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Cuttill v. Potter

October 6, 2010

LONNIE KEVIN CUTTILL, PLAINTIFF,
v.
JOHN POTTER, POSTMASTER GENERAL, DEFENDANT.



The opinion of the court was delivered by: David G. Bernthal U.S. Magistrate Judge

ORDER

In August 2008, Plaintiff Lonnie Cuttill, acting pro se, filed a Pro Se Complaint Against Employment Discrimination, Under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-5 (#4) against Defendant John Potter, Postmaster General of the United States Postal Service. In June 2009, he filed an Amended Complaint 08-2199 (#37), alleging that he was denied a promotion because of his age and disability, and that he was subsequently demoted in retaliation for complaining about the discrimination. Federal jurisdiction is based on federal question pursuant to 28 U.S.C. § 1331. The parties have consented to the exercise of jurisdiction by a United States Magistrate Judge.

In May 2010, Defendant filed a Motion for Summary Judgment (#79). In June 2010, Plaintiff filed a Response to Defendants (sic) Motion for Summary Judgment (#94), and Defendant filed a Reply to Cuttill's Response to Defendant's Motion for Summary Judgment (#99). After reviewing the parties' pleadings, memoranda, and evidence, this Court GRANTS Defendant's Motion for Summary Judgment (#79).

I. Background

A. Factual Background

The following discussion summarizes the facts from the evidence presented by the parties. Plaintiff was born in August 1956. He began working for the United States Postal Service in February 1986. In 2000, Plaintiff injured himself at work and he is unable to perform all the duties of a letter carrier. (Pl. Dep., #87, p. 20; Def Ex., #81, p. 15.) He was subsequently classified as a limited duty employee. (Pl. Dep., #87, p. 30; Compl. Ex. 4, #4-1, p. 14.) Plaintiff's initial injury involved his right hand and wrist, and he has had multiple subsequent surgeries for his hand and wrist, as well as his elbow and shoulder. (Pl. Dep., #87, p. 25). Beginning in May 2004, Plaintiff worked as a 204b supervisor at the Decatur Main post office. A 204b position is temporary and may be terminated by management at any time, with or without cause. (Pl. Dep., #80-1, pp. 23-24.)

In February 2007, Plaintiff applied for a promotional opportunity, the Associate Supervisor Program (hereinafter "ASP"). The selection committee included Beverly Adams, Thomas Lister, and Lisa Hartley (hereinafter "the ASP Review Committee" or "the Committee"). At relevant times, neither Hartley nor Adams had met Plaintiff and they did not know his age or that he had any disabilities. (Hartley Decl. , #82, ¶ 22; Adams Decl., #85, ¶ 12.)

The ASP Review Committee evaluated the ASP applicants based on the content of their applications, as well as other criteria. The Committee evaluated the content of the applications in nine separate categories. Six of these categories were scores for essays submitted by applicants, entitled Knowledge Skills and Abilities Statements (hereinafter "KSAs"). If an applicant received a score of zero in any of the nine categories, the Committee automatically eliminated the applicant from consideration. (Hartley Decl., #82, ¶¶ 29-30.) The Committee gave a score of zero to two of Plaintiff's KSAs, the first and sixth essays in the application. (Hartley Decl., #82, ¶ 39.) The Committee ultimately chose other candidates for the two available ASP positions; these candidates are referred to as Applicant No. 5 and Applicant No. 7 in the documents provided to this Court. Applicant No. 5 declined the position, and so the Committee selected Applicant No. 6 as a replacement. (Adams Decl., #85, ¶¶ 44-45.)

In addition to the content of the application, the ASP Review Committee considered three additional factors: whether the applicant had (1) current or live discipline; (2) more than three instances of unscheduled absences from January 1, 2006, to January 1, 2007, not including FMLA-approved leave; or (3) any at-fault accidents from January 1, 2005, to January 1, 2007. (Hartley Decl., #82, ¶¶ 24-27.) Each applicant's current supervisor provided this information to the Committee. Generally, if an applicant's background showed any one of these three things, the applicant would be eliminated from consideration. (Hartley Decl., #82, ¶ 30.) However, Plaintiff states that Defendant allowed some applicants to proceed even though the applicant had one of the problems listed above. As evidence, Plaintiff claims that one applicant had an at-fault accident on file, but the Committee allowed her to participate. (Am. Compl. #37-2, p. 53.)

Jerry Stroisch, Plaintiff's supervisor and Acting Postmaster at the Main Decatur Post Office, provided information to ASP Coordinator Kathy Barcik, indicating that Plaintiff had more than three instances of unscheduled absences during the relevant period. (Barcik Decl., #83, ¶ 27.) In response to this information, Barcik prepared a letter for ASP Review Committee Chairperson Beverly Adams to send to Plaintiff, informing him that he had been disqualified from consideration for the ASP position on this basis. (Barcik Decl., #83 ,¶ 28.) This letter, dated April 5, 2007, states that Plaintiff was disqualified due to reportable unscheduled leave; the letter did not include any additional reasons for Plaintiff's disqualification. (Def. Ex. 6, #84-1, p. 23.)

