Chan v. Donahoe

Filing 48

MEMORANDUM, ORDER & JUDGMENT granting in part and denying in part 28 Motion for Summary Judgment. Defendant's motions for summary judgment regarding plaintiff's national origin, race and age discrimination claims are granted. The Po stmaster General's motion for summary judgment with respect to retaliation is denied. Trial shall start on March 9, 2015. A jury will be selected by a magistrate judge. In limine motions will be heard on March 2, 2015 at 10:00 a.m. By February 23, 2015, the parties shall each submit to the court a full proposed jury charge and verdict sheet, in limine motions, and any supporting briefs. They shall exchange and file with the court: (1) lists of pre-marked exhibits proposed for use at trial, together with copies of all exhibits; (2) lists of potential witnesses together with brief summaries of proposed testimony; and (3) stipulations with respect to all undisputed facts. Any disputes related to briefing schedules or discovery are respectfully referred to the magistrate judge. (Jury Trial set for 3/9/2015 in Courtroom 10B South before Judge Jack B. Weinstein.) Ordered by Judge Jack B. Weinstein on 12/4/2014. (Barrett, C)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
FUN K. CHAN,

MEMORANDUM, ORDER &
JUDGMENT
Plaintiff,
13-CV-2599

- against PATRICK R. DONAHOE
Postmaster General of the United States Postal
Service,
Defendant.

Parties

Appearances

Fun K. Chan

Jonathan T. Trexier
Trexier Law, P.C.
10 East 39th Street, Suite 1208
New York, NY 10016
[phone]
jtrexlerjtrexlerlaw.com

Patrick R. Donahoe
Postmaster General of the United
States Postal Service

Matthew Silverman
United States Attorney's Office
E.D.N.Y. Civil Division
271 Cadman Plaza East, 7th Floor
Brooklyn, NY 11201
[phone]
[e-mail]

JACK B. WEINSTEIN, Senior United States District Judge:
Table of Contents

Introduction.......................................................................................................3
Facts................................................................................................................... 4
Background........................................................................................................
A.
Employment....................................................................................................... 4
B.
Timeline of Events Summary............................................................................ 5
C.
Plaintiffs EEOC Actions................................................................................ 13
D.
1. EEOCComplaint 1........................................................................................... 15
Events Preceding Complaint....................................................................... 15
a.
Complaint.................................................................................................... 16
b.
2. EEOCComplaint 2........................................................................................... 16
Events Preceding Complaint ....................................................................... 16
a.
Complaint.................................................................................................... 16
b.
3. EEOCComplaint 3........................................................................................... 17
Events Preceding Complaint ....................................................................... 17
a.
Complaint.................................................................................................... 17
b.
EEOCComplaint 4........................................................................................... 18
4.
Events Preceding Complaint....................................................................... 18
a.
i. Plaintiff's July 16, 2007 Suspension........................................................... 18
ii. Plaintiff's January 17, 2008 Suspension..................................................... 18
iii. Plaintiff's March 22, 2008 Notice of Removal........................................... 18
iv. Plaintiff's February 2, 2009 Notice of Removal......................................... 19
v. Plaintiff's Supervisor Wook Hong Issued Letter of Warning After He
Curses at Plaintiff and Threatens to Fire Him............................................. 20
Complaint.................................................................................................... 21
[1
EEOCComplaint 5........................................................................................... 22
5.
Events Preceding Complaint ....................................................................... 22
a.
Complaint.................................................................................................... 22
b.
6. EEOCComplaint 6........................................................................................... 23
Events Preceding Complaint....................................................................... 23
a.
i. Plaintiff's April 30, 2010 Notice of Removal............................................. 23
ii. Plaintiff's July 24, 2010 Notice of Removal ............................................... 23
Complaint.................................................................................................... 24
b.
Arbitration and Administrative Law Judge Rulings ........................................ 25
E.
1. Arbitration Decision ......................................................................................... 25
2. Administrative Law Judge Decision................................................................ 26
Linden Hill Supervisors' Awareness of Plaintiff's Protected Activity........... 27
F.
Similarly Situated Employees......................................................................... 28
G.
Summary Judgment Standard.......................................................................... 29
III.
Effect of Prior Decision by Independent Tribunal.......................................... 30
A.
Consideration of Relevant Background Evidence........................................... 31
B.

I.
II.

2

Iv.
A.
B.
C.
1.
a.
b.
2.
3.
II,
1.
a.
b.
C.

d.

2.
3
V.
A.
1.
2.
B.
1.
2.
C.
1.

2.
vI.

I.

.31
Law
Statutes............................................................................................................. 3 1
Exhaustion of Administrative Remedies Standard.......................................... 32
Discrimination Claims Standard...................................................................... 32
Plaintiff's Burden: Prima Facie Case.............................................................. 33
Stray Remarks Insufficient to Establish Prima Facie Case......................... 33
Inference Against Discrimination............................................................... 34
Employer's Burden: Articulate Non-Discriminatory Reason for Employment
Action..............................................................................................................
Assessing Whether Employer's Stated Reason is Pretextual........................... 34
Retaliation Claim Standard.............................................................................. 35
Plaintiff's Burden: Prima Facie Case.............................................................. 35
First Prong: Engagement in Protected Activity.......................................... 36
Second Prong: Employer's Awareness of Protected Activity.................... 36
Third Prong: Adverse Employment Action................................................ 36
Fourth Prong: Causal Connection between Adverse Action and Protected
Activity........................................................................................................ 37
i. Temporal Proximity.................................................................................... 37
ii. Similarly Situated Comparators.................................................................. 37
Employer's Burden: Articulate Non-Retaliatory Reason for Employment
Action.............................................................................................................. 38
Assessing Whether Employer's Stated Reason is Pretextual........................... 38
Application of Law to Facts............................................................................ 40
Exhaustion of Administrative Remedies......................................................... 40
Race and Age Discrimination Claims.............................................................. 40
National Origin Discrimination Claim............................................................. 40
Discrimination Claims..................................................................................... 40
Race.................................................................................................................. 40
Age...................................................................................................................41
RetaliationClaim.............................................................................................41
The Arbitration and Administrative Law Judge Decisions Do Not Sufficiently
Consider Background Evidence Underlying Plaintiffs Allegations of
Retaliation........................................................................................................ 41
Plaintiff Has Established a Prima Facie Showing of Retaliation and
Sufficiently Alleged Pretext ............................................................................43
Conclusion....................................................................................................... 45

Introduction
Fun K. Chan delivered mail for the United States Postal Service ("USPS" or "Postal

Service") for years without a record of discipline. He claims that, beginning in 2005, he was

3

dogged by insistent surveillance designed to discover deviations from detailed regulations of
postal employees' conduct.
On July 7, 2010, after twenty-two years of service with the Postal Service, plaintiff left
his mailbag unattended for approximately ten minutes—a violation of regulations—while he
used a restroom. For this deviation he was discharged.
Chan alleges that his supervisors discriminated and retaliated against him. These actions,
he claims, were based on his national origin, his race and his age. See Age Discrimination in
Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621, et seq. (2014), and Title VII of the Civil
Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-16 (2014).
The administrative law judge ("AU") who ruled on Chan's current claims failed to
assess extensive evidence of prior retaliation dating back to 2005.
Defendant's motion for summary judgment with respect to plaintiff's present Title VII
retaliation claim is denied. Motions for summary judgment regarding plaintiff's national origin,
race and age discrimination claims under Title VII and the ADEA are granted.
II.

Facts
A. Background
Plaintiff, a citizen of the United States, was born in Hong Kong in 1965, and immigrated

to the United States in 1985 at age twenty. (Silverman Decl. Ex. Q 7:7-16, ECF No. 28-15
("Silverman Chan Dep.").) His first language is Cantonese, but he is fluent in English. (Chan
Decl. ¶ 3, ECF No. 30 ("Chan Decl.").)
B. Employment
Beginning on October 22, 1988, Chan worked as a permanent employee for USPS for
approximately twenty-two years. (Silverman Decl. Ex. T, ECF No. 28-16.) He worked as a mail

ru

handler for approximately thirteen years, from 1988-2001, and as a mail carrier for
approximately nine years, from 2001-2010. (Silverman Chan Dep. 10:19-14:25.) As a mail
handler, plaintiff moved mail inside Postal Service facilities. (Id. at 11:1-12.) As a mail carrier,
he delivered mail to homes and other places. (U.S. Postal Service, City Delivery Carriers Duties
and Responsibilities, Handbook M-41 (Apr. 5, 2001), http://nalcbytrilogy.comlworkplaceissues/resources/manuals/other/m41 .pdf.) His twenty-two year employment history is
summarized as follows:
• 1988-1995 (seven years): mail handler at College Point and Annex Stations;
• 1995-2001 (six years): mail handler at Whitestone Station;
• 2001 (few months): mail handler and mail carrier at Rego Park Station;
• 2001-2003 (two years): mail carrier at Flushing Station;
• 2003-2010 (seven years): mail carrier at Linden Hill Station.
(Silverman Chan Dep. 11:13-18, 13:24-14:6, 16:9-19, 16:1-25; ALJ Hr'g Tr. June 6, 2012,
40:12-14, Oct. 29, 2014, ECF No. 37.)

C. Timeline of Events Summary
As a mail handler, prior to working at Linden Hill, plaintiff was not, he concedes, subject
to discrimination or harassment. (AU Hr' g Tr. June 6, 2012, 159:15-16.) During his tenure at
Linden Hill, beginning in 2005, up until his official termination date of July 24, 2010, plaintiff
filed six complaints with the Postal Service's Equal Employment Opportunity Commission
("EEOC") office. See infra Part II.D. As the timeline below indicates, USPS attempted to fire
Chan on six different occasions between 2008 and 2010. Five of the six notices of removal were
not upheld at various stages of the grievance process. The timeline suggests close proximity
between the reversal of disciplinary decisions through the grievance process and the issuance of
5

new disciplinary violations. For example, on July 7, 2010, only two days after Chan's April 30,
2010 notice of removal was rescinded, two supervisors made the decision to engage in street
supervision of Chan, resulting in his placement on emergency off-duty status and, ultimately, a
new notice of removal.

Year 2005
May 12, 2005: Philana Overstreet, Customer Services Supervisor at Linden Hill from
1992 through 2012, issues Chan a letter of warning for returning to the station slightly
early and changing into street clothes during "wash up time" before cleaning his station.

