FREEMAN v. BRENNAN et al
MEMORANDUM OPINION & ORDER granting in part, denying in part 40 Motion for Summary Judgment filed by MEGAN J. BRENNAN. Signed by Magistrate Judge Robert C. Mitchell on 3/27/2017. (spc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MEGAN J. BRENNAN, UNITED STATES
Civil Action No. 15-1102
Magistrate Judge Mitchell
MEMORANDUM OPINION AND ORDER
Plaintiff, Alfonso Freeman, brings this action against Defendant, Megan J. Brennan,
United States Postmaster General, alleging a claim of racial discrimination under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (Title VII), and a hybrid claim under
39 U.S.C. § 1208(b) arising out of his termination, effective June 22, 2014, from his position as a
Motor Vehicle Operator with the United States Postal Service (Postal Service). Plaintiff
contends that the Postal Service discriminated against him on the basis of his race (African
American) and that it breached the Collective Bargaining Agreement by relying upon an accident
for which he received only counseling in terminating his employment while his Union breached
its duty of fair representation by withdrawing his grievance.
Currently pending before the Court is a motion for summary judgment, filed by
Defendant. Plaintiff has filed a brief in opposition and Defendant has filed a reply brief. For the
reasons that follow, the motion will be granted with respect to Count II of the Amended
Complaint and denied with respect to Count I.
Plaintiff worked at the Postal Service’s General Mail Facility as a Postal Support
Employee (PSE) Motor Vehicle Operator (MVO) from January 19, 2013 to June 22, 2014.
(Freeman Dep. 88:2-71; Def.’s App. Ex. B at 1-2; Ex. K; Traficanti Decl. ¶ 32). Plaintiff was
hired by Anthony Battle, Transportation Manager. (Battle Dep. 109:9-10.)3 As a PSE, Plaintiff
was a non-career, bargaining unit employee whose rights under the Collective Bargaining
Agreement (CBA) between the Pittsburgh Metro Area American Postal Workers Union (Union)
and the Postal Service were limited. Defendant states that, for example, Plaintiff did not have a
regular schedule, work hour guarantees, or rights to the full range of progressive discipline. (ECF
No. 42 Ex. C at 35, 38; Jones Dep. 13:8-14, 14:25, 15:1-13, 45:1-8; 46:15-19, 47:11-18, 66:1217, 80:1-12;4 Dziubinski Dep. 48:17-20;5 Traficanti Decl. ¶¶ 1, 4.) However, the Memorandum
of Understanding between the Union and the Postal Service actually states that:
The full range of progressive discipline is not always required for PSEs; however,
the parties agree that an appropriate element of just cause is that discipline be
corrective in nature, rather than punitive.
(ECF No. 42 Ex. D.) See also Jones Dep. 15:10-11 (“the memorandum says that they are not
always entitled to full range.”)
During the relevant time, Plaintiff held a Class B Commercial Driver’s License.
(Freeman Dep. 15:21-16:25.) During his employment with the Postal Service, Plaintiff received
approximately 15.5 hours of driver training. (ECF No. 42 Ex. J at 1, 2-5; Fox Decl. ¶ 56.)
Plaintiff received training specific to defensive driving, including but not limited to, the
Defensive Driver Course for Postal Delivery Vehicle Operators, Course No. 4360106. (ECF No.
42 Ex. J at 1-5; Ex. M at 4, 18-19, 22, 28.) He was required to follow safe driving practices and
to comply with all state and local traffic laws and Postal Service driving policies. (ECF No. 42
Def.’s App. (ECF No. 42) Ex. A.
ECF No. 42 Ex. L.
ECF No. 42 Ex. I.
ECF No. 42 Ex. E.
ECF No. 42 Ex. G.
ECF No. 42 Ex. EE.
