Agravante v. Patrick R. Donahoe, Postmaster General United States Postal Service

Filing 38

MEMORANDUM Opinion and Order: The Court grants in part and denies in part defendant's motion for summary judgment 26 . Defendant is granted summary judgment on Counts I and II. Signed by the Honorable George M. Marovich on 5/5/2015:Mailed notice(clw, ) Modified on 5/5/2015 (clw, ).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JUN P. AGRAVANTE,
Plaintiff,
v.
JOHN E. POTTER, POSTMASTER
GENERAL OF THE
UNITED STATES POSTAL SERVICE,
Defendant.

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) Case No. 13 C 3540
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) Judge George M. Marovich
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MEMORANDUM OPINION AND ORDER
After his employment was terminated, plaintiff Jun P. Agravante (“Agravante”) filed suit
against defendant John E. Potter, Postmaster General of the United States Postal Service
(“defendant”). Defendant has filed a motion for summary judgment. For the reasons set forth
below, the Court grants in part and denies in part defendant’s motion for summary judgment.
I.

Background
Local Rule 56.1 outlines the requirements for the introduction of facts parties would like

considered in connection with a motion for summary judgment. The Court enforces Local Rule
56.1 strictly. Facts that are argued but do not conform with the rule are not considered by the
Court. For example, facts included in a party’s brief but not in its statement of facts are not
considered by the Court because to do so would rob the other party of the opportunity to show
that such facts are disputed. Where one party supports a fact with admissible evidence and the
other party fails to controvert the fact with citation to admissible evidence, the Court deems the
fact admitted. See Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817-818 (7th Cir.
2004). This does not, however, absolve the party putting forth the fact of its duty to support the
fact with admissible evidence. See Keeton v. Morningstar, Inc., 667 F.3d 877, 880 (7th Cir.

2012). Asserted “facts” not supported by specific pages of deposition testimony, documents,
affidavits or other evidence admissible for summary judgment purposes are not considered by
the Court.
The following facts are undisputed unless otherwise noted.
Plaintiff Agravante, an Asian man, began his second term of employment with the postal
service in 1989, when the postal service hired him as a letter carrier in Wheeling, Illinois. His
first term of employment began in 1986, but he was soon discharged for poor performance.
After he filed a complaint, the postal service allowed him to resign, which meant he could apply
again in the future for employment. He did.
In 1993, Agravante transferred to the Wood Dale Post Office. By 2005, Agravante’s
supervisor at Wood Dale was Kusum Puri (“Puri”). Prior to 2010, Puri never disciplined
Agravante. The events that lead to this lawsuit began in late 2009.
In October 2009, James Bailey (“Bailey”) filed an internal EEO complaint. Bailey
alleged that Puri had discriminated against him on the basis of his race and sex. Agravante
participated in Bailey’s EEO complaint by providing a written statement in support of Bailey’s
claim.
About a year later, Agravante began having performance problems. In September 2010,
Puri issued Agravante a letter of warning. The reason for the letter of warning was that
Agravante had failed to scan mail at five locations and that he failed to take responsibility for his
mistakes. A few months later, in January 2011, Puri suspended Agravante for seven days,
because he delivered a piece of express mail to the wrong address. The postal service discovered
the problem when it was notified by the customer who received the mail.
In June 2011, Marcus Collins (who was, by this time, a supervisor) suspended Agravante
for 14 days. Collins signed the notice of suspension as the supervisor, and Puri, who had

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become the Officer-in-Charge of the Wood Dale Post Office, signed the notice as the
“Reviewing and Concurring Official.” The reason for the suspension was that the postal service
discovered that a package Agravante scanned and certified as delivered was still at the Wood
Dale Post Office. Agravante’s supervisors were not satisfied with Agravante’s explanation,
which was that he had accidentally scanned it and then forgot to deliver it.
Agravante, displeased with his fourteen-day suspension, filed an internal EEO complaint.
Agravante’s complaint was mediated on July 28, 2011. Agravante has put forth evidence (which
defendant disputes) that, at the mediation, Puri stated that she was upset with Agravante because
he had “turned his back on her” by providing written support for Bailey’s EEO claim (back in
October 2009) and had been ungrateful to her. At the mediation, the parties agreed to reduce the
suspension from fourteen days to seven days.
Agravante was in trouble again in February 2012, when Collins suspended him for
fourteen days. This time, Collins charged Agravante with failing to deliver a tub of priority mail
before departing for a week of annual leave. Collins, as supervisor, signed the notice of
suspension. Dawn Ellison, who was the Officer-in-Charge of the Wood Dale Post Office at the
time, signed as the “Reviewing and Concurring Official.”
In May 2012, Agravante and Puri had a conversation about headphones, but they
disagree about the content of the conversation. The parties agree that, generally, the postal
service allowed employees to use their headphones to listen to music while they worked.
Agravante has put forth disputed evidence that on May 12, 2012, Puri told him that he could not
listen to his headphones at work, because he was not listening to her service talks. Defendant
has put forth evidence that Puri told Agravante he could not use his headphones during her
service talks. At the time of the conversation, Agravante could see a white employee wearing