October 13, 2005: Chan is accused by Overstreet of leaving behind a bucket of mail at
Linden Hill. Chan denies the allegation, noting that Overstreet had no reason to believe
that he, as opposed to another carrier, left the bucket.
October 28, 2005: Overstreet and John Zucci, Manager of Customer Services at Linden
Hill during a portion of 2005 and 2006, issue Chan a seven-day suspension for failure to
follow instructions and for falsifying delivery scans.
November 7, 2005: Overstreet issues Chan a fourteen-day suspension for the October
13, 2005 incident.

December 2, 2005: Chan's November 7, 2005 discipline is rescinded as unsupported.
Year 2006
February 15, 2006: Chan files an informal complaint ("EEOC Compi. 1") against
Overstreet and Zucci related to the May and October 2005 incidents; Chan fills out an
"Abusive Supervisor Incident Worksheet," which he attaches to the complaint.

March 10, 2006: Chan rejects redress mediation, the Postal Service's free mediation
program, in connection with EEOC Compl. 1.

April 5, 2006: Chan files a complaint alleging he was harassed by Overstreet when she
removed his personal belongings from his workstation and threw certain items, including
his allergy medicine, in the garbage. Chan initiates the first step in collective bargaining
agreement ("CBA") grievance proceedings, referred to as a "Step A" proceeding.

April 13, 2006: EEOC Compi. 1 is withdrawn.
May 2, 2006: A Step A meeting regarding Chan's April 5, 2006 complaint is held. The
parties have not stated the outcome of this decision in their pleadings.

May 9, 2006: Chan initiates the second step in CBA proceedings, referred to as a "Step
B" proceeding, in connection with his April 5, 2006 complaint. The parties have not
stated the outcome of this decision in their pleadings.
Year

.

i

. ..

.

.

March 16, 2007: Chan requests and receives assistance on his route because there is ten
inches of snow on the ground. He returns somewhat early to the station; Overstreet
screams at him, accuses him of requesting assistance unnecessarily, and demands he go
to the manager's office. Chan is put on emergency off-duty placement for this conduct.
Chan denies ever screaming or yelling at Overstreet.
April 4, 2007: Chan is issued a seven-day suspension based on the events of March 16,
2007. Chan files an anonymous, informal complaint ("EEOC Compi. 2") against
Overstreet on the same day.
April 27, 2007: Chan rejects redress meditation.
April 28, 2007: Informal EEOC Compl. 2 is closed.
May 1, 2007: Chan is allegedly subject to a new reprisal by Overstreet for grieving his
emergency off-duty placement related to the March 16, 2007 incident and the seven-day
suspension that followed. The parties have not explained the facts related to this May 1,
2007 reprisal in their pleadings.
May 21, 2007: Chan files an informal complaint ("EEOC Compi. 3") against Overstreet
regarding the alleged May 1, 2007 reprisal.
June 7, 2007: Informal EEOC Compl. 3 is closed.
June 22, 2007: Chan files a formal complaint in connection with EEOC Compi. 3.
July 16, 2007: Chan is issued a fourteen-day suspension by Overstreet and Gene Daly,
Customer Service Manager at Linden Hill, for failure to follow instructions and for
failure to safeguard the mail. Chan apparently left two full mailbags within his sight
while bringing two other mailbags into a nearby building before returning to retrieve the
remaining bags.
July 27, 2007: A Step A proceeding is initiated regarding Chan's July 16, 2007
suspension.
August 20, 2007: The seven-day suspension related to the April 4, 2007 incident is
reduced to a letter of warning at a Step A decision.

7

September 10, 2007: In accordance with the USPS grievance system for formal
complaints, a National Equal Employment Opportunity Investigative Services Office
("NEEOISO") investigation report is produced related to EEOC Compl. 3.
September 19, 2007: At a Step B decision, Chan's fourteen-day suspension issued on
July 16, 2007 is reduced to a seven-day suspension.

October 3, 2007: Chan requests an administrative hearing before the EEOC regarding
EEOC Compi. 3, premised on the alleged reprisal of May 1, 2007.
Year 2008
January 17, 2008: Chan is issued a fourteen-day suspension after Linden Hill carrier
Danny Mulhern allegedly starts an argument with him. Overstreet claims she saw Chan
attempt to punch Mulhern. Chan denies this.

March 22, 2008: Chan is issued a notice of removal by Overstreet for briefly using his
cell phone on the workplace floor.

April 1, 2008: Chan agrees to participate in EEOC mediation in connection with EEOC
Compl. 3.

April 17, 2008: As a result of EEOC mediation regarding EEOC Compl. 3, USPS
rescinds the March 22, 2008 notice of removal. Formal EEOC Compi. 3 is settled.

October 31, 2008: A letter of complaint is allegedly written to the Postmaster of Linden
Hill from Chan's customers, Drs. Chung and Huang. Both later provide written letters
stating that neither wrote nor signed this letter.
Year 2009

:

January 22, 2009: Wook Hong, Acting Customer Services Supervisor at Linden Hill
from January 2009 to March 2010, compares Chan' s work to that of Joseph Alini and
tells Chan he wants to see Alini's misdelivered mail. Alini is a "floater carrier" who
delivers Chan's route on Chan's days off. Chan brings back pieces of Alini's
misdelivered mail to Linden Hill.

February 2, 2009: Hong issues Chan a notice of removal for returning pieces of Alini's
misdelivered mail.

February 6,2009: Step A proceeding is initiated regarding Chan's February 2, 2009
notice of removal.

February 25,2009: Hong moves Chan's desk so that he is positioned directly in front of
the supervisor's desk.
8

March 5, 2009: Hong screams and curses at Chan on the workplace floor.
March 31, 2009: Hong tells Chan he should be able to carry two bags of mail at a time.
Chan replies that this is a safety hazard. Hong orders Chan to his office and tells him: "I
will fire your ass.... I don't care. You can go to the Union, the EEO [C], your lawyer.
have lots of experience with that." Chan files an informal complaint for harassment and
reprisal ("EEOC Compl. 4") against Hong regarding the February 2, 2009 notice of
removal.
April 1, 2009: A Step A meeting regarding Chan's February 2, 2009 notice of removal is
held.
April 14, 2009: At a Step B decision, Chan's February 2, 2009 notice of removal is
rescinded and reduced to an "official discussion," which is not discipline and cannot be
cited to aggregate a penalty for future misconduct.
May 14, 2009: Hong accuses Chan of deception, claiming he scanned the mail in the
correct order, but then proceeded to deliver it out of order.
May 20, 2009: Chan is issued a notice of removal for allegedly delivering mail out of
sequence on May 14, 2009.
May 29, 2009: Chan rejects redress mediation in connection with EEOC Compi. 4. Chan
initiates Step A proceedings regarding his May 20, 2009 notice of removal for delivering
mail out of sequence.
June 16,2009: Informal EEOC Compl. 4 is closed.
July 2, 2009: A Step A meeting regarding Chan's May 20, 2009 notice of removal is
held. Chan converts his informal EEOC Compl. 4 to a formal complaint, alleging age
and race discrimination and retaliation for the February 2, 2009 and May 20, 2009 notices
of removal.
July 3, 2009: Dr. Chung writes a letter to Linden Hill asserting that she never
complained about Chan and that she did not write the October 31, 2008 letter, which
Chan had shown her.
July 5, 2009: Dr. Huang writes a letter to Linden Hill asserting that he never complained
about Chan and that he did not write the October 31, 2008 letter, which Chan had shown
him.
July 20, 2009: Formal EEOC Compi. 4 is dismissed.
July 31, 2009: Chan attends Step B proceedings regarding his May 20, 2009 notice of
removal. The Step B decision results in "impasse."

August 7, 2009: Chan is placed on emergency off-duty status without pay pending
removal from the Postal Service because his May 20, 2009 notice of removal resulted in
impasse at Step B on July 31, 2009.

August 10, 2009: Chan files an informal complaint ("EEOC Compi. 5") against Douglas
Palma, Manager at the Collection Unit in Flushing, and Hong, alleging reprisal based on
race and age discrimination regarding the notice of removal issued on May 20, 2009.

August 19, 2009: Chan accepts redress mediation in connection with EEOC Compi. 5.
August 24, 2009: Chan appeals EEOC Compi. 4 to the EEOC Office of Federal
Operations ("OFO").

September 20, 2009: Hong apologizes to Chan for screaming and cursing at him on
March 5, 2009.

September 22, 2009: Redress mediation is conducted in connection with EEOC Compi.
5. No resolution is reached.

October 28, 2009: Chan provides a confidential witness affidavit to the National Labor
Relations Board ("NLRB") in connection with his May 20, 2009 notice of removal.

November 4, 2009: EEOC Compi. 5 is closed.
November 20, 2009: Chan's May 20, 2009 notice of removal is reduced to a fourteenday suspension in advance of arbitration. Chan is reinstated.

December 1, 2009: Chan submits a form to receive backpay he is entitled to for days
worked between August 7, 2009 and November 20, 2009, minus the fourteen-day
suspension resulting from the May 20, 2009 notice of removal.
Year 2010
February 17,2010: EEOC ALJ reverses and remands EEOC Compl. 4 to USPS so that
it can determine whether retaliation or age discrimination was involved in Chan's May
20, 2009 notice of removal.

April 30, 2010: Chan is issued a notice of removal for accepting cash from a customer to
cover the cost of sending certain pieces of mail by certified mail.