Ex. C at 166; Traficanti Decl. ¶ 5; Fox Decl. ¶¶ 6-10; Ex. J at 1; Ex. M at 8; Ex. N at 40; Ex. O at
During the relevant time, Plaintiff had three supervisors. Dorothy Bradshaw was a Tour
1 (night) Supervisor, Transportation Operations, and supervised Plaintiff when he worked on that
shift. (Bradshaw Dep. 8:17-247; Battle Dep. 38:11-13.) Glenn Ramsey was a Tour 2 (day)
Supervisor, Transportation Operations, and supervised Plaintiff when he worked on that shift.
(Battle Dep. 38:11-13.) Tom Dziubinski was a Tour 3 (afternoon) Supervisor, Transportation
Operations, and supervised Plaintiff when he worked on that shift. (Ramsey Dep. 11:12-148;
Dziubinski Dep. 11:5-7; Battle Dep. 38:11-13.)
Duties of a Supervisor, Transportation Operations, include oversight of drivers who
operate Postal Service commercial vehicles for purposes of transporting bulk mail from one
postal facility to another, as well as picking up mail from customers’ facilities. (Bradshaw Dep.
11:1-12:12.) Duties of a Supervisor, Transportation Operations, also include deciding Step 1
grievances. (Battle Dep. 23:15-24.)
During the relevant time, Anthony Battle, Transportation Manager (formerly called the
Postal Vehicle Service (PVS) Manager), supervised Bradshaw, Ramsey and Dziubinski. (Battle
Dep. 5:17-20, 24:3-11, 37:23-38:7.) Duties of the Transportation Manager include deciding
grievance appeals at Step 2. (Battle Dep. 23:25-24:14.)
The Postal Service defines a Motor Vehicle Accident as follows:
Motor Vehicle Accident. Any accident involving a motor vehicle that:
• Is operated for official Postal Service business (no matter who owns the
• Results in death, injury, or property damage of 1 dollar or more (unless the
vehicle is properly and legally parked).
ECF No. 42 Ex. F.
ECF No. 42 Ex. H.
The following factors are not considered in determining if a motor vehicle accident has
• Who was injured.
• What property was damaged (and to what extent).
• Where the accident occurred.
• Who was responsible.
(ECF No. 42 Ex. M at 3.)
Plaintiff had three motor vehicle accidents during his employment with the Postal
Service. (Freeman Dep. 41:18-20, 42:4-23; Dziubinski Dep. 52:20-53:5; ECF No. 42 Ex. T.)
Plaintiff testified as follows:
Q: Let me ask you as a general matter, did you take seriously the incidents that
occurred, one, two and three?
Q: Did you understand that they potentially could have resulted in some sort of
disciplinary action, each one?
(Freeman Dep. 87:19-88:1.)
Plaintiff testified further as follows:
Q: And do you think or have you considered that the three incidents had
undermined the confidence that your supervisors had in you as a driver?
A: I understand that part, yes.
(Freeman Dep. 142:18-21.) However, he testified that this was never expressed to him.
(Freeman Dep. 142:22-143:5.)9
March 30, 2013 Accident
The first accident occurred on March 30, 2013, when Plaintiff backed up into and bent a
fence pole at the Blawnox Postal facility while operating an 11-ton truck. (ECF No. 42 Ex. P at
BATTLE 105, 108, 125, 129; Freeman Dep. 42:13-17; Ex. T.) Plaintiff contends that the
Pl.’s App. (ECF No. 48) Ex. 1.
driver’s side edge of the rear liftgate snagged on the fence post as he was navigating in reverse
around the corner, that it was a very tight space, that others had previously hit the fence pole, and
that, as Ramsey admitted, the lot was poorly lit. (Freeman Dep. 55:10-18; ECF No. 48 Ex. 2 at
UNION 41; Ramsey Dep. 17:20-25, 18:9-12; Washington Dep. 14:23-15:6.10)
Plaintiff’s supervisor at the time was Tom Dziubinski, who investigated the accident.
(ECF No. 42 Ex. P at BATTLE 106-07). During the Pre-Disciplinary Interview (PDI), Plaintiff
admitted that, through orientation and being reminded of it every day, he was aware of the Postal
Service’s policy requiring that he work safely at all times. (Id. at BATTLE 109).