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headphones. Two days later, Puri raised her voice to Agravante and accused him of failing to
deliver a piece of certified mail.
On June 19, 2012, Collins issued Agravante a notice of removal (i.e., discharge).
Collins, as Agravante’s supervisor, signed the notice of removal. Puri, as Officer-in-Charge of
the Wood Dale Post Office, also signed the notice as the reviewing and concurring officer. The
reason for the notice of removal was discarding for destruction mail marked “return to sender.”
Neither Puri nor Collins witnessed Agravante put the mail in the discard tub. Agravante believes
the mail may have fallen into his discard tub accidentally.
Agravante filed an internal EEO complaint and a grievance through his union. With
respect to the grievance, the dispute resolution team sustained defendant’s decision, explaining
that “the Union did not provide any valid reasons for the grievant’s actions and the grievant did
act as charged.” Still, the dispute resolution team recommended that Agravante be given one last
chance. Defendant signed a last-chance agreement that reduced Agravante’s punishment from
discharge to a 30-day suspension. Because Agravante did not sign the last-chance agreement,
Agravante lost his job, effective August 28, 2012.
Other letter carriers have been found to have discarded mail but have not been disciplined
with discharge. Chuck Ventralla and Ed Scheriner (both white men), for example, were found to
have improperly placed standard mail in a discard tub in July 2012. Defendant disciplined each
with a “job discussion.” LaTanya Rogers (a woman) was issued a letter of warning (which was
later reduced to a “job discussion” during the grievance process) for twice placing standard mail
in the discard tub. These others did not have the same history of infractions that Agravante had.
Agravante has put forth no evidence of Chuck Ventralla’s, Ed Scheriner’s or LaTanya Rogers’s
histories of prior infractions.

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After exhausting his internal remedies, Agravante brought his claims to this Court, and
defendant moved for summary judgment.
II.

Summary Judgment Standard
Summary judgment shall be granted when “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When
making such a determination, the Court must construe the evidence and make all reasonable
inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247 (1986). Summary judgment is appropriate, however, when the non-moving party “fails to
make a showing sufficient to establish the existence of an element essential to the party’s case,
and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). “A genuine issue of material fact arises only if sufficient evidence favoring the
nonmoving party exists to permit a jury to return a verdict for that party.” Brummett v. Sinclair
Broadcast Group, Inc., 414 F.3d 686, 692 (7th Cir. 2005).
III.

Discussion
Agravante filed a three-count complaint. In Count I, Agravante alleges that defendant

subjected him to a hostile environment and to disparate treatment on the basis of his race. In
Count II, Agravante alleges that defendant subjected him to disparate treatment on the basis of
his sex. In Count III, Agravante asserts that defendant retaliated against him due to his prior
participation in conduct protected by Title VII of the Civil Rights Act of 1964.
A.

Agravante’s disparate treatment claims

In Counts I and II, respectively, Agravante claims that he was subjected to disparate
treatment on the basis of his race and sex. Pursuant to Title VII of the Civil Rights Act of 1964,
it “shall be an unlawful employment practice for an employer–(1) to fail or refuse to hire or to