May 1, 2010: Chan submits a form to NEEOISO requesting pre-complaint counseling
from a dispute resolution specialist, alleging that he was discriminated and retaliated
against by Rudy Marinacci, Manager of Customer Services at Linden Hill, as a result of
filing EEOC Compi. 4, which alleged harassment and reprisal regarding the February 2,
2009 and May 20, 2009 notices of removal.
10

May 13,2010: A Step A proceeding is initiated regarding Chan's April 30, 2010 notice
of removal.
May 18, 2010: The EEOC permits Chan to amend EEOC Compi. 4 to include the
alleged May 1, 2010 reprisal, but dismisses the amended complaint for failure to state a
claim. Neither party elaborates upon the facts related to the May 1, 2010 reprisal in their
pleadings.
June 9, 2010: A Step A meeting regarding Chan's April 30, 2010 notice of removal is
held.
July 3, 2010: Chan calls the Postal Service's EEOC Office to complain that Marinacci
had included a lie in Chan's April 30, 2010 notice of removal. The supervisor allegedly
stated that a customer had complained about Chan knowing that the customer never did.
The customer denied making the statement in writing.
July 5,2010: A Step B decision rescinds Chan's April 30, 2010 notice of removal.
July 7, 2010: Chan is placed on emergency off-duty status for failure to safeguard postal
property and the mail after he allowed a building doorman to watch his mail cart for
approximately ten minutes while he used the restroom.
July 8,2010: Chan files an informal EEOC complaint ("EEOC Compl. 6") regarding the
July 7, 2010 incident.
July 23, 2010: Chan is offered and elects redress mediation in connection with EEOC
Compl. 6.
July 24, 2010: Chan is issued a notice of removal for the July 7, 2010 incident.
August 3, 2010: Chan is put on emergency off-duty status without pay for allegedly
improperly removing mail from the mailstream. Chan denies the allegation.
August 4, 2010: Chan is interviewed by special agents Jocelynne Pastrana and Jackie
Ventura with USPS Office of the Inspector General ("OIG") about whether (1) he left his
Postal Service pushcart at a liquor store; (2) put mail in his personal backpack; (3) left his
mail cart and "intelligent mail" device unattended; and (4) misdelivered a test piece of
mail.
August 9, 2010: Chan requests an EEOC hearing in connection with EEOC Compl. 4,
which alleged age discrimination and retaliation regarding Chan's February 2, 2009 and
May 20, 2009 notices of removal.

11

August 19, 2010: Chan swears a confidential witness affidavit with the NLRB in
connection with his July 24, 2010 notice of removal, asserting he was discharged for
filing grievances, and noting that he has still not received backpay resulting from the May
20, 2009 notice of removal. Chan accepts redress mediation in connection with EEOC
Compi. 5.
September 10, 2010: A Step A meeting regarding Chan's July 24, 2010 notice of
removal is held.
September 22, 2010: A Step B meeting regarding Chan's July 24, 2010 notice of
removal is held.
September 24, 2010: USPS cancels mediation in connection with informal EEOC
Compi. 6.
September 29, 2010: A Step B decision regarding Chan's July 24, 2010 notice of
removal results in impasse.
October 1, 2010: Chan is issued a notice of removal for allegedly removing mail from
his tray and placing it in his bag, misdelivering a test piece of mail, using his personal
vehicle without permission, and leaving his mail cart unattended in a liquor store, all
issues investigated by the 010 on August 4, 2010.
October 5,2010: Informal EEOC Compl. 6 is closed.
October 15, 2010: Chan files a formal complaint in connection with EEOC Compi. 6
against Sean Duffy, Station Manager at Linden Hill in July and August 2010, and Anna
Palanska, Acting Customer Services Supervisor at Linden Hill from April 2010 to August
2010, regarding the incidents of July 7, 2010, July 24, 2010, August 3, 2010, and October
1,2010.
I.e:ar2O.11

.

..

..

April 13, 2011: NEEOISO finalizes its report regarding the allegations in EEOC Compl.
6.
May 12, 2011: An arbitration decision in connection with Chan's July 24, 2010 notice of
removal finds just cause for Chan's removal but no just cause for placing him on
emergency off-duty status.
May 11, 2011: Chan requests an EEOC hearing related to EEOC Compi. 6.

12

Year 2012

.

April 11, 2012: An evidentiary hearing is held before EEOC ALJ Ricardo Cuevas in
connection with EEOC Compis. 4 and 6.
June 6, 2012: An evidentiary hearing is held before Cuevas in connection with EEOC
Compls. 4 and 6.
October 25, 2012: An evidentiary hearing is held before Cuevas in connection with
EEOC Compis. 4 and 6. The related ALJ decision, upholding Chan's termination, is
released.
Year 2013
March 11, 2013: A notice of final action is issued in connection with EEOC Compis. 4
and 6. USPS adopts and implements the ALJ decision.

D. Plaintiff's EEOC Actions
Chan pursued formal EEOC complaints with respect to his third, fourth and sixth
complaints. See supra Part II.C. The fourth and sixth complaints were combined and eventually
heard by ALJ Cuevas, who found USPS's actions of May 20, 2009, July 7, 2010, July 24, 2010,
and August 3, 2010 legitimate and non-discriminatory. (Silverman Dccl. Ex. 0, ECF No. 28-14
("ALJ Decision"); Feuerstein Decl. Ex. E ("EEOC Compl. 4"), ECF No. 28-5 ("Feuerstein
Dccl."); Feuerstein Decl. Ex. J ("EEOC Compl. 6").) Although the ALJ decision dealt with
Chan's race- and age-based claims under Title VII and the ADEA, it did not addres Chan's
claim of retaliation in isolation or assess whether plaintiff's supervisors at Linden Hill—in
retaliation for the multiple race- and age-based complaints Chan had filed with the EEOCcollectively sought to build a disciplinary record against Chan that ultimately resulted in the July
24, 2010 notice of removal. (ALJ Decision; ALJ Hr'g Trs., Apr. 11, 2012, June 6, 2012, Oct. 25,
2012, ECF No. 37.)

13

Chan explained that the filing of the EEOC complaints initially succeeded in making his
supervisors more cautious about discriminating and retaliating against him. (Silverman Chan
Dep. 41:6-9.) He testified: "Sometimes I just feel like - - when I call them [the EEOC], the
[offending] manager [would] stop [for] one or two months, [but] then it [would] come back
again." (Id.) According to Chan, "[f]ollowing his first [informal] EEOC complaint,...
supervisors started to regularly follow him during his delivery route, and stand[] directly behind
his desk while he would case mail, for unusual, extended periods of time." (Silverman Chan
Dep. 86:9-11, 239:9-11.) Linden Hill supervisors also told Chan not to sit down while he was
working. (Silverman Decl. Ex. F, ECF No. 28-13 ("Oct. 28, 2009 Confidential Witness Aff.").)
Chan claims Douglas Palma, a non-Linden Hill USPS supervisor, "began a pattern and
practice of following [Chan] on his mail delivery route to catch him breaking any of the myriad
rules and regulations set forth in the NALC [National Association of Letter Carriers] Agreement
or other regulations." (Pl.'s 56.1 Add'l Facts ¶ 8, ECF No. 34. See also Silverman Chan Dep.
86:9-11.) Rudy Marinacci, another USPS supervisor, would allegedly stand behind Chan and
ask why Chan was drinking water. (Silverman Chan Dep. 285:7-15.) Overstreet accused
plaintiff of "time wasting practices" such as "walk[ing] long distances to put away equipment
such as a bucket or tray." (Silverman Deci. Ex. C, ECF No. 28-13 ("Step B Decision May 9,
2006").) Chan argues that the treatment he endured "was specifically designed to create a record
of discipline which would support his eventual termination under the progressive disciplinary
system set forth in the applicable [CBA] between the USPS and [NALC]." (Chan Decl. ¶ 6.)

14

1. EEOC Complaint 1
a. Events Preceding Complaint
As early as 2004, one year after plaintiff started working at Linden Hill, he felt harassed
by his immediate supervisor, Overstreet, who joked about the way Chan spoke English,
mimicked his accent, and asked him how to spell words like "library," "whatever," and "hour."
(Chan Deci.

IT 8-9.) Throughout 2005, Overstreet disciplined plaintiff three times. On May 12,

2005, Overstreet issued plaintiff a letter of warning when he returned slightly early from his shift
and changed into street clothes during his "wash up time" before cleaning up his station.
(Overstreet Dee!. Ex. A. ECF No. 28-10 ("Overstreet Decl.").) Five months later, on October
28, 2005, Overstreet and Zucci issued plaintiff a seven-day suspension for failure to follow
instructions and for falsifying scans. (Id. at Ex. B.) Less than two weeks later, on November 7,
2005, Overstreet issued plaintiff a fourteen-day suspension, claiming that plaintiff had left
behind a bucket of mail on October 13, 2005. (Id. at Ex. D.) Management rescinded the
November discipline as unsupported in a Step B decision dated December 2, 2005. (Chan Decl.
¶ 10.)
When Overstreet issued the seven-day suspension on October 28, 2005, she could have
simultaneously addressed the October 13, 2005 conduct, but chose instead to issue it separately,
activating the CBA progressive disciplinary system. (See Mot. for Summ. J. Hr'g Tr. Oct. 28,
2014) (noting that the penalties for individual violations build upon previous violations; e.g., if
an employee receives a seven-day suspension for a violation of a regulation, she or he could
receive a fourteen-day suspension for a subsequent violation).) Plaintiff felt especially singled
out by Overstreet. (See, e.g., Overstreet Dee!. at Ex. D.) For example, Chan claims that

15

Overstreet harassed him by removing personal belongings from his work station; she allegedly
threw away certain items, including his allergy medicine. (Chan Dee!. Ex. C.)
b. Complaint
On February 15, 2006, Chan filed an "Abusive Supervisor Incident Worksheet," which
he attached to his first informal EEOC complaint based on race (Agency No. 4A-1l0-0081-06).
(Silverman Deci. Ex. B, ECF No. 28-13; Feuerstein Deci. Ex. B.) Plaintiff rejected redress
mediation on March 10, 2006. (Id.) Grievance proceedings were initiated on April 5, 2006.
(Id.) For reasons not explained by either party, plaintiff withdrew the informal complaint on
April 13, 2006, and did not file a formal complaint. (Id.) Chan attended a Step A meeting on
May 2, 2006, and received a Step B decision on May 9, 2006. (Step B Decision May 9, 2006.)
2. EEOC Complaint 2
a. Events Preceding Complaint
On March 16, 2007, plaintiff requested and received assistance on his mail route because
there were ten inches of snow on the ground. (Trexler Deci. Ex. A 43:5-9, ECF No. 33-1
("Trexier Chan Dep.").) When plaintiff returned approximately thirty minutes early to the
station, Overstreet yelled at him, accusing him of requesting assistance unnecessarily. (Id. at
43:10-16) She instructed plaintiff to go to the manager's office and enlisted Mike Manganiello
to place Chan on emergency off-duty placement for "conduct unbecoming." (Overstreet Dee!.
Ex. F.) Plaintiff was issued a seven-day suspension on April 4, 2007 as a result of the March 16,
2007 incident. (Id. at Ex. G.)
b. Complaint
Plaintiff anonymously commenced a second EEOC action (Agency No. 4A-1 10-0092-07)
on April 4, 2007 for harassment in connection with the March 16, 2007 incident. (Feuerstein
16

Dccl. Ex. C.) He rejected redress mediation on April 27, 2007. (Id.) For reasons not stated by
either party, the informal complaint was closed on April 28, 2007. (Id.) Plaintiff did not pursue
a formal complaint. (Id.) Chan grieved the suspension and, on August 20, 2007, at the third step
of the grievance process (pre-arbitration), the parties agreed to reduce the suspension to a letter
of warning. (Id. at Ex. H.; Chan Deci. Ex. D.)
3. EEOC Complaint 3
a. Events Preceding Complaint
Plaintiff allegedly faced harassment based on a May 1, 2007 incident related to
management reprisals connected to Chan's grievance of the discipline issued to him on April 4,
2007, Chan's second EEOC case. (Feuerstein Dccl. Ex. D.) Neither party describes the details
of this reprisal.
b. Complaint
Plaintiff commenced a third EEOC case (Agency No. 4A-110-0 114-07) on May 21, 2007
for harassment based on the May 1, 2007 incident. (Id.) The informal complaint was closed on
June 7, 2007. (Id.) Plaintiff filed a formal complaint on June 22, 2007. (Id.) NEEOISO
produced an investigation report on September 10, 2007. (Id.) Plaintiff requested an
administrative hearing before the EEOC on October 3, 2007. (Id.) On April 1, 2008, UPS
offered mediation a second time, and plaintiff agreed to participate. (Id.) On April 17, 2008,
EEOC Compl. 3 was settled; mediation was conducted, leading USPS to rescind Chan's March
22, 2008 notice of removal. (Id.)

