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Bennie Gillespie v. John E. Potter

August 10, 2011

BENNIE GILLESPIE, PLAINTIFF,
v.
JOHN E. POTTER, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Bennie Gillespie ("Gillespie") filed suit against John Potter, the Postmaster General of the United States Post Office ("Postal Service"), alleging that he was discriminated against based on his age, color, race, and sex in violation of the Age Discrimination Employment Act ("ADEA") and Title VII of the Civil Rights Act of 1964 ("Title VII"); and that he was retaliated against when the Postal Service refused to reappoint him as a transitional employee. The Postal Service moves for summary judgment. Because the record before the Court fails to establish that the Postal Service discriminated or retaliated against Gillespie, the Motion for Summary Judgment is granted.

STATEMENT OF UNDISPUTED FACTS*fn1

Local Rule 56.1 provides that "[a]ll material facts set forth in the statement required of the moving party will be deemed admitted unless controverted by the statement of the opposing party."

L.R. 56.1(b)(3)(C). As the moving party, the Postal Service submitted material facts supported by citations to portions of the record and affidavits, as Rule 56.1(a) requires. Gillespie responded to each of the Postal Service's 56.1 Statement of Material Facts, including citations to the record-by Exhibit number, not by page or line number-for several, but not all, of those facts that he disputed. Gillespie did not present additional material facts of his own.

The Court treats Gillespie's Memorandum in Support of Plaintiff's Right to a Trial by Jury as a response brief and notes that his memorandum containing five numbered points-Introduction; Work Performance; Accident; Union and Management; and Legal-does not contain any specific citations to the record. See U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("Judges are not like pigs, hunting for truffles buried in briefs."). Therefore, the Court's review of Potter's claim will be confined to the facts set forth in the Postal Service's Rule 56.1 statements and Gillespie's responses that contain adequate citations to the record. See Koszola v. Bd. of Educ. of City of Chi., 385 F.3d 1104, 1108-09 (7th Cir. 2004); see Metro. Life Ins. Co. v. Johnson, 297 F.3d 558, 562 (7th Cir. 2002) (Seventh Circuit has "consistently and repeatedly upheld a district court's discretion to require strict compliance with its local rules governing summary judgment.").

A. Employment as a Transitional Employee

The Postal Service employed Gillespie, a 49-year old African American male, as a transitional employee city carrier assigned to the Park Ride, Illinois Post Office beginning on March 31, 2008. (P.S. ¶¶ 1, 6.) Transitional employees are non-career employees appointed for a term not to exceed 360 days and cannot be reappointed without a break in service. (P.S. ¶ 4.) While transitional employees can be reappointed to additional terms, there is no provision in the National Agreement between the National Association of Letter Carriers and the Postal Service providing for or creating a right or entitlement to reappointment for transitional employees. (P.S. ¶ 5.)

As a transitional employee, Gillespie was evaluated by John Gattuso ("Gattuso"), the Supervisor of Customer Service at the Park Ridge Post Office. (P.S. ¶ 13.) Gattuso gave Gillespie "unacceptable" ratings for two different rating periods relating to Gillespie's work quality. (P.S. ¶ 14.) Gattuso also gave Gillespie satisfactory marks on his most recent evaluation on May 31, 2008.

(G. Resp. ¶ 14.) Thomas Hill ("Hill"), a supervisor at the Park Ridge Post Office, documented an instance on January 16, 2009 where Gillespie called at 4:49 p.m. to say that he had a collection and three relays left to do; Hill instructed Gillespie to finish only the three relays, expecting that to take under an hour; Gillespie, however, did not return for three more hours.*fn2 (P.S. ¶ 15.) On many occasions, Gattuso observed Gillespie calling Hill to request assistance because Gillespie was unable to finish his assignments. (P.S. ¶ 16.) Julian Singleton ("Singleton"), a Supervisor of Customer Service at the Park Ridge Post Office, along with Gattuso, performed street supervisions of Gillespie. (P.S. ¶ 17.) Singleton also observed Gillespie engaging in unsafe practices that Gillespie was notified of.*fn3 (Id.)

On October 22, 2008, Gillespie reported to Gattuso that he had fallen down and hurt both of his wrists about a month earlier but that Gillespie had not seen a doctor or reported the incident. (P.S. ¶ 18.) Gattuso learned that Gillespie had previously been instructed to report his accident to Hill but that he had failed to do so. (P.S. ¶ 19.) Consequently, the Postal Service issued Gillespie a letter of warning for failure to report his accident as instructed.*fn4 (Id.)

Gillespie's 360-day term as a transitional employee expired on March 25, 2009 and on March 30, 2009, the Postal Service notified Gillespie that he would not be reappointed for an additional term. (P.S. ¶¶ 7-8.) The decision not to reappoint Gillespie was made by Postmaster Ruby Helen Brooks ("Brooks") after she considered Gillespie's work history-specifically, Gillespie's work performance, failure to follow instructions, attendance, and failure to report an accident-and consulted with her staff.*fn5 (P.S. ¶¶ 11, 12; G. Resp. ¶¶ 9, 11-12.)

B. EEOC Complaint

Gillespie filed an EEOC Complaint of Discrimination on April 26, 2009, alleging discrimination based on race, sex, and age as well as retaliation. (P.S. ΒΆ 20.) Gillespie added a claim of discrimination based on color when he ...


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