The opinion of the court was delivered by: Blanche M. Manning United States District Judge
Former mail carrier Juan Burrell contends he was terminated because he was the victim of retaliation after he filed EEOC complaints based on alleged racial discrimination. The Postal Service, on the other hand, asserts that Mr. Burrell was discharged due to extensive misconduct on the job. The Postal Service's motion for summary judgment is before the court. For the following reasons, the motion is granted.
A. Mr. Burrell's Affidavit
Mr. Burrell submitted an affidavit in support of his opposition to the Postal Service's motion for summary judgment. At his deposition, he declined to specify what his supervisors did that was discriminatory or improper, repeatedly stating, "I do not recall." He also testified that he did not remember any details about the disciplinary actions taken against him. His memory dramatically improved, however, when preparing his affidavit, which sets forth his detailed recollection of events.
The Postal Service seeks to strike the affidavit. It is well established that, "as a general rule, a party may not create an issue of fact by submitting an affidavit whose conclusions contradict prior deposition or other sworn testimony in the absence of newly-discovered evidence or the unmistakable need to clarify prior ambiguous statements." Buckner v. Sam's Club, Inc., 75 F.3d 290, 292 (7th Cir. 1996). Mr. Burrell acknowledges this general rule but claims that he was not required to answer "generic questions at his deposition that had no specificity and were not accompanied by any follow up questions or attempts to refresh his recollection."
The court has reviewed the portions of Mr. Burrell's deposition transcript provided by the parties. It agrees with the Postal Service that the Postal Service's counsel asked straightforward, direct questions and had no duty to repeat questions or follow up after Mr. Burrell unequivocally stated that he had no recollection. Indeed, had counsel done so, the court is confident that Mr. Burrell's counsel would have objected. The court finds that the version of events set forth in Mr. Burrell's affidavit is inadmissible because it contradicts answers given during his deposition. Thus, the court will not consider the affidavit to the extent that it is at odds with Mr. Burrell's deposition. With that understanding, the court turns to the facts.
1. Mr. Burrell's Disciplinary Record
The United States Postal Service employed plaintiff Juan Burrell, an African-American male, as a flex mail carrier from approximately January of 2005 to September of 2007, and as a full-time mail carrier from approximately September of 2007 to April of 2008. Mr. Burrell worked at the Berwyn, Illinois, Post Office for the entire duration of his employment, exclusively working under postmaster William Ruona, and several supervisors, including Joseph Juarez, Ben Wright, Richard Rogers, Lee Junios, Jack Heaney, Ed Kalina, Marcus Neats, Lou Caprio, and Evelyn Blankenship. Customer service supervisors, including Mr. Wright, Mr. Rogers, and Mr. Juarez, were responsible for delivery operations and day-to-day supervision of subordinate employees. Postmaster Ruona was also responsible for day-to-day employee supervision.
During Mr. Burrell's time at the post office, he was disciplined multiple times. On June 11, 2005, supervisor Joseph Juarez issued a letter of warning for failure to follow instructions and for leaving mail unsecured overnight on the dock of the Berwyn Post Office. The union filed a grievance on Mr. Burrell's behalf and the parties agreed that the warning would be removed from Mr. Burrell's records if he did not incur any further discipline in the next six months.
Approximately one month later, on July 12, 2005, Mr. Juarez (with the approval of Postmaster Ruona) gave Mr. Burrell a seven-day suspension after he left mail on a customer's porch instead of placing it in the mailbox. The union filed a grievance, after which the suspension was rescinded and replaced with a "discussion."
Less than a week later, Mr. Burrell was the subject of a complaint by a disabled customer, who asserted that her mail had been left on her porch instead of in her mailbox. On July 16, 2005, Mr. Juarez (with the approval of Postmaster Ruona) issued a fourteen-day suspension for "failure to follow instructions and improper delivery of mail (throwing mail on customer's porch)." The union again filed a grievance, after which the fourteen-day suspension was replaced with a seven-day suspension that was to be removed from Mr. Burrell's file if he incurred no additional discipline for a year.
This did not happen, as the disabled mail customer who had previously complained that Mr. Burrell threw mail on her porch instead of leaving it in the mailbox complained again after Mr. Burrell went to her home to demand that she withdraw her prior complaint. After investigation, on September 8, 2005, Mr. Burrell received another fourteen-day suspension from Mr. Juarez with Postmaster Ruona's approval. The union once again grieved the discipline, after which it was agreed that the discipline would be removed from Mr. Burrell's record if he made it through a full year with no discipline.
On October 22, 2005, Mr. Juarez (with the approval of Postmaster Ruona) issued a notice of removal for failure to follow instructions, and failure to perform assigned duties in a safe manner. This discipline was based on Mr. Burrell's failure to complete deliveries and collections on time. In addition, according to Mr. Juarez, Mr. Burrell had improperly jumped over equipment in the Post Office's workroom in an unsafe manner.
On October 27, 2005, supervisor Ed Kalina issued another notice of removal for unacceptable job performance after Mr. Burrell took too long to complete his route and did not fill out the documentation required for the use of additional time. The union filed a grievance and Mr. Burrell's discipline for the October 22, 2005, and October 27, 2005, incidents were combined into a single thirty-day suspension.
On June 7, 2006, Mr. Burrell received written notice that pursuant to the collective bargaining agreement between the Postal Service and the union, he was being placed in off-duty status, without pay. This discipline followed an incident on Mr. Burrell's route when he was accompanied by supervisors Joseph Juarez and Lou Caprio to investigate a customer problem on Mr. Burrell's route. The two men accompanied Mr. Burrell, who does not appear to have been happy to have two supervisors with him. According to Mr. Juarez and Mr. Caprio, after Mr. Juarez told Mr. Burrell to return to his vehicle because he was yelling in front of customers, Mr. Burrell yelled, "What if I just knock you out? Knock you on your [expletive deleted] and kick the [expletive deleted] out of you!" Df. Exs. 115 & 6. The incident was documented by Mr. Caprio shortly after it happened at the Post Office's request, and the report was kept by the Post Office ...