17

4. EEOC Complaint 4
a. Events Preceding Complaint
i.

Plaintiff's July 16, 2007 Suspension

Plaintiff was issued a fourteen-day suspension on July 16, 2007 for leaving two mail bags
within his sight, while bringing two other mail bags into a nearby building, and then returning to
retrieve the remaining two bags. (Overstreet Deci. Ex. I.) Plaintiff grieved the July 16, 2007
suspension and Step A proceedings were initiated on July 27, 2007. (Id. at Ex. K) In a
September 19, 2007 Step B decision, plaintiffs discipline was reduced to a seven-day
suspension. (Id.)

ii.

Plaintiff's January 17, 2008 Suspension

On January 17, 2008, plaintiff received a fourteen-day suspension after another Linden
Station carrier, Danny Muihem, started an argument with him. (Id. at Ex. L.) Overstreet
claimed she saw plaintiff attempt to punch Muihern. (Id.) Overstreet did not ask plaintiff what
happened; she only asked why plaintiff did not tell her that Mulhern wanted to fight with him
before he went outside. (Chan Decl. ¶ 22.) Plaintiff told Overstreet that he did not know
Muihern wanted to fight him, and that plaintiff had stepped outside because he did not want to
have an argument inside. (Id.)

iii.

Plaintiff's March 22, 2008 Notice of Removal

On March 22, 2008, Overstreet issued plaintiff a notice of removal for using his cell
phone on the workroom floor. (Overstreet Deci. Ex. N.) According to the notice, Overstreet
observed plaintiff talking on the phone on the workroom floor; when she instructed him to end
the call and return to his assignment, he ignored her and continued talking "for approximately
one minute" before putting the phone away. (Id.) Plaintiff allegedly used his phone a second
18

time on the workroom floor later that morning. (Id.) Overstreet ordered plaintiff to report to the
office. (Id.) Plaintiff asserted three times that he would not go to the office unless his NALC
steward was present. (Id.)
iv. Plaintiffs February 2, 2009 Notice of Removal
In January 2009, while plaintiff was casing mail, Hong suggested to plaintiff that a floater
mail carrier, twenty-seven-year-old Joseph Alini, who covered Chan's mail route on his days off,
was able to deliver mail faster than Chan and needed less overtime. (Silverman Chan Dep.
129:10-13.) Chan asked Hong whether he would like to see Alini's misdelivered mail; Hong
told Chan to "bring back the mail" and "prove [it to] him." (Id. at 129:8-130:18.) Chan brought
back misdelivered pieces of mail to show Hong on January 22, 2009. (Hong Deel. Ex. A
("Notice of Removal Feb. 2, 2009") ECF No. 28-6 ("Hong Decl.").) In response, on February 2,
2009, Hong issued plaintiff a notice of removal. (Id.) Approximately three weeks later, on
February 25, 2009, Hong moved plaintiffs desk directly in front of the supervisor's desk.
(Silverman Chan Dep. 230:9-11; Trexier Dccl. Ex. C 52:11-20, 54:15-17, ECF No. 33-3 ("Hong
Dep.").)
Plaintiff grieved the notice of removal and Step A proceedings were initiated February 6,
2009. (Chan Dee!. Ex. G.) The Step A meeting was held April 1, 2009. (Id.) By a Step B
decision on April 14, 2009, the notice was reduced to an "official discussion," which is not
discipline and cannot be cited to aggregate a penalty for future misconduct. (Id.)

19

V.

Plaintiff's Supervisor Wook Hong Issued Letter of Warning After
He Curses at Plaintiff and Threatens to Fire Him

On March 5, 2009, Hong openly screamed and cursed at plaintiff on the workroom floor,
using the "F word" because he thought plaintiff was responsible for making another mail carrier
cry. (Hong Dep. 85:15-16). Hong told Chan:
Every f-cking day I get a complaint about you. I don't care what you said in Chinese or
what. From now on, I want you to shut your f-cking mouth while you are on the working
floor. If I hear any noise from.. . your f-cking mouth, I will put you[r] f-cking ass in the
street. I am speaking to you not as Manager. I am speaking to you as a Man. I will put
your ass in the street.
(Oct. 28, 2009 Confidential Witness Aff. 9.) Hong allegedly continued: "Go ahead and file the
EEO[C] complaint. I'm not scared." (Silverman Chan Dep. 285:5-6.) Hong was issued a letter
of warning as a result of the March 5, 2009 incident. (Hong Deci. ¶J 34-3 5.) He apologized to
plaintiff at EEOC mediation on September 20, 2009. (Id.)
On March 31, 2009, Hong told plaintiff to carry two bags of mail at a time, which
plaintiff said was a safety hazard. (Oct. 28, 2009 Confidential Witness Aff, 9.) Hong said:
"[Y]ou better do your job right. I will fire your ass anyway. I don't care. You can go to the
Union, the EEO[C], your lawyer. I have lots of experience with that." (Id.)
vi. Customers Write Letters Asserting They Did Not Complain About
Chan
On October 31, 2008, a letter was allegedly sent from Dr. Huang and Dr. Chung to the
Postmaster of Linden Hill Post Office complaining that Chan was unreliable and stole mail.
(Chan Decl. Ex. J.) On July 3, 2009, after Chan told Dr. Chung about the letter, she sent a letter
on her letterhead to Linden Hill stating that she had not written a complaint letter about Chan,
and that her signature on the 2008 letter had been forged. (Id.) Two days later, Dr. Huang sent a

20

letter on his letterhead to Linden Hill similarly stating that he had not written the 2008 letter, and
asserting that Chan "has been doing an excellent job as postman of our building." (Id.)

b. Complaint
On March 31, 2009, plaintiff filed a fourth EEOC complaint (Agency No. 4A-110-008909) based on harassment and reprisal for the January 22, 2009 incident and the related notice of
removal issued on February 2, 2009. (EEOC Compi. 4.)
Shortly thereafter, Hong accused plaintiff of delivering mail out of order, issuing Chan a
notice of removal for this alleged conduct on May 20, 2009. (Hong Deci. Ex. Q. Even if
plaintiff had delivered his mail out of order, plaintiff alleges that it is common for carriers to
deliver mail out of sequence without being disciplined. (See, e.g., Trexler Deci. Ex. D 5 1:9-13,
ECF No. 33-4 ("Trexier Marinacci Dep.") ("Do you specifically recall any employees who
received discipline for delivering mail out of sequence?' 'To the best of my recollection I do
not.").)
On May 29, 2009, nine days after Hong issued Chan a notice of removal, plaintiff
rejected redress mediation in his fourth EEOC complaint. (EEOC Compl. 4.) Plaintiff grieved
the notice of removal and Step A proceedings were initiated on May 29, 2009. (Silverman Decl.
Ex. E, ECF No. 28-13.) The informal complaint was closed on June 16, 2009. (Id.) Plaintiff
filed a formal complaint on July 2, 2009, alleging age discrimination and retaliation for the
February 2, 2009 and the May 20, 2009 notices of removal. (Id.) Plaintiff was received at Step
A on July 2, 2009. (Id.) Plaintiff formal EEOC complaint was dismissed on July 20, 2009.
(Id.) Plaintiff was received at Step B on July 31, 2009. (Id.) Step B proceedings resulted in
impasse on August 7, 2009. (Id.) On the same day, plaintiff was placed on off-duty status
without pay. (Chan Decl. Ex. H.)
21

Plaintiff appealed the July 20, 2009 dismissal of his complaint to the EEOC's OFO on
August 24, 2009. (EEOC Compl. 4.) On October 28, 2009, plaintiff provided a confidential
witness affidavit to the NLRB in connection with his May 20, 2009 notice of removal. (Oct. 28,
2009 Confidential Witness Aff.) In a decision dated February 17, 2010, the OFO determined
that Chan's complaint was improperly dismissed, remanding the case back to the agency to
ascertain whether the notice of removal issued to plaintiff on May 20, 2009 was related to age
discrimination and/or retaliation. (Feuerstein Decl. Ex. F.)
In the meantime, plaintiff asked to amend his fourth EEOC complaint to include an
alleged reprisal that took place on May 1, 2010. (Id. at Ex. G ("Info, for Pre-Complaint
Counseling May 10, 2010").) The EEOC permitted plaintiff to amend his complaint, but
dismissed the amended complaint for failure to state a claim. (Id. at Ex. H.)
Plaintiff requested an EEOC hearing on August 9, 2010. (EEOC Compl. 4.) Hearings
regarding this EEOC complaint, and plaintiff's sixth EEOC complaint, were held on April 11,
2012, June 6, 2012, and October 25, 2012. (ALJ Decision.) See infra Part II.E.2.
5. EEOC Complaint 5
a. Events Preceding Complaint
On May 14, 2009, Hong accused plaintiff of delivering mail out of order, issuing Chan a
notice of removal for this alleged conduct on May 20, 2009. (Hong Dee!. Ex. C).
b. Complaint
Plaintiff filed his fifth EEOC complaint (Agency No. 4A-110-0 148-09) on August 10,
2009 for harassment based on age and for reprisal related to the May 20, 2009 notice of removal.
(Feuerstein Dccl. Ex. I.) On August 19, 2009 plaintiff accepted redress mediation, which was
conducted on September 22, 2009. (Id.) No resolution was reached. (Id.) On November 4,
22

2009, the informal complaint was closed, and plaintiff did not file a formal complaint. (Id.) On
November 20, 2009, before arbitration was scheduled to take place, Chan's discipline related to
his May 20, 2009 notice of removal was reduced to a fourteen-day suspension. (Silverman Dccl.
Ex. J, ECF No. 28-13 ("Aug. 19, 2010 Confidential Witness Aff."); Silverman Dee!. Ex. Z, ECF
No. 28-16.) Chan was supposed to receive back pay from August 7, 2009 to November 20, 2009
(his reinstatement date) but, despite submitting a form to accounting on December 1, 2009, Chan
had not received any back pay as of August 19, 2010. (Id.)
6. EEOC Complaint 6
a. Events Preceding Complaint
i.