No discipline was requested or imposed. (Id. at BATTLE 106.) Plaintiff received
additional driver training. (ECF No. 42 Ex. J at 1; Ex. P at BATTLE 112 (box 64)). Additional
training is not discipline under the CBA. (Jones Dep. 54:10-14.)
March 13, 2014 Accident
The second accident occurred on March 13, 2014, while Plaintiff was operating a 7-ton
truck. (ECF No. 42 Ex. Q at BATTLE 83 (box 68); Ex. T). Plaintiff and a privately operated
vehicle (POV) collided when the POV made a right turn from the left lane as Plaintiff, while in
the right lane (in the same direction), who had stopped his vehicle and was speaking to a
pedestrian, then proceeded straight into the intersection of Allegheny and Western Avenues. (Id.
at BATTLE 69-72, 86, 89, 96; Freeman Dep. 42:18-20.) Plaintiff notes that some of the records
regarding this incident say that he struck the other vehicle, others that it struck him; some
indicate that he checked his clearances before proceeding; and some say the POV driver admitted
that he made an illegal turn (turning right from the left lane) and that he “figured” that Plaintiff’s
vehicle was parked, which was incorrect. (ECF No. 42 Ex. Q at BATTLE 69-72, 96.)
ECF No. 48 Ex. 4.
Plaintiff’s supervisor at the time was Glenn Ramsey, who investigated the accident.
(Ramsey Dep. 23:7-9; ECF No. 42 Ex. Q at BATTLE 83 (box 89), 84-86, 91.) Ramsey
determined that Plaintiff was at fault for the accident. (Ramsey Dep. 25:16-18; ECF No. 42 Ex.
Q at BATTLE 75-76.) Plaintiff disputes that he was at fault and notes that he refused to sign the
letter presented to him that claimed he was at fault. (Ex. Q at BATTLE 69; Freeman Aff. ¶ 4.11)
He also testified that, when Ramsey arrived at the scene of the accident, he “looks at me and says
‘Hey, man. This is not your fault. Continue onto your run.’” (Freeman Dep. 48:21-22.)12
Ramsey requested a 7-day suspension as discipline. (Ex. Q at BATTLE 69, 76.) Battle
decided not to impose a 7-day suspension, but concurred with the request to impose discipline at
a lower level with a Letter of Warning (LOW) instead. (ECF No. 42 Ex. Q. at BATTLE 76;
Battle Dep. 53:6-17.) The LOW states that “future deficiencies will result in more severe
disciplinary action being taken against you. Such action may include suspensions, reduction in
grade and/or pay, or removal from the Postal Service.” The LOW states further that “you were
responsible for an accident that could have been prevented.” (Id. at BATTLE 69.) Plaintiff
refused to sign the LOW. (Ramsey Dep. 37:1-9.)
Ramsey agreed to further reduce Plaintiff’s discipline to a one-year LOW at Step 1 of the
grievance process. (ECF No. 42 Ex. U at WJ 70; Ramsey Dep. 37:15-38:4.) He testified as
Q: Okay. Now, were you the one who ascribed fault for that accident to Mr.
Q: And just so the record’s clear, why did you ascribe fault to Mr. Freeman for
that incident that took place on March 13, 2014 at the intersection of Western
ECF No. 48 Ex. 8.
Plaintiff also points to testimony by Alvin Washington, another PSE, that he assumed that
Plaintiff was not at fault for the second accident because he was allowed to continue his run that
day. (Washington Dep. 14:10-22.) (ECF No. 48 Ex. 4.)
Avenue and Allegheny Avenue?
A: Because I felt he could have avoided it if he would have paid attention.
Q: Before you made your determination on that, did you speak with Mr. Battle?
A: No. When it’s a letter of warning, I don’t have to speak. I can make that
determine -- for a letter of warning, I can determine that on my own.
(Ramsey Dep. 38:5-21.) Ramsey was asked about the fact that the driver of the POV had made
an illegal turn, and he responded: “I still think he [Freeman] could have avoided hitting it.”