Plaintiff contested the report of unscheduled absences. He spoke with several people, including Tom Lister, who was the Decatur Postmaster's supervisor and also a member of the ASP Review Committee. Plaintiff believed that his complaints regarding the incorrect attendance report were disregarded. (Def. Ex. 1, #80-2, p. 1.) As a result, on May 14, 2007, Plaintiff filed a complaint with the Equal Employment Office (hereinafter "EEO") against Defendant, stating that he had been discriminated against in violation of ADA because he was denied the ASP promotional opportunity. (Def. Ex. 1, #80-2, p. 1.)

On May 16, 2007, Plaintiff sent an e-mail to Lister and to other Postal Service management personnel regarding the discrepancies in his attendance record and Lister's failure to respond. He also accused an unknown Postal Service employee of "underhanded, immoral, unethical falsification of time records and harassment." (Def. Ex. 16, #80-2, p. 13.) Plaintiff's e-mail stated that he had filed an EEO complaint about his improper disqualification from the ASP. Plaintiff later indicated in his deposition that he believed that Stroisch had intentionally provided the ASP Review Committee with inaccurate information regarding his attendance record.

(Pl. Dep. #80, p. 16; Pl. Dep. #80-1, p. 57.) Plaintiff stated in his deposition that he formed this belief because in March 2007, Stroisch had told him "there is no place in management for disabled people." (Pl. Dep., #80, p. 17.) Plaintiff also believed that some unknown person had intentionally altered the content of at least one of his KSAs in his ASP application. (Pl. Dep. #80-1, pp. 5-6.)

Then, ASP Coordinator Barcik examined Plaintiff's Employee Key Indicator Report and learned that he was correct regarding his attendance record. (Barcik Decl., #83, ¶¶ 29-30.). In a letter dated May 29, 2007, the ASP Review Committee informed Plaintiff that it had reviewed Plaintiff's attendance record, and their review had shown that Stroisch, who had provided information regarding Plaintiff's attendance record to the Committee, had mistakenly thought Plaintiff had more than three unscheduled absences when they were actually scheduled. Thus, Plaintiff was not disqualified from the ASP due to unscheduled leave. However, the letter went on to explain that Plaintiff was also disqualified from the ASP due to receiving a score of zero on two KSAs. Therefore, the ASP Review Committee determined that Plaintiff was still not qualified, even after correcting his attendance records. (Def. Ex. 6, #84-1, p. 26; Adams Decl. #85, ¶ 29.).

Meanwhile, while these events concerning Plaintiff's ASP application were on-going, another series of events took place related to Plaintiff's position as a 204b supervisor. Plaintiff's direct supervisor and acting station manager Kyle Goodwin testified that, on April 12, 2007, he began performing an observation of the downtown station. In the process of observing all employees, Goodwin observed that Plaintiff had "on several instances used vulgar language when talking to carriers and the station manager. He also used inappropriate language when talking to some of the female carriers in the office." (Def. Ex. 8, #86, p. 6.) Goodwin's observation notes, dated April 10, 2007, state as follows: "7:29 [a.m.] Supervisor talking with carriers as they came in. Supervisor used vulgarity with several different carrier [sic] throughout the morning." (Def. Ex. 11, #81, p. 12.) Goodwin later met with Thomas Lister and Jerry Stroisch to discuss his findings. About two weeks later, Lister asked Goodwin to work as acting station manager at the Decatur Main post office. As he began that assignment, he had a conversation with Stroisch and Lister about Plaintiff being a representative of management and about his use of vulgarity on the workroom floor. Goodwin asked them to give him a few weeks to work with Plaintiff in an attempt to improve his behavior. (Stroisch Decl., #81, ¶¶ 7-11.)

On his first day as acting station manager, Goodwin explained to Plaintiff his expectations "particularly in regard to him refraining from any vulgar or offensive language on the workroom floor." (Def. Ex. 2, #81, p. 3.) After this discussion, Goodwin observed that Plaintiff continued to use vulgar and inappropriate language on the workroom floor, particularly with some of the female carriers. He had more discussions with Plaintiff and told him that he needed to stop using inappropriate language. (Def. Ex. 2, #81, p. 4.) Plaintiff testified that Goodwin never talked to him about this. (Pl. Dep. #87-1, p. 1-2.)

At this point, Plaintiff sent the May 16, 2007 e-mail discussed above, accusing an unknown Postal Service employee of "underhanded, immoral, unethical falsification of time records and harassment." (Def. Ex. 16, #80-2, p. 13.) After learning about the e-mail, Stroisch and Goodwin discussed the e-mail, as well as Plaintiff's other conduct that Goodwin had previously observed. Goodwin testified that he recommended to Stroisch that Plaintiff be removed as a 204b supervisor immediately "because of the lack of professionalism and accusatory language [in the e-mail]." (Def. Ex. 2, #81, p. 3.) Stroisch concurred with the recommendation based on the "totally inappropriate language" in the e-mail. (Def. Ex. 2, #81, pp. 4-5.) Stroisch testified that the e-mail affected his decision, but not the fact that Plaintiff had stated in the e-mail that he filed an EEO charge. (Def. Ex. 2, #81, p. 19.) Stroisch thought the e-mail was "highly unprofessional and demonstrated very poor judgment from someone who sought to be a member of management" and he decided to "no longer utilize [Plaintiff] as an Acting Supervisor based on his e-mail and based on his vulgar behavior on the workroom floor that he refused to correct, both of which were highly unprofessional and demonstrated poor judgment." (Stroisch Decl. #81, ¶¶ 13-14.)