Plaintiff's April 30, 2010 Notice of Removal

On April 30, 2010, Marinacci issued plaintiff a notice of removal for accepting cash from
a customer to cover the cost of sending certain pieces of mail by certified mail. (Silverman Dccl.
Ex. X 57:4-68:8, ECF No. 28-16 ("Silverman Marinacci Dep.").) On May 1, 2010, Chan made a
request for pre-complaint counseling alleging that Marinacci had discriminated and retaliated
against him, in part based on his fourth EEOC complaint. (Info, for Pre-Complaint Counseling
May 10, 2010.) Step A proceedings were initiated on May 13, 2010; Chan was received at Step
A on June 9, 2010. (Chan Dccl. Ex. K.) The notice of removal was rescinded at a Step B
decision on July 5, 2010. (Id.) The Step B team found that management did not have just cause
to remove Chan. (Id.)
ii.

Plaintiff's July 24, 2010 Notice of Removal

On July 3, 2010, plaintiff called the USPS EEOC office to complain that Marinacci had
lied in the April 30, 2010 notice of removal he had issued to Chan. (Aug. 19, 2010 Confidential
Witness Aff.) In the notice of removal, Marinacci made an oblique reference to the fact that a
23

customer had complained about Chan. (Id.) The customer later denied ever making this
comment. (Id.)
Four days later, on July 7, 2010, plaintiff was followed on his route by two supervisors.
(Duffy Decl. Ex. A ("Notice of Removal July 24, 2010"), ECF No. 28-4 ("Duffy Deci.").) At
12:50 p.m., plaintiff entered the building at 142-18 38th Avenue. (Id.) Plaintiff used the
restroom for approximately 10 minutes, leaving his mail cart in the lobby near the building
doorman. (See, e.g., Palanska Decl. Ex. B, ECF No. 28-8.) Plaintiff left some mail and his mail
scanning device in the cart. (Id.) At 1:10 p.m., the supervisors entered the building and saw
plaintiff's mail cart in a corner of the lobby near the building doorman. (Notice of Removal July
24, 2010.) The supervisors, observing that plaintiff had completed mail delivery at the building,
took the mail cart and waited outside. (Id.)
When plaintiff returned and saw that his cart was gone, he called his union representative,
who told him to call the police and the Postal Inspector. (Silverman Chan Dep. 217:7-218:17;
Aug. 19, 2010 Confidential Witness Aff.) Plaintiff did as instructed. (Notice of Removal July
24, 2010.) He then called Duffy, who told plaintiff that his supervisors had taken the cart.

(Id.)

The supervisors then came back to the building and told plaintiff to return to Linden Hill. (Id.)
Plaintiff responded that he could not leave until the police and the Postal Inspector arrived. (Id.)
At approximately 2:25 p.m., the police arrived. (Id.) The Postal Inspector arrived at
approximately 2:35 p.m. (Id.) Plaintiff was placed on emergency off-duty status when he
returned to Linden Hill later that afternoon. (Duffy Deci. Ex. C.)
b. Complaint
Plaintiff filed a sixth EEOC complaint on July 8, 2010 (Agency No. 4B-1 10-0159-10).
(EEOC Compi. 6.) Redress mediation was offered and plaintiff elected mediation on July 23,
24

2010. (Id.) Plaintiff received a notice of removal for the July 7, 2010 incident on July 24, 2010.
(Notice of Removal July 24, 2010.) The formal Step A meeting was held September 10, 2010.
(Hong Decl. Ex. B.) The Step B proceeding held on September 22, 2010 resulted in impasse.
(Id.) The Postal Service cancelled mediation on September 24, 2010. (Id.) The informal
complaint was closed, and plaintiff was given the right to file a formal complaint. (Id.)
The formal complaint, filed October 15, 2010, against Sean Duffy and Anna Palanska,
included the original reprisal event in informal EEOC Compl. 6, which took place on July 7,
2010, and new reprisals from July 24, 2010, August 3, 2010, and October 1, 2010. (Id.) The
new reprisals involved the following:
• On July 24, 2010, Chan was issued a notice of removal for the July 7, 2010
incident. (EEOC Compi. 6.) He swore a confidential witness affidavit in
connection with this notice of removal on August 19, 2010. (Aug. 19, 2010
Confidential Witness Aff.)
•

On August 3, 2010, Chan was put on emergency placement in an off-duty status
without pay for allegedly improperly handling mail. (Trexler Dccl. Ex. H, ECF
No. 33-8.)

•

On October 1, 2010, Chan was issued a notice of removal for allegedly removing
mail from his tray and placing it in his bag, misdelivering a test piece of mail,
using his personal vehicle without permission, and leaving his mail cart
unattended in a liquor store. (Ortiz Dccl. Ex. B, ECF No. 28-9 ("Notice of
Removal Oct. 1, 2010").) The notice of removal was based on an interview of
Chan by OIG special agents Pastrana and Ventura that took place on August 4,
2010. (Id. at Ex. A.)

NEEOISO finalized a report with respect to these claims on April 13, 2011. (EEOC Compi. 6.)
E. Arbitration and Administrative Law Judge Rulings
1. Arbitration Decision
Having exhausted union grievance procedures, plaintiff went to arbitration. (Silverman
Dccl. Ex. N. Aug. 29, 2014, ECF No. 28-14 ("Arbitration Decision").) The parties stipulated
25

"that the issue to be decided is 'did management have 'just cause' to issue Mr. Chan a letter of
removal dated July 24, 2010 for failure to safeguard the mail and postal property?' If not, what
should the remedy be?" (Id. at 3.) The arbitrator upheld Chan's termination. (Id. at 11.) By
decision dated May 12, 2011, the arbitrator found that there was just cause for the July 24, 2010
notice of removal. (Id.)
2. Administrative Law Judge Decision
Plaintiff requested an EEOC hearing on May 13, 2011 with respect to the July 7, July 24,
August 3, and October 1, 2010 reprisals. (Id.) On October 25, 2012, after holding three days of
evidentiary hearings, ALJ Ricardo Cuevas rendered a decision regarding Chan's fourth and sixth
EEOC complaints. (ALJ Decision.) The parties stipulated that the following issues required
consideration:
(I)

Whether the Complainant was subjected to illegal employment discrimination
on the basis of age (the Complainant falls within the protected age group)
and/or Agency retaliation, when: (a) on May 20, 2009, the Complainant was
issued a proposed letter of termination subsequently reduced to a fourteen (14)
day suspension; (b) on July 7, 2010, the Complainant was placed on
emergency off-duty status without pay; (c) on July 24, 2010, the Complainant
was issued a proposed letter of termination and (d) on August 3, 2010, the
Complainant was placed on emergency off-duty status without pay.

(II)

Whether the Complainant was subjected to illegal employment discrimination
on the basis of race ("Asian-American"), age and/or Agency retaliation, when,
on October 1, 2010, the Complainant was issued a proposed termination letter.

(Id. at 2.) Cuevas ruled against Chan. (Id. at 9.) Significantly, he refused to consider evidence
that predated the current disciplinary actions in assessing Chan' s retaliation claim.

See infra Part

V.C.1. He stated:
[T]he bottom line is. . . I've got to concentrate on what the timely allegations are and I
don't go back unless I find some sort of viability on a timely claim before I can go back
and perhaps make a connection between the timely violation and perhaps some previous
violation.
Ove

(AU Hr'g Tr. Apr. 11, 2012, 40:20-25.) Cuevas ultimately reasoned that—because Chan
admitted to violating USPS protocol with respect to incidents in 2009 and 2010—he "cannot...
second-guess managerial discretion." (AU Hr'g Tr. Oct. 25, 2012, 333:6-7.) The ALJ found
that Chan was not subjected to illegal employment discrimination when he was issued a
proposed letter of termination on July 24, 2010. (ALJ Decision 9.) Cuevas explained:
Mr. Chan's basic plea.. . is. . . guilty but guilty with an explanation. And once that
happens, it becomes very, very difficult for one to turnaround [sic] and say to a
factfinder, factfinder, you should substitute your decision-making authority for what a
manager may have decided was the right course at that time.
(AU Hr'g Tr. Oct. 25, 2012, 335:17-25.)
On March 11, 2013, USPS adopted and implemented the ALJ decision and the agency
issued a notice of final action to Chan. (EEOC Compl. 4; EEOC Compl. 6.)
F. Linden Hill Supervisors' Awareness of Plaintiffs Protected Activity
USPS supervisors have shown that they were aware of Chan' s EEOC complaints.
Supervisor Hong testified: "I knew I heard about [Chan's] EEO[C] from Ms. Overstreet."
(Silverman Decl. Ex. HH 36:20-22, Oct. 20, 2014, ECF No. 35-3 ("Hong Dep.").) Acting
Manager Francisco Ortiz issued Chan a notice of removal on October 1, 2010, in which he
accused Chan of "once again expos[ing] the mail assigned to you to theft. . . . The doorman[']s
involvement in your actions at [142-18 38 Avenue] are suspicious." (Notice of Removal Oct. 1,
2010 (emphasis added).) Supervisor Marinacci also testified that supervisors at Linden Hill
Station "talk, and would know if an employee had EEO[C] activity." (Pl.'s Mem. of Law in
Opp. to Def.'s Mot. for Summ. J. 6, ECF No. 29 (citing Marinacci Dep. 33) (not made available
to the court).)

