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Cupil v. Potter

March 16, 2007

FORREST CUPIL, PLAINTIFF,
v.
JOHN E. POTTER, POSTMASTER GENERAL, DEFENDANT.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

This is an action for sex discrimination and retaliation brought under Title VII of the Civil Rights Act of 1964 by Forrest Cupil ("Cupil") against his former employer, John E. Potter ("Potter"), the Postmaster General of the United States. Cupil appears pro se. Potter and Cupil have filed cross-motions for summary judgment.*fn1 For the following reasons, I grant Potter's motion and deny Cupil's motion.

I.

Summary judgment is appropriate where the record and affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 694 (7th Cir. 2006) (citing FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). If the moving party meets this burden, the non-moving party must then go beyond the pleadings and set forth specific facts showing that there is a genuine issue for trial. Id. at 694 (citing FED. R. CIV. P. 56(e); Becker v. Tenenbaum-Hill Assocs., Inc., 914 F.2d 107, 110 (7th Cir. 1990)). The existence of merely a scintilla of evidence in support of the non-moving party's position is insufficient; there must be evidence on which the jury could reasonably find for the non-moving party. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). I must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party. Anderson, 477 U.S. at 255.

Taking the facts in the light most favorable to Cupil, the following are the facts relevant to the present motions:*fn2 Cupil was previously employed by the Postal Service as a maintenance mechanic in a postal facility in Chicago (the "Chicago facility"). During his employment the Postal Service subjected Cupil to several disciplinary actions. On November 30, 2002, the Postal Service issued Cupil an "emergency placement" in off-duty status for an offense the Postal Service termed as "conduct unbecoming a postal employee." According to incident reports, the Postal Service placed Cupil on such status because he and another postal employee, "S.H." had made cross-complaints accusing each other of making threats. Cupil contends that he contacted postal police after S.H. contacted him at home and threatened him; he disputes that he threatened S.H.

On December 13, 2002, the Postal Service issued Cupil a memorandum entitled a "Zero Tolerance Policy Reminder." The memorandum instructed Cupil not to have contact with S.H. and to have no personal contact with any female employee at the Chicago facility while on postal premises. Cupil, while acknowledging that he received this memorandum, denies he did "bad things to females at work." He also claims that after he received this memorandum he complained to his supervisor, Michael Penna ("Penna"), that he could not comply with this memorandum because his job, in which he was responsible to find and analyze equipment failures, required him to communicate with female workers. Cupil contends that when he expressed these concerns Penna told him that he "talked to Andy about it, forget about it and just do your job."

On January 29, 2003, Cupil received a "letter of Warning" indicating that Cupil had failed to maintain regular attendance, and listed numerous days that the Postal Service considered to be "unscheduled absences." On February 13, 2003, Cupil received a seven-day "no time off" suspension (meaning Cupil did not actually serve any time off) for separate unexcused absences. Cupil has presented documents he argues demonstrate that some of these days are legal sick days, and he generally contends that some of the days mentioned on January 29 and February 13 are duplicative of one another.

On February 14, 2003, the Postal Service issued Cupil a memorandum entitled a "Official Job Discussion." In the memorandum, John Almawi ("Almawi") stated that on February 14 at about midnight, Almawi attempted to page Cupil by radio and on the loud speaker, but Cupil did not respond. Almawi further stated that he found Cupil in a break area not performing his assigned duty. Cupil contends that he explained to Almawi that his radio was not functioning and that he could not hear the loud speaker from outside, where he was smoking.

On March 26, 2003, the Postal Service issued Cupil another emergency placement in off-duty status for "conduct unbecoming a postal employee." According to the Postal Service, it issued this placement because of an incident that day in which Cupil's supervisor, Penna, claimed that Cupil had addressed him in a manner in which he felt threatened. After Penna contacted his manager both agreed that Cupil should receive an emergency suspension. They told Cupil that he was being given an emergency suspension because of his threatening manner with Penna and because they smelled alcohol on his breath. According to the Postal Service, they told Cupil that he could not leave with his car but that they would pay for a cab for him. Cupil refused the cab ride and left the Chicago facility without his vehicle. On April 9, 2003, the Postal Service issued Cupil a fourteen-day suspension as discipline for this incident.

Not surprisingly, Cupil denies this account. He states that he approached Penna that day to complain that another employee had been chosen for training in violation of the union contract, and that Penna became upset with Cupil and walked away "with a very angry look on his face." Cupil states that he was then punished more severely than other employees who were also found to have committed "conduct unbecoming a postal employee" and that he was forced to leave the property without his car. Cupil further states that he was disciplined for the March 26, 2003 incident by two and one-half days without pay and by the theft of his car so that the April 9 suspension was "discipline for being disciplined." Finally, Cupil states, without any supporting documentation, that he never served a fourteen-day suspension so that the April 9, 2003 "action is not supposed to be in file."

On March 30, 2003, the Postal Service issued Cupil a monthly review stating that he had "very poor attendance," that he "often requires assistance" to complete assigned tasks and that he had difficulty getting along with co-workers. Cupil contends that this review was pretextual, and presents a copy of a review he received on January 9, 2003 that reflects that his attendance "meets requirements," that he completes assigned tasks timely without assistance, and that he gets along with co-workers and supervisors. The January 9 review also states, however, that his attendance was very good "until emergency placement" and that his attendance "needs improvement."

Cupil subsequently initiated the Equal Employment Opportunity ("EEO") process by filing, on April 25, 2003, a document entitled "Information for Pre-complaint Counseling." In this document he stated that he was alleging he had been discriminated against on the basis of "Sex-Male" and listed five incidents as the actions that prompted him to seek EEO counseling, including (1) the placement on off-duty status on March 26, 2003; (2) the April 9, 2003 suspension; (3) the February 13, 2003 notice of suspension; (4) the December 13, 2002 "Zero Tolerance Policy Reminder" and (5) his "removal from property" on November 30, 2002, for "calling postal police" to "assist in threat complaint." The Postal Service informed Cupil, through a letter dated May 27, 2003, that it had not resolved his complaint, so he was entitled to file a formal administrative complaint. Cupil subsequently filed a formal EEO complaint. In that complaint, he named Cornell Brooks ("Brooks") as the person who took the action he alleged was discriminatory. Although Cupil contends that he brought this complaint alleging retaliation as well as discrimination, in the section of the complaint where Cupil could check a box to describe the type of discrimination he was alleging, he marked the box for "sex" but did not mark the box for "retaliation." He described the discrimination he allegedly experienced as follows:

On 11-30-02 Cornell Brooks found that I was having a relationship with [S.H.]. We were keeping the relationship private. Mr. Brooks became outraged and upset, as he had been trying to establish a sexual relationship with [S.H.]. This has been verified by others. I had a spotless record until then. My record has been illegally ruined; and I have been harassed since. I have been told to speak to no females at work and been intimidated by other management employees. This harassment and discrimination is based on sex, Mr. Brooks' sexual desires. Jealous behavior on the part of Mr. Brooks is no reason to ruin my career.

In a letter dated June 19, 2003, the Postal Service notified Cupil that, although it was investigating his complaints concerning the events on March 26, 2003 and April 9, 2003, it was dismissing his remaining claims as untimely since they occurred more than 45 days before Cupil originally requested EEO counseling. The EEO subsequently investigated the two remaining complaints and, on ...


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