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discharge any individual, or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). To be actionable as
discrimination under Title VII, a difference in treatment must be material. Minor v. Centorcor,
Inc., 457 F.3d 632, 634 (7th Cir. 2006).
Agravante claims that he was discriminated against on the basis of his race and sex when
defendant terminated his employment. Agravante does not argue that he has any direct evidence
of discrimination on the basis of his race or sex. Instead, Agravante argues that he can defeat
summary judgment using the indirect method. To make out a prima facie case of discrimination,
a plaintiff must put forth evidence that: (1) he is a member of a protected class; (2) he was
meeting the employer’s legitimate expectations; (3) he suffered an adverse employment action;
and (4) a similarly-situated employee not in his protected class was treated more favorably.
Alexander v. Casino Queen, Inc., 739 F.3d 972, 979 (7th Cir. 2014). The “burden of establishing
a prima facie case of disparate treatment is not onerous.” Texas Dep’t of Comm. Affairs v.
Burdine, 450 U.S. 248, 253 (1981). It requires a plaintiff to show that he was “rejected under
circumstances which give rise to an inference of unlawful discrimination,” and the “standard is
not inflexible” because facts vary in different cases. Burdine, 450 U.S. at 253 and n.6. If
plaintiff makes out a prima facie case of race or sex discrimination, defendant has the light
burden of articulating a legitimate, non-discriminatory reason for the difference in treatment.
Alexander, 739 F.3d at 979. If defendant does so, plaintiff has the burden to show that the
proffered reason was merely a pretext for race or sex discrimination. Id.

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Here, the Court will assume, without deciding, that plaintiff can make out a prima facie
case of discrimination on the basis of sex and race. The infraction for which Agravante was
discharged was discarding mail marked “return to sender.” Agravante has put forth evidence
that other employees outside of his protected classes engaged in the same infraction but were
treated more favorably. For example, a woman, LaTanya Rogers, placed standard mail in a
discard pile on two occasions. She was disciplined with a letter of warning, which was reduced
to a “job discussion” during the grievance process. Two white employees, Chuck Ventralla and
Ed Scheriner, placed standard mail in a discard tub in July 2012. Each was given a “job
discussion,” while Agravante was discharged.
Defendant has articulated a legitimate, non-discriminatory reason for the difference in
treatment: the others did not have the history of infractions that Agravante had. Agravante had
been disciplined in the past. To survive summary judgment, Agravante must put forth evidence
that the explanation is a pretext for discrimination. A pretext is a dishonest explanation, rather
than an error. See Bodenstab v. County of Cook, 569 F.3d 651, 657 (7th Cir. 2009). To show
pretext, Agravante “must establish that the explanation is a lie, which permits a jury to infer that
the tale has been concocted to conceal an unlawful truth. It is not enough to demonstrate that the
employer was mistaken, inconsiderate, short-fused, or otherwise benighted; none of those
possibilities violates federal law. Poor personnel management receives its comeuppance in the
market rather than the courts.” Yindee v. CCH Inc., 458 F.3d 599, 602 (7th Cir. 2006) (internal
citations omitted).
Agravante’s pretext argument is not compelling. Agravante argues that defendant’s
reason must be a lie, because defendant treated other employees more favorably. This is

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undisputed, but what Agravante must show is not that a difference in treatment existed but rather
that the reason for the difference in treatment is a pretext for discrimination. Defendant’s reason
is that the other employees had not engaged in prior misconduct to the same extent as Agravante.
Agravante had previously been disciplined with a letter of warning in January 2011 for failing to
scan mail; a seven-day suspension in January 2011 for delivering express mail to the wrong
address; a fourteen-day suspension (later reduced to seven days after he filed a grievance) in
June 2011 for scanning and certifying as delivered a package that was later found in the Wood
Dale post office; and a fourteen-day suspension in February 2012 for failing to deliver a tub of
priority mail before leaving for vacation. Agravante has put forth no evidence that would
suggest that either Chuck Ventralla, LaTanya Rogers or Ed Scheriner had previously engaged in
the number or types of infractions that Agravante had, such that they, too, should have been
punished with more progressive discipline. In short, Agravante has failed to put forth evidence
that suggests defendant’s reason for subjecting him to harsher discipline than comparable
employees was a pretext for sex or race discrimination.
Defendant is entitled to judgment as a matter of law on Count II. The Court grants
defendant summary judgment on Count II. Defendant is entitled to judgment as a matter of law
on the portion of Count I that alleges disparate treatment.
B.