27

G. Similarly Situated Employees
In his deposition, plaintiff identified eight similarly situated employees:
Jennifer Tan: An older "Chinese" employee at Linden Hill who began working
there three years before Chan and was supervised by Overstreet. (Silverman
Chan Dep. 255:22-257:16.) Tan allegedly violated postal rules by driving her
personal vehicle without permission, by deviating from the assigned route, and by
leaving her cart unattended. (Id. at 257:4-9, 257:20-25, 272:21-273:9.) Tan was
not disciplined for this conduct. (Id. at 257:21-25, 258:15-16.)
Nelson Hu: An older "Chinese" employee at Linden Hill who began working
there four years before Chan and was supervised by Overstreet. (Id. at 258:1-11,
258:20-259:6.) Hu allegedly violated postal rules by deviating from the assigned
route, and by leaving his cart unattended. (Id. at 259:7-2 1, 273:17-24.)
Marty Murray: An older "White" employee at Linden Hill who retired in 2008
and was supervised by Overstreet. (Id. at 260:16-261:16.) Murray allegedly
violated postal rules by driving his personal vehicle without permission and
deviating from the assigned route. (Id. at 261:8-12.)
Nick Kocefous: An older "White" employee at Linden Hill who was supervised
by Overstreet. (Id. at 261:17-262:13.) Kocefous allegedly violated postal rules
by driving his personal vehicle without permission, by deviating from the
assigned route, and by leaving his cart unattended. (Id. at 262:7-11, 274:14-21.)
Danny Mulhern: An older "Irish" employee at Linden Hill who was supervised
by Overstreet. (Id. at 262:21-263:6, 264:18-19.) Chan alleges that, after Muihern
received a fourteen-day suspension, Mulhern "ma[de] a deal under the table with
the manager" or "ma[de] a deal with the union" and did not receive any further
discipline. (Id. at 263:12-22.) Mulhern allegedly violated postal rules by helping
his wife deliver her USPS route, and by leaving his cart unattended. (Id. at 264:14, 275:4-23.) Mulhern was not disciplined for this conduct. (Id. at 263 :25.)
Elaine Tao: A younger "Chinese" employee at Linden Hill who was supervised
by Overstreet. (Id. at 264:20-256:3, 265:19-20.) Tao allegedly violated postal
rules by leaving her mail unattended near the relay box. (Id. at 276:7-23.) Tao
was not disciplined for this conduct. (Id. at 265:13-18.)
Nolly [Last Name Not Identified]: An older "Filipino" employee at Linden Hill
who was supervised by Overstreet. (Id. at 265:21-266:11, 266:22-23.) The
employee allegedly violated postal rules by driving a personal vehicle without
permission and leaving mail unattended. (Id. at 266:12-16, 277:7-15.)

28

Arnold Powell: A "Filipino" employee at Linden Hill who was about Chan's
age. (Id. at. 266:24-267:9.) Powell violated postal rules by doing his
supplementary route before completing mail deliveries on his regular route, and
by leaving his mail unattended. (Id. at 267:1-14, 277:19-287:3.)
III. Summary Judgment Standard
Summary judgment may only be granted where it is shown that 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). "A genuine dispute of material fact exists for summary judgment purposes
where the evidence, viewed in the light most favorable to the nonmoving party, is such that a
reasonable jury could decide in that party's favor." Zann Kwan v. Andalex Grp. LLC, 737 F.3d
834, 843 (2d Cir. 2013) (internal quotation marks and citation omitted). The substantive law
governing the case will identify those facts that are material, and "[o]nly disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
No genuinely triable factual issue exists "if, on the basis of all the pleadings, affidavits
and other papers on file, and after drawing all inferences and resolving all ambiguities in favor of
the non-movant, it appears that the evidence supporting the non-movant's case is so scant that a
rational jury could not find in its favor." Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86
(2d Cir. 1996). If the movant meets this burden, the non-moving party must provide "specific
facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250 (internal
quotation marks and citation omitted). "When a case is fact-intensive and turns on the intent of
one party, as employment discrimination cases often do, 'trial courts must be especially chary in
handing out summary judgment." Silva v. Peninsula Hotel, 509 F. Supp. 2d 364, 375 (S.D.N.Y.
2007) (quoting Chertkova, 92 F.3d at 87). "The trial court is under a duty in such cases to
IM

carefully scrutinize the record for circumstantial evidence that could support an inference of
discrimination." Id. (citing Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir.
1994)). "[T]he trial court's task at the summary judgment motion stage. . . is confined. . . to
issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224, 1228 (finding that
plaintiff presented sufficient "circumstantial evidence regarding the motivation of the decision
maker who fired her that, if believed, would support her claim of discrimination").
A. Effect of Prior Decision by Independent Tribunal
The Supreme Court has ruled that a negative arbitration decision does not preclude a Title
VII action, but "[t]he arbitral decision may be admitted as evidence and accorded such weight as
the court deems appropriate." Alexander v. Gardner–Denver Co., 415 U.S. 36, 60 (1974).
"Where an arbitral determination gives full consideration to an employee's Title VII rights, a
court may properly accord it great weight." Id. at 60 n.21 (emphasis added).
The Court of Appeals for the Second Circuit has held that:
[A] negative arbitration decision rendered under a CBA does not preclude a Title VII
action by a discharged employee. However, a decision by an independent tribunal that is
not itself subject to a claim of bias will attenuate a plaintiffs proof of the requisite causal
link. Where. . . that decision follows an evidentiary hearing and is based on substantial
evidence, the Title VIIplaintff, to survive a motion for summary judgment, must present
strong evidence that the decision was wrong as a matter offact—e.g., new evidence not
before the tribunal—or that the impartiality of the proceeding was somehow
compromised.
Collins v. N YC. Transit A uth., 305 F.3d 113, 119 (2d Cir. 2002) (emphasis added) (citation
omitted). See also Gallimore Wright v. Long Island R. R. Co., 354 F. Supp. 2d 478, 491-93
(S.D.N.Y. 2005) (holding that arbitrator's finding that plaintiff engaged in the wrongdoing that
defendant charged her with was probative with respect to whether plaintiffs termination was
discriminatory or retaliatory).
30

B. Consideration of Relevant Background Evidence
In Jute v. Hamilton Sundstrand Corp., on a summary judgment motion, the Court of
Appeals for the Second Circuit held that that a district court should consider arguably retaliatory
adverse employment actions that were not "specifically raised" in an EEOC charge because
"loose pleading' is permitted before the EEOC" and "[a] complaint of retaliation 'could
reasonably be expected to inquire into other instances of alleged retaliation." 420 F.3d 166,
176-78 (2d Cir. 2005) (citations omitted). See also Chin v. Port Auth. ofNY. & NJ., 685 F.3d
135, 150 (2d Cir. 2012) (holding that as long as at least one alleged adverse employment action
occurred within the applicable filing period for a Title VII claim, evidence of an earlier alleged
retaliatory act may constitute relevant background evidence) cert. denied sub nom. Eng v. Port
Auth.

off. Y &NJ,

133 S. Ct. 1724 (2013); Morris v. Town of Islip, No. 12-CV-2984, 2014

WL 4700227, at *16 (E.D.N.Y. Sept. 22, 2014) ("claims that were not asserted before the EEOC
may be pursued in a subsequent federal court action if they are reasonably related to those
that were filed with the agency") (internal quotation marks and citations omitted).
IV. Law
A. Statutes
Plaintiff sues under Title VII and the ADEA. Title VII reads in relevant part:
All personnel actions affecting employees.. . in the United States Postal Service...
shall be made free from any discrimination based on race, color, religion, sex, or national
origin.
42 U.S.C. § 2000e-16 (2014).
The ADEA states, in relevant part, that it is "unlawful for an employer" to:
discharge any individual or otherwise discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of such
individual's age[,]
31

[and/or]
discriminate against any of his employees. . . because such individual. . . has opposed
any practice made unlawful by this section, or because such individual. . . has made a
charge, testified, assisted, or participated in any manner in an investigation, proceeding,
or litigation under this chapter.
29 U.S.C. § 623(a)(1), (d) (2014).
B. Exhaustion of Administrative Remedies Standard
A precondition to filing an action in federal court under Title VII is a plaintiff's timely
charge of discrimination with the EEOC. See 42 U.S.C. § 2000e-5(e)(1). "The purpose of this
exhaustion requirement is to give the administrative agency the opportunity to investigate,
mediate and take remedial action." Brown v. Coach Stores Inc., 163 F.3d 706, 712 (2d Cir.
1998) (international quotation marks and citation omitted). Provided a federal employee did not
begin the administrative review process with respect to an ADEA claim, a federal employee may
proceed with an ADEA claim directly to a district court within ninety days of giving notice to the
EEOC of intention to file. 42 U.S.C. § 2000e-5(e)(3)(B)(1); Henry v. Donahoe, 931 F. Supp. 2d
441 3 447 n.3 (E.D.N.Y. 2013) appeal dismissed, No. 13-1464 (2d Cir. Sept. 19, 2013).
C. Discrimination Claims Standard
In evaluating discrimination claims brought under Title VII or the ADEA, courts apply
the burden shifting analysis in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-5 (1973).
"This framework, which was developed in the context of claims for discrimination under Title
VII, applies to claims of age discrimination under the ADEA." Bucalo v. Shelter Island Union
Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012) (citing Gorzynski v. JetBlue Airways Corp.,
596 F.3d 93, 107, 110 (2d Cir. 2010)).