(Ramsey Dep. 52:14-15.)
In a meeting with Battle following the accident, Plaintiff was reminded of the importance
of safety, and advised that if he had another accident, he could be terminated. (Freeman Dep.
62:2-12; Ex. Q at BATTLE 74). Plaintiff received additional driver training, including defensive
driving. (ECF No. 42 Ex. J at 1, 3.)
William Weisser, a Union Steward and Postal Service driver, testified as follows:
Q: So when a vehicle makes an illegal turn in front of a driver, would you, as a
truck driver yourself, ascribe fault for an accident to the truck driver?
A: Without being in the seat, I couldn’t tell you. But I know it happens on a
regular basis. You have to be aware of your surroundings.
Q: Would that truck driver be aware of their surroundings if they checked the left
mirror, checked the right mirror, and then checked the left mirror again before
A: Once again, if I wasn’t in the seat, I can’t tell you.
Q: But if you were in the seat and you checked the left mirror and you checked
the right mirror and then you checked the left mirror again –
A: You still have to check in front of you.
Q: All right.
A: I’ve been driving 30 years.
(Weisser Dep. 6:9-15, 22:18-21, 24-25, 23:1-15.)13
May 13, 2014 Accident and Removal
The third accident occurred on May 13, 2014, while Plaintiff was operating an 11-ton
truck. (ECF No. 42 Ex. R at BATTLE 55 (box 69); Freeman Dep. 42:21-23). While traveling
ECF No. 42 Ex. AA.
inbound in heavy, bumper-to-bumper traffic on the Parkway East, Plaintiff struck the rear of a
POV when he took his eyes off the road to look down at his schedule. At his deposition,
Plaintiff testified that there was “something wrong with the brakes” and that he told the Postal
Service about it at the time. (Ex. R at BATTLE 26-27, 31-32, 50, 54, 58-59, 65; Freeman Dep.
64:3-12, 24-25, 65:1.)14
Plaintiff notes that an earlier version of this accident report states that he:
had foot on brake pedal and thought that vehicle was stopped. Next thing he knew
he struck the vehicle (a SUV) in front of him in the rear.
(ECF No. 48 Ex. 7 at BATTLE 39.)15 However, even this statement is ambiguous—it does not
make clear whether Plaintiff’s foot was on the brake pedal when the vehicle drifted forward.
More importantly, nowhere in the investigation, including the handwritten statement that he
submitted at the time, is there any reference to a problem with the brakes. (ECF No. 42 Ex. R at
BATTLE 31-34, 53-58.) Rather, his handwritten statement, created on the same day the accident
occurred, described what happened as follows:
I was inbound on Parkway East traffic was heavy I was stopped behind a SUV so
I took the time out to take a quick look at the schedule[;] it was a route I was not
familiar with the times on the schedule were inked over and very hard to make out
as I was trying to make out what the [sic] I was due back to the PDC the truck
drifted into the back of the SUV that was in front of me.
(Ex. R at BATTLE 58; Freeman Dep. 95:4-14, 96:12-14.)
The accident report contains the statement “Had foot on the brake and was looking at his
schedule. Not paying attention and drifted into the rear of the vehicle in front of him.” (Ex. R at
BATTLE 54, ¶ 36.) However, this statement is ambiguous and there is nothing in the record to
support the meaning that the vehicle drifted forward even though he had his foot on the brake. It
would appear that the statement “not paying attention” meant that he allowed his foot to slip off
of the brake and that is why the vehicle drifted forward.
Plaintiff also contends that the reports improperly relied on “hearsay” from the POV’s
unsigned and unnotarized statement. (ECF No. 47 ¶ 46.) However, the reports were prepared by
the Postal Service as an employer, not for the purpose of being submitted to a court, and thus the
hearsay argument is inappropriate.
He also argues that Charles McCloskey, whose accidents are discussed below, reported a
faulty braking system and his “advisement was not met with disregard.” (ECF No. 50 at 8.)