Stroisch acknowledged that, as acting postmaster, he was responsible for the ultimate decision to remove Cuttill from 204b. (Def. Ex. 2, #81, p. 17.) Goodwin subsequently informed Plaintiff that his 204b status had been terminated and Plaintiff then returned to his previous position with the Postal Service. (Goodwin Decl. #86, p. 12.)

B. Disputed Facts

The task of determining what proposed facts are disputed has been particularly time-consuming in this case because Plaintiff's responses to Defendant's proposed facts were often not responsive. For example, Defendant's Paragraph 3 states as follows:

Cuttill stated in his deposition that a 204 b supervisor serves at the discretion of management; the 204 b position is a temporary position that can be terminated by management at any time with or without cause; there are various reasons why 204 b managers are terminated; and a person whose 204 b status is terminated can later be brought back as a 204 b supervisor. [Citations omitted.] (#79, ¶ 3.) Although Plaintiff did, in fact, state all this in his deposition, Plaintiff disputed this proposed fact because "Defendant improperly states the regulation controlling temporary assignments to non-bargaining positions." (#94, p. 3.) This does not create a genuine dispute as to the proposed fact.

As another example, Defendant's Paragraph 6 states as follows: "Cuttill, in his deposition, stated that management relied upon Cuttill to exercise good judgment as a supervisor, and that management looked for a 204b supervisor who would treat people with respect and with dignity and not accuse people of things. [Citations omitted.]" Again, Plaintiff's deposition testimony is consistent with this statement. Nevertheless, Plaintiff disputed this fact, stating as follows:

Postal handbook M-39, Management of Delivery Services Section 111 describes Basic Requirements what is expected of its managers. M39 Section 115 describes the Discipline (act of accusing others) expected of managers along with the subsections defining Using People Effectively, Obligation to Employees and Maintaining Mutual Respect Atmosphere. Many managers, plaintiff included, utilized, but not limited to, notebooks/green books/computer notes to retain information of actions taken when accusing employees of anything. [Citations omitted.] (#94, p. 3.) Thus, Plaintiff's response does not effectively challenge Defendant's proposed fact.

Many of Plaintiff's objections to Defendant's proposed facts are similarly unresponsive, essentially presenting argument instead of evidence that contradicts Defendant's statements. A proposed fact is not in dispute simply because a party lists that fact as "disputed." Furthermore, argument relating to the significance of a proposed fact is not sufficient to raise a genuine dispute as to the fact. As a result, many of Plaintiff's responses do not adequately challenge the proposed fact. The Court has carefully reviewed the evidence, including both parties' references to particular testimony. Where the Court has determined from its review that Plaintiff has raised a genuine issue as to proposed facts, the Court has construed the facts and drawn all inferences in Plaintiff's favor. Otherwise, the Court considers the proposed fact to be undisputed.

II. Legal Standard

A court will grant summary judgment "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." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In ruling on a motion for summary judgment, the Court must decide, based on admissible evidence, whether any material factual dispute exists that requires a trial. Waldridge v Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). The party seeking summary judgment bears the initial burden of showing that no such issue of material fact exists. Celotex, 477 U.S. at 323.

The Court must draw all inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the nonmoving party may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; rather, he must go beyond the pleadings and support his contentions with proper documentary evidence. Celotex, 477 U.S. at 322-323. Because the purpose of summary judgment is to isolate and dispose of factually-unsupported claims, the nonmoving party must respond to the motion with evidence setting forth specific facts showing that there is a genuine issue for trial. See FED. R. CIV. P. 56(e); Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir. 2001). To successfully oppose a motion for summary judgment, the moving party must do more than raise a "metaphysical doubt" as to the material facts, and instead must present definite, competent evidence to rebut the motion. Wolf v. Nw. Ind. Symphony Soc'y, 250 F.3d 1136, 1141 (7th Cir. 2001); Albiero, 246 F.3d at 932.

The Court is cognizant of its special obligation with respect to a pro se litigant. The Seventh Circuit has described a court's role as insuring that the claims of a pro se litigant are given fair and meaningful consideration. Madyun v. Thompson, 657 F.2d 868, 876 (7th Cir. 1981). A pro se plaintiff is entitled to a great deal of latitude where procedural requirements are concerned. Haines v. Kerner, 404 U.S. 519, 519-20 (1972). In the Central District of Illinois, a pro se plaintiff need not comply with the specific technical requirements described in Rule 7.1(D) of the Local Rules when responding to a summary judgment motion. CDIL-LR 7.1(D)(6). Nevertheless, to avoid summary judgment, the plaintiff must provide ...


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