 10:19–14:25.) As a mail handler, plaintiff moved mail inside Postal Service facilities. (Id. at 11:1–12.) As a mail carrier, he delivered mail to homes and other places. (U.S. Postal Service, City Delivery Carriers Duties and Responsibilities, Handbook M–41 (Apr. 5, 2001), http://nalcbytrilogy. com/workplace-issues/resources/manuals/other/m41.pdf.) His twenty-two year employment history is summarized as follows:

• 1988–1995 (seven years): mail handler at College Point and Annex Stations;

• 1995–2001 (six years): mail handler at Whitestone Station;

• 2001 (few months): mail handler and mail carrier at Rego Park Station;

• 2001–2003 (two years): mail carrier at Flushing Station;

• 2003–2010 (seven years): mail carrier at Linden Hill Station.

(Silverman Chan Dep. 11:13–18, 13:24–14:6, 16:9–19, 16:1–25; ALJ Hr'g Tr. June 6, 2012, 40:12–14, Oct. 29, 2014, ECF No. 37.)

C. Timeline of Events Summary

As a mail handler, prior to working at Linden Hill, plaintiff was not, he concedes, subject to discrimination or harassment. (ALJ Hr'g Tr. June 6, 2012, 159:15–16.) During his tenure at Linden Hill, beginning in 2005, up until his official termination date of July 24, 2010, plaintiff filed six complaints with the Postal Service's Equal Employment Opportunity Commission (“EEOC”) office. See infra Part II.D. As the timeline below indicates, USPS attempted to fire Chan on six different occasions between 2008 and 2010. Five of the six notices of removal were not upheld at various stages of the grievance process. The timeline suggests close proximity between the reversal of disciplinary decisions through the grievance process and the issuance of new disciplinary violations. For example, on July 7, 2010, only two days after Chan's April 30, 2010 notice of removal was rescinded, two supervisors made the decision to engage in street supervision of Chan, resulting in his placement on emergency off-duty status and, ultimately, a new notice of removal.

Year 2005

May 12, 2005: Philana Overstreet, Customer Services Supervisor at Linden Hill from 1992 through 2012, issues Chan a letter of warning for returning to the station slightly early and changing into street clothes during “wash up time” before cleaning his station.

October 13, 2005: Chan is accused by Overstreet of leaving behind a bucket of mail at Linden Hill. Chan denies the allegation, noting that Overstreet had no reason to believe that he, as opposed to another carrier, left the bucket.

October 28, 2005: Overstreet and John Zucci, Manager of Customer Services at Linden Hill during a portion of 2005 and 2006, issue Chan a seven-day suspension for failure to follow instructions and for falsifying delivery scans.

November 7, 2005: Overstreet issues Chan a fourteen-day suspension for the October 13, 2005 incident.

December 2, 2005: Chan's November 7, 2005 discipline is rescinded as unsupported.

Year 2006

February 15, 2006: Chan files an informal complaint (“EEOC Compl. 1”) against Overstreet and Zucci related to the May and October 2005 incidents; Chan fills out an “Abusive Supervisor Incident Worksheet,” which he attaches to the complaint.

March 10, 2006: Chan rejects redress mediation, the Postal Service's free mediation program, in connection with EEOC Compl. 1.

April 5, 2006: Chan files a complaint alleging he was harassed by Overstreet when she removed his personal belongings from his workstation and threw certain items, including his allergy medicine, in the garbage. Chan initiates the first step in collective bargaining agreement (“CBA”) grievance proceedings, referred to as a “Step A” proceeding.

April 13, 2006: EEOC Compl. 1 is withdrawn.

May 2, 2006: A Step A meeting regarding Chan's April 5, 2006 complaint is held. The parties have not stated the outcome of this decision in their pleadings.

May 9, 2006: Chan initiates the second step in CBA proceedings, referred to as a “Step B” proceeding, in connection with his April 5, 2006 complaint. The parties have not stated the outcome of this decision in their pleadings.

Year 2007

March 16, 2007: Chan requests and receives assistance on his route because there is ten inches of snow on the ground. He returns somewhat early to the station; Overstreet screams at him, accuses him of requesting assistance unnecessarily, and demands he go to the manager's office. Chan is put on emergency off-duty placement for this conduct. Chan denies ever screaming or yelling at Overstreet.

April 4, 2007: Chan is issued a seven-day suspension based on the events of March 16, 2007. Chan files an anonymous, informal complaint (“EEOC Compl. 2”) against Overstreet on the same day.

April 27, 2007: Chan rejects redress meditation.

April 28, 2007: Informal EEOC Compl. 2 is closed.

May 1, 2007: Chan is

...