32

1. Plaintiff's Burden: Prima Facie Case
Under the McDonnell Douglas burden shifting framework, a plaintiff must first establish
a prima facie case of discrimination by showing: "(1) that he belonged to a protected class;
(2) that he was qualified for the position he held; (3) that he suffered an adverse employment
action; and (4) that the adverse employment action occurred under circumstances giving rise to
an inference of discriminatory intent." Holcomb v. Iona Coil., 521 F.3d 130, 138 (2d Cir. 2008).
The burden of establishing a prima facie case of employment discrimination has been described
as "modest," Viola v. Philips Med. Sys. off. Am., 42 F.3d 712, 716 (2d Cir. 1994), or even
"minimal," Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001).
a. Stray Remarks Insufficient to Establish Prima Facie Case
"In the absence of a clearly demonstrated nexus to an adverse employment action, stray
workplace remarks are insufficient to defeat a summary judgment motion." Almonord v.
Kingsbrook Jewish Med. Or., No. 04-CV-4071, 2007 WL 2324961, at *9 (E.D.N.Y. Aug. 10,
2007) (citation omitted) (citing cases). "It is well established that 'the stray remarks even of a
decision-maker, without more, cannot prove a claim of employment discrimination."
Hasemann v. United Parcel Serv. ofAm., Inc., No. 11-CV-554, 2013 WL 696424, at *6 (D.
Conn. Feb. 26, 2013) (quoting Abdu—Brisson v. Delta Airlines, Inc., 239 F.3d 456, 468 (2d Cir.
2001)) (citing cases). See also Buckman v. Calyon Sec. (USA) Inc., 817 F. Supp. 2d 322, 355
(S.D.N.Y. 2011) (finding that isolated alleged comment that worker "was a good fit for sales
because he is white" was not probative of whether plaintiff was discharged because of his race);

cf Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) ("[M]ere utterance of an epithet which
engenders offensive feelings in a[n] employee. . . does not sufficiently affect the conditions of
employment to implicate Title VII.") (internal quotation marks and citation omitted).
33

b. Inference Against Discrimination

An "inference against discrimination exists where the person who participated in the
allegedly adverse decision is also a member of the same protected class." Drummond v. IPC
Int'l., Inc., 400 F. Supp. 2d 521, 532 (E.D.N.Y. 2005). If a decision maker is in the same
protected class as plaintiff, claims of discrimination become less plausible. Id.; see also
Williams v. Brooklyn Union Gas Co., 819 F. Supp. 214, 225 (E.D.N.Y. 1993) (dismissing age
discrimination claims where the employees responsible for plaintiffs termination were older
than plaintiff or approximately the same age).
2. Employer's Burden: Articulate Non-Discriminatory Reason for
Employment Action

If the plaintiff establishes a prima facie case, the burden then shifts to the employer to
"articulate some legitimate, nondiscriminatory reason for [the adverse action]." Holcomb, 521
F.3d at 138 (internal quotation marks and citation omitted). The employer's burden of showing a
legitimate non-discriminatory reason for its actions does not present a steep hurdle. It is a
burden of "production, not persuasion; it can involve no credibility assessment." Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (internal quotation marks and
citation omitted). "Evidence that an employer made a poor business judgment in discharging an
employee generally is insufficient to establish a question of fact as to the credibility of the
employer's reasons." Dister v. Cont'l Grp., Inc., 859 F.2d 1108, 1116 (2d Cir. 1988) (citation
omitted).
3. Assessing Whether Employer's Stated Reason is Pretextual

Should the employer satisfy its burden by articulating a non-discriminatory reason for the
employment action in question, the McDonnell Douglas framework and its presumptions and
34

burdens disappear, leaving the sole remaining issue of "discrimination vel non." Reeves, 530
U.S. at 142-43 (citation omitted). "In short, [in order to assess pretext], the district court must
decide which party's explanation of the employer's motivation it believes." United States Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983).

D. Retaliation Claim Standard
The McDonnell Douglas burden-shifting framework "applies to claims.. . of retaliation
under Title VII and the ADEA." Bucalo, 691 F.3d at 129 (citation omitted). The Court of
Appeals for the Second Circuit recognizes:
If it were clear law that an employee who reported discrimination. . . could be penalized
with no remedy, prudent employees would have a good reason to keep quiet about
[discrimination] offenses against themselves or against others. This is no imaginary
horrible given the documented indications that fear of retaliation is the leading reason
why people stay silent instead of voicing their concerns about bias and discrimination
Nothing in the statute's text or our precedent supports this catch-22.
Crawford v. Metro. Gov't of Nashville, 555 U.S. 271, 279 (2009) (internal quotation marks and
citations omitted).

1. Plaintiff's Burden: Prima Facie Case
The Court of Appeals has described the first stage of the retaliation burden-shifting
analysis as follows:
First, the plaintiff must establish a prima facie case of retaliation by showing:
(1) participation in a protected activity; (2) that the defendant knew of the protected
activity; (3) an adverse employment action; and (4) a causal connection between the
protected activity and the adverse employment action. The plaintiff's burden in this
regard is de minimis, and the court's role in evaluating a summary judgment request is to
determine only whether proffered admissible evidence would be sufficient to permit a
rational finder of fact to infer a retaliatory motive.
Hicks v. Baines, 593 F.3d 159, 164-65 (2d Cir. 2010) (internal quotation marks and citations
omitted).
35

a. First Prong: Engagement in Protected Activity
"The term 'protected activity' refers to action taken to protest or oppose statutorily
prohibited discrimination," Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000),
superseded by statute on other grounds by N.Y.C. Local L. No. 85, and may take the form of
either formal or informal complaints, Conway v. Microsoft Corp., 414 F. Supp. 2d 450, 466
(S.D.N.Y. 2006). Filing a formal complaint of discrimination with an administrative agency is
protected activity. See Kotcher v. Rosa & Sullivan Appliance Or., 957 F.2d 59, 65 (2d Cir.
1992).
b. Second Prong: Employer's Awareness of Protected Activity
To constitute protected activity, the plaintiff's conduct must have "put the employer on
notice" that the plaintiff believed that discrimination was occurring. Penberg v. HealthBridge
Mgmt., 823 F. Supp. 2d 166, 191 (E.D.N.Y. 2011). A defendant will be considered to have been
put on notice in circumstances where the plaintiff filed a formal complaint with an administrative
agency. See 42 U.S.C. § 2000e-5(b) (noting that after an EEOC complaint has been filed, "the
Commission shall serve a notice of the charge" to the employer within ten days).
c. Third Prong: Adverse Employment Action
The term "adverse employment action" refers to one or more actions that change the
terms and conditions of an individual's employment. See, e.g., Joseph v. Leavitt, 465 F.3d 87,
90 (2d Cir. 2006) (internal quotation marks and citation omitted). The action must be "more
disruptive than a mere inconvenience or an alteration of job responsibilities." Id. (internal
quotation marks and citation omitted). Termination satisfies the third prong of the prima facie
retaliation test. See, e.g., Lewis v. N YC. TransitAuth., No. 04-CV-2331, 2014 WL 1343248, at
*15 (E.D.N.Y. Mar. 31, 2014) (citing Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008)).
36

d. Fourth Prong: Causal Connection between Adverse Action and
Protected Activity
Proof of causation can be shown indirectly. Hicks, 593 F.3d at 170 (internal quotation
marks and citation omitted). A plaintiff can successfully do so "by showing that the protected
activity was followed closely by discriminatory treatment, or through other circumstantial
evidence such as disparate treatment of fellow employees who engaged in similar conduct." Id.
i.

Temporal Proximity

The Court of Appeals for the Second Circuit has indicated that up to a seven-month gap
between protected activity and an adverse employment action is "not prohibitively remote."
Summa v. Hofstra Univ., 708 F.3d 115, 128 (2d Cir. 2013) (citation omitted). See also
Gorzynski, 596 F.3d at 110 ("[W]e have previously held that five months is not too long to find
the causal relationship."). "We have not drawn a bright line to define the outer limits beyond
which a temporal relationship is too attenuated to establish a causal relationship between the
exercise of a federal constitutional right and an allegedly retaliatory action." Espinal v. Goord,
558 F.3d 119 5 129 (2d Cir. 2009) (internal quotation marks and citation omitted).
ii.

Similarly Situated Comparators

An "all material respects" standard applies to assessing similarly situated comparators.
Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000). The standard requires "a plaintiff
[to] show that [his or] her co-employees were subject to the same performance evaluation and
discipline standards... [and] that. . . the employees who went undisciplined engaged in
comparable"—albeit "not [] identical"—"conduct." Id. (internal quotation marks and citations
omitted).
What constitutes "all material respects" therefore varies somewhat from case to case and.
must be judged based on (1) whether the plaintiff and those he maintains were
37

similarly situated were subject to the same workplace standards and (2) whether the
conduct for which the employer imposed discipline was of comparable seriousness. In
other words, there should be an objectively identifiable basis for comparability. Hence,
the standard for comparing conduct requires a reasonably close resemblance of the facts
and circumstances of plaintiff's and comparator's cases, rather than a showing that both
cases are identical.
Id. (internal quotation marks and citations omitted).
"Whether two employees are similarly situated ordinarily presents a question of fact for
the jury," and not one to be resolved on a dispositive motion. Id. at 39 (citation omitted). In
Matusick v. Erie Cnly. Water Auth., the Court of Appeals for the Second Circuit explained:
[Even though] none of the[] employee[] [comparators] had as extensive a history of
behavior potentially subject to legitimate discipline as did [plaintiff],. . . it does not
follow that they cannot serve as comparators.... There may not have been anyone at the
[Water Authority] who engaged in exactly the same misconduct as did [plaintiff], but this
does not preclude the jury from considering the way that other employees who also
engaged in disciplinable on-the-job misconduct were treated.
757 F.3d 31, 54 (2d Cir. 2014) (affirming denial of defendants' Rule 50 motions).
2. Employer's Burden: Articulate Non-Retaliatory Reason for Employment
Action
"Once the plaintiff has established a prima facie showing of retaliation, the burden shifts
to the employer to articulate some legitimate, non-retaliatory reason for the employment action."
Kwan, 737 F.3d at 845 (citation omitted). After the defendant does so, "the presumption of
retaliation arising from the establishment of the prima facie case drops from the picture." Id.
"Federal courts do not have a 'roving commission to review business judgments,' and may not
'sit as super personnel departments, assessing the merits—or even the rationality—of employers'
non-discriminatory business decisions." Greene v. Brentwood Union Free Sch. Dist., 966 F.
Supp. 2d 131, 156 (E.D.N.Y. 2013) (internal quotation marks and citations omitted).