Agravante’s harassment claim

The other claim Agravante asserts in Count I is that he was subjected to a hostile
environment on the basis of his race, in violation of Title VII of the Civil Rights Act of 1964.
An employer violates Title VII by subjecting an employee to harassment that is
sufficiently severe or pervasive that it alters the terms and conditions of employment. Defendant

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is liable for creating a hostile work environment if Agravante can show: “that [his] work
environment was both objectively and subjectively offensive; (2) that the harassment was based
on [his protected class]; (3) that the conduct was either severe or pervasive; and (4) that there is a
basis for employer liability.” Vance v. Ball State Univ., 646 F.3d 461, 469 (7th Cir. 2011). In
considering whether the environment is hostile, a court is to consider the “totality of the
circumstances[,]” including “‘the frequency of the discriminatory conduct; its severity; whether
it is physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.’” Ellis v. CCA of Tenn. LLC, 650
F.3d 640, 647 (7th Cir. 2011) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787-88
(1998)). In addition, to “qualify as a hostile work environment, the conduct at issue must be
severe or pervasive enough to cause psychological injury.” Ellis, 650 F.3d at 647.
In attempting to survive defendant’s motion for summary judgment on his harassment
claim, Agravante points to four instances he believes were humiliating. First, on one occasion,
Puri told him not to wear his headphones when he could see that a white employee was wearing
headphones. On two occasions, Puri raised her voice to Agravante and accused him of
mishandling mail. Finally, on one occasion, Puri required Agravante to deliver more mail than
other carriers. It is clear, judging plaintiff’s evidence in its entirety, that no reasonable jury
could conclude that Agravante was a victim of racial harassment. Not one of these instances was
severe, and, together, they are not pervasive. Nor are they objectively offensive. Although
raising one’s voice to a subordinate wins no accolades, Title VII is not a general civility code.
Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998).

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No reasonable jury could conclude that Agravante was subjected to an objectively hostile
environment on the basis of his race. Defendant is entitled to judgment as a matter of law on
Count I. The Court grants defendant summary judgment on Count I.
C.

Agravante’s retaliation claim

In Count III, Agravante claims that he was retaliated against in violation of Title VII.
Defendant moves for summary judgment on this count as well.
Agravante first attempts to defeat summary judgment using the direct method of
establishing retaliation. To establish retaliation under the direct method, Agravante must show:
(1) he engaged in protected conduct; (2) he suffered a material, adverse action; and (3) a causal
connection between the two. Coleman v. Donahue, 667 F.3d 835, 859 (7th Cir. 2012).
“Causality is typically one of the highest hurdles retaliation plaintiffs must clear.” Benuzzi v.
Board of Ed. of Chi., 647 F.3d 652, 665 (7th Cir. 2011). A Title VII retaliation claim requires
“proof that the desire to retaliate was the but-for cause of the challenged employment action.”
University of Texas Southwestern Medical Center, 133 S.Ct. 2517, 2528 (2013).
Agravante has put forth evidence that he engaged in protected conduct a number of times
during his tenure at the postal service. To begin with, in late 2009, Agravante provided a written
statement in support of his co-worker’s claim that Puri had discriminated against him on the
basis of his race and sex. Next, after receiving a fourteen-day suspension in June 2011,
Agravante filed an internal EEO complaint. Agravante has also put forth evidence of a causal
connection between his EEO actions and his discipline. Specifically, Agravante has put forth
(disputed) evidence that, at the mediation for his June 2011 EEO complaint, Puri stated that
Agravante had “turned his back” on her when he wrote a letter of support for the co-worker’s

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EEO complaint. That evidence suggests that retaliation may have been the reason Puri approved
the June 2011 suspension. A year later, Puri approved Collins’s decision to discharge
Agravante. Given that discipline at the postal service is progressive, the fact that retaliation may
have been a factor in an earlier step means retaliation may have been the reason Agravante
reached the discharge step sooner rather than later. This is evidence from which a reasonable
jury could find for Agravante on his retaliation claim. Defendant argues that Puri did not make
the comments at the July 2011 mediation, but that is a question for the jury. Defendant also
argues that Puri was not the initial decision maker with respect to Agravante’s discharge and that
a year had passed between the mediation and the discharge. The jury may find those arguments
compelling and render a verdict for defendant, but those are issues for the jury.
Defendant’s motion for summary judgment is denied as to Count III.
IV.

Conclusion
For the reasons set forth above, the Court grants in part and denies in part defendant’s

motion for summary judgment. Defendant is granted summary judgment on Counts I and II.
ENTER:

George M. Marovich
United States District Judge
DATED: May 5, 2015

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