However, the record he cites contains no evidence that McCloskey reported a faulty braking
system, much less that it was investigated. See ECF No. 48 Ex. 29 at 113.
Plaintiff also argues that, had the Postal Service not added a sudden, additional stop to his
schedule, he would not have been required to refer to his schedule while stopped in bumper-tobumper traffic and that, had the air brakes worked properly, his truck would not have “drifted”
into the bumper of the vehicle in front of him. (Freeman Dep. 63:1-65:25.) Plaintiff has not
explained how being given an additional stop on his schedule relieved him of the responsibility
to drive safely and as just noted, there is no reference to the brakes being faulty in his
handwritten statement, the accident report or anywhere in the investigation at the time.16
Plaintiff’s supervisor at the time was Tom Dziubinski, who investigated the accident.
(Ex. R at BATTLE 28, 31, 51; Dziubinski Dep. 35:10-11). During the PDI, Plaintiff admitted
that he “was trying to take a quick look at the schedule” and that he could have prevented the
accident “[b]y not looking at his schedule.” (Ex. R at BATTLE 32; Freeman Dep. 85:1486:14.)17 During the PDI, Plaintiff also admitted that he realized the seriousness of his actions,
that he had two accidents, and how that record could reflect on his driving skills. (Ex. R at
BATTLE 33; Freeman Dep. 86:17-25, 87:15-22.)
On May 15, 2014, Dziubinski requested that Plaintiff be removed from the Postal
Service, and noted that Plaintiff’s prior discipline included an LOW. (Ex. R at BATTLE 28;
The only other reference in the record regarding the brakes is Plaintiff’s Confidential Witness
Affidavit, dated September 15, 2015, during his NLRB proceeding, in which he stated that “I
contend that the vehicle[’]s brakes were not functioning properly because the air brake slack
adjuster were [sic] not properly adjusted.” (ECF No. 42 Ex. BB at 3 ¶ 4.)
Again, no reference was made to the brakes not functioning properly.
Dziubinski Dep. 44:19-24). On May 16, 2014, Battle concurred in Dziubinski’s request for
removal. (Ex. R. at BATTLE 28.) Plaintiff was issued a Notice of Removal, effective June 22,
2014, signed by Dziubinski and dated May 20, 2014, charging him with unsatisfactory
performance and failing to perform his duties in a safe manner. (ECF No. 42 Ex. S at 1-2.)
Dorothy Bradshaw, who had no decision-making role in the removal, presented the Notice of
Removal to Plaintiff on May 22, 2014, in Dziubinski’s absence. (ECF No. 42 Ex. S at 2;
Bradshaw Dep. 21:17-22:12; Dziubinski Dep. 48:7-16.)
Plaintiff testified as follows:
Q: You signed the notice of removal. Was there anything in the notice of removal
that you disagreed with?
A: No. They wanted me to go. I’ll go.
Q: Explain your answer.
A: Explain my answer. Okay. I’ll explain it to you like this. They did not want me
there. There was nothing I could do about it.
Q: What made you think they did not want you there?
A: Because of my attitude.
Q: What makes you think that?
A: Because, like I said, I’m a highly motivated person. And I’m not going to let
you destroy that in me.
(Freeman Dep. 101:1-16.)18 Plaintiff testified further as follows:
Q: Sir, is it your belief that you should have been retained on the job at the postal
service following the three incidents?
A: Why, for the fact of the matter, one incident was just made my fault. The other
incident was a mechanical failure. And the first incident where they say I bent the
pole, everybody claimed the pole was already bent. I snagged the fence.
(Id. at 137:12-21.) Plaintiff notes that the record contains no evidence that there was a claim for
Plaintiff contends that he also testified that he did not agree with the statement that he admitted
he struck a POV or that he had two prior accidents. (ECF No. 47 ¶ 55.) However, the pages of
his deposition in which he allegedly makes these statements (Freeman Dep. 159-60) are not in
damages made. (Dziubinski Dep. 32:1-5.)19 However, he points to no support for his implied
argument that he could be subjected to discipline only if there was vehicle damage. To the
contrary, as noted above, whether property damage occurs is irrelevant in determining if a motor
vehicle accident has occurred. (ECF No. 42 Ex. M at 3.)