38

3. Assessing Whether Employer's Stated Reason is Pretextual
In order to successfully rebut an employer's purported non-discriminatory reason for the
employment action, the plaintiff must establish pretext. Kwan, 737 F.3d at 845. Retaliation
must be shown as the "but-for" cause of the adverse action. Id. The standard for establishing
pretext is summarized as follows:
The Supreme Court recently held that a plaintiff alleging retaliation in violation of Title
VII must show that retaliation was a "but-for" cause of the adverse action, and not simply
a "substantial" or "motivating" factor in the employer's decision. However, "but-for"
causation does not require proof that retaliation was the only cause of the employer's
action, but only that the adverse action would not have occurred in the absence of the
retaliatory motive.
A plaintiff may prove that retaliation was a but-for cause of an adverse employment
action by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions
in the employer's proffered legitimate, nonretaliatory reasons for its action. From such
discrepancies, a reasonable juror could conclude that the explanations were a pretext for a
prohibited reason.
Id. at 845-46 (citations omitted).
"The determination of whether retaliation was a 'but-for' cause, rather than just a
motivating factor, is particularly poorly suited to disposition by summary judgment, because it
requires weighing of the disputed facts, rather than a determination that there is no genuine
dispute as to any material fact." Id. at 846 n.5. See also Henry v. Metro. Transp. Auth., No. 07CV-3561, 2014 WL 4783014, at *19 (S.D.N.Y. Sept. 25, 2014) ("While a jury may find, after a
trial, that [the chief in charge of submitting candidates for promotion] did conduct an
investigation and that her investigation is probative of [defendant]'s lack of retaliatory motive,
that finding will be one of fact, not law.")

39

V.

Application of Law to Facts
A. Exhaustion of Administrative Remedies
1. Race and Age Discrimination Claims
Plaintiff satisfies the preconditions required to file this action with respect to his race and

age claims. See supra Part IV.B. After the ALJ issued a decision, which was premised on
Chan's charges of race and age discrimination and retaliation, Chan was provided a notice of
right to file a civil action. (Feuerstein Decl. ¶IJ 44-45, 67-68.) His complaint, alleging
discrimination based on national origin, race and age, and retaliation was filed within ninety days
of USPS's final agency decision dated March 8, 2013. 42 U.S.C. § 2000e-5(e)(3)(B)(1).
2. National Origin Discrimination Claim
Because Chan did not exhaust available administrative remedies with respect to his Title
VII national origin discrimination claim, he cannot assert the claim now. Id.
Defendant's motion for summary judgment regarding chan's national origin claim is
granted.
B. Discrimination Claims
1. Race
Chan cannot establish a prima facie claim of race-based discrimination because he cannot
link any of the adverse employment actions he experienced to circumstances giving rise to an
inference of discrimination. See supra Part W.C. 1. The only clear race-based allegation stems
from stray comments made to him by an immediate supervisor in 2005. Chan alleges that
Overstreet joked about the way Chan spoke English, mimicked his accent, and asked him how to
spell words like "library," "whatever," and "hour." (Chan Deci. ¶J 8-9.) This is insufficient to

ELI

support an inference of race discrimination under the McDonnell Douglas framework. See supra
Part IV. C.l.a.
Defendant's motion for summary judgment regarding Chan's race-based claim is granted.
2. Age
Chan fails to support a prima facie claim of age-based discrimination. He cannot link any
of the adverse employment actions he experienced to circumstances giving rise to an inference of
age discrimination. See supra Part IV. C. 1. Chan only alleges that Hong commented that a
floater mail carrier, twenty-seven-year-old Joseph Alini, who covered Chan's mail route on his
days off, was able to deliver mail faster than Chan and needed less overtime. (Silverman Chan
Dep. 129:10-13.) This single remark, even if construed in a way that implicates Chan's age, is
insufficient to establish a facially plausible age discrimination claim. See supra Part IV.C. l.a.
Reinforcing this conclusion is the especially well-recognized inference against discrimination
that occurs when a plaintiff alleges discrimination by a member of the same protected class. See
supra Part.IV.C. 1.b. Hong, born in 1956, was approximately the same age as plaintiff. (Def.
Consol. Statement of Undisputed Material Facts Pursuant to 56.1 ¶ 21, ECF No. 35-2.)
Defendant's motion for summary judgment regarding Chan's age discrimination claim is
granted.
C. Retaliation Claim
1. The Arbitration and Administrative Law Judge Decisions Do Not
Sufficiently Consider Background Evidence Underlying Plaintiff's
Allegations of Retaliation
Neither the ALJ decision nor the arbitration decision sufficiently analyze Chan's
retaliation claim in a way that precludes a jury trial. See supra Part III.

41

The arbitration decision fails to do so because the parties stipulated "that the issue to be
decided is 'did management have 'just cause' to issue Mr. Chan a letter of removal dated July
24 5 2010 for failure to safeguard the mail and postal property?' If not, what should the remedy
be?" See supra Part II.E. 1.
Although the case before ALJ Cuevas had a broader scope and was subject to three days
of evidentiary hearings, he did not consider allegations of retaliation that extended beyond the
statute of limitations period. See supra Part II.E.2. Cuevas's reasoning regarding the
admissibility and sufficiency of evidence with respect to Chan' s retaliation claim does not
comport with Second Circuit precedent. See supra Part III.B. The Court of Appeals for the
Second Circuit has consistently held that allegations of retaliation that extend beyond the
limitations period should be considered as background evidence in order to appropriately assess
the validity of a retaliation claim. See, e.g., Jute, 420 F.3d at 176 (finding that when an
employee's allegations of retaliation extend beyond the limitation period, the circumstances
surrounding the claim will determine precisely what consideration is owed to the time-barred
conduct). In Jute, the court found that that the district court's decision "not to 'consider' those
alleged instances of adverse employment action [outside the limitations period] . . . significantly
altered the nature of [plaintiff]'s case." Id. at 177. The background evidence showed "a chain of
events" supporting plaintiff claim. Id.
Collins, relied upon by defendant, is inapposite. 305 F.3d 113. In Collins, "the tribunal
received all the available evidence in an evenhanded proceeding and rendered a decision
consistent with the almost overwhelming evidence of [the assault claim]." Id. at 119. The same
cannot be said here because Cuevas refused to consider background evidence probative of
plaintiff's retaliation claim. See supra Part II.E.2. While the ALJ conducted three days of
42

evidentiary hearings, at which multiple witnesses testified, his ultimate decision was restricted to
assessing the validity of unique disciplinary actions on their face. Ignored was the critical
question: Whether the facts assessed as a whole indicated that Linden Hill supervisors had
targeted Chan for removal as opposed to other comparators. Id. The AL's analysis of Chan's
retaliation claim started at the endpoint of the claim, not at its inception when the claimed causes
of abuse allegedly began metastasizing. See generally Part II.C.
Because Cuevas did not consider critical background evidence, his findings regarding
"but-for" causation with respect to Chan's retaliation claim—a heavily fact-based inquiry that is
not suited to disposition at the summary judgment stage, Kwan, 737 F.3d at 846—cannot be
relied upon.
2. Plaintiff Has Established a Prima Facie Showing of Retaliation and

Sufficiently Alleged Pretext
Chan alleges that his supervisors—in retaliation for his race- and age-based complaints
filed with the EEOC—collectively sought to build a disciplinary record against him that
ultimately resulted in his removal. Chan satisfies the first three prongs of the prima facie
retaliation test. See supra Part IV.D. La–c. First, he participated in protected activity on six
occasions. See supra Parts II.D & IV.D. La. Second, sufficient evidence has been marshalled to
demonstrate that defendant was aware of plaintiff's protected activity. See supra Parts II.F. &
IV.D. Lb. Third, plaintiff's termination is considered an adverse employment action. See supra
Part IV.D.l.c.
Defendant argues that plaintiff fails the fourth prong of the prima facie retaliation test
because he cannot establish that his protected activity caused his termination. (Reply Mem. of
Law in Supp. of Def.'s Mot. for Summ. J. 11-16, ECF No. 3 5-1.) Defendant claims that the
43

comparators discussed by Chan in his deposition are not sufficiently similar in "all material
respects." Id. (citing Fordham v. Islip Union Free Sch. Dist., No. 08-CV-2310, 2012 WL
3307494, at *9 (E.D.N.Y. Aug. 13, 2012) (citation omitted)). Defendant, however, omits a
constructive discussion of the "all material respects" standard. See supra Part IV.D.1.d.ii. In his
deposition, plaintiff identified eight comparators. See supra Part II.G. The detail with which
Chan describes these comparators indicates that a reasonable jury could find that Chan was
disparately treated when compared to employees who engaged in similar conduct.
Chan has satisfied his burden of establishing pretext by relying on weaknesses in USPS's
proffered reasons for terminating plaintiff—i.e., violation of USPS regulations governing mail
carriers. A chain of events dating back to 2005 supports his claim that Linden Hill station
managers collectively sought to build a disciplinary record against him that would eventually
result in his official termination. See generally supra Part II.C. This is sufficient for Chan to
proceed to trial. See, e.g., Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 105-7 (2d
Cir. 200 1) (discrimination case highlighting weaknesses in employer's proffered reasons for
treatment of plaintiff); Canton v. Mystic Transp., Inc., 202 F.3d 129, 136-37 (2d Cir. 2000)
(same); Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 156-57 (2d Cir. 1998)
(same), superseded by statute on other grounds as stated in Hilton v. Wright, 673 F.3d 120 5 128
(2d Cir. 2012); EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994) (same) (collecting
cases).
This finding gives weight to the Court of Appeals for the Second Circuit declaration that
"there is a need for caution about granting summary judgment to an employer in a discrimination
case where the merits turn on a dispute as to the employer's intent." Kwan, 737 F.3d at 843
(internal quotation marks and citation omitted). See also Viola, 42 F.3d at 716 ("A grant of

summary judgment [in an employment discrimination case] is proper only if the evidence of
discriminatory intent is so slight that no rational jury could find in plaintiff's favor."). A long
history of evidence of what was possibly unlawful animus leading up to Chan' s termination
should be considered at a jury trial.
Defendant's motion for summary judgment regarding Chan's retaliation claim is denied.
VI.

Conclusion
Defendant's motions for summary judgment regarding plaintiff's national origin, race

and age discrimination claims are granted. The Postmaster General's motion for summary
judgment with respect to retaliation is denied.
Trial shall start on March 9, 2015. A jury will be selected by a magistrate judge.
In limine motions will be heard on March 2, 2015 at 10:00 a.m.
By February 23, 2015, the parties shall each submit to the court a full proposed jury
charge and verdict sheet, in limine motions, and any supporting briefs. They shall exchange and
file with the court: (1) lists of pre-marked exhibits proposed for use at trial, together with copies
of all exhibits; (2) lists of potential witnesses together with brief summaries of proposed
testimony; and (3) stipulations with respect to all undisputed facts.
Any disputes related to briefing schedules or discovery are respectfully referred to the
magistrate judge.

45

SQ ORDERED.

Sack B. Weinstein
Senior United States District Judge
Dated: December 4, 2014
Brooklyn, New York

46