Plaintiff’s Union Grievance
The Union filed a Step 1 grievance challenging Plaintiff’s removal on the basis that, inter
alia, the discipline lacked just cause and was punitive in nature and not corrective. (ECF No. 42
Ex. U at WJ 14-15, 19; Jones Dep. 18:11-13.) Following a Step 1 meeting, the Postal Service
denied the grievance on June 5, 2014, stating in a Grievance Summary – Step 1:
The employee has had three accidents in the last 14 months. He has been given
the driver refresher course twice in the same time frame and he still is having atfault accidents. The last two he struck the other vehicle with the front of his
vehicle. We hadn’t even closed the last accident when he had the most recent. We
as a company in dire financial shape cannot tolerate these kind of actions by [our]
(Ex. U at WJ 19-20 (box 12, Reason for Decision).)
The Postal Service stated further in the Grievance Summary – Step 1:
This employee has had numerous accidents in his time with the Postal Service.
There have been 3 in the last 14 months of which 2 were in the last month. We are
a company having financial hardships and we cannot continue to exist running
with part time employees who cost us additional funds to correct their errors.
When does it stop? When someone is severely injured or worse? We have tried to
guide this employee with not one but two refresher classes and he is still not
attentive to his surroundings and/or aware of what he is doing by his own
admission in his statement during the accident investigation. Therefore in the best
interest of the Postal Service we have no other choice than to release this
employee from our company.
(Id. (box 19, Management’s Position)).
On June 13, 2014, the Union pursued Plaintiff’s grievance to Step 2. (Id. at WJ 13; Jones
ECF No. 48 Ex. 6.
Dep. 18:17-22, 21:16-24.) On July 22, 2014, the Postal Service denied the Step 2 grievance in a
letter, which states, in part:
Mr. Freeman was terminated for his inability to perform the required duties of his
position. Specifically, Mr. Freeman failed to operate his vehicle in a safe manner.
He had his third at fault accident on May 13, 2014 since his initial hiring date[,]
January 2013. On this date Mr. Freeman rear ended a POV while driving on the
Parkway East, causing damage to the POV driver[’s] vehicle. Mr. Freeman had
another at fault motor vehicle accident on March 13, 2014 (his second since he
was hired at the time). In this instance Mr. Freeman struck a POV at the
intersection of Western and Allegheny Avenues, carelessly failing to yield or
check his clearance as he is required to do. His first accident occurred on March
13, 2013. He struck a fixed object (a pole) on this occasion while attempting to
into the Blawnox Station parking lot approaching their dock/hydraulic lift. Mr.
Freeman has received ample training to prepare him to complete his driving
duties. He was given four hours of driver Improvement retraining on 3/17/2014 &
one hour of defensive driving retraining on 4/5/2014 in an attempt to assist him in
his duties. This was in addition to his initial driver training, which is given to all
newly hired employees. In light of this it is my conclusion that Mr. Freeman is
incapable of performing the normal duties (driving safely) the USPS requires of
him as a Motor Vehicle Operator. Based on the above, I find no violation of the
National Agreement. Therefore this grievance is denied.
(ECF No. 42 Ex. U at WJ 9; Jones Dep. 25:7-19.) On or about July 26, 2014, the Union
amended the grievance to request pay in lieu of work that Plaintiff was entitled to but did not
receive. (Ex. U at WJ 7-8.)
The Union appealed the decision to arbitration. (ECF No. 42 Ex. U at WJ 4-6, 24; Jones
Dep. 26:23-25.) William Jones, Vice President and Business Manager for the Union (Jones Dep.
Q: As of February 9th, 2015, there was every intention to proceed to arbitration; is
(Jones Dep. 30:18-20). He explained as follows:
A: I appealed it to arbitration based mainly on that they were not compensating
him for the 30 days, that he was entitled to be paid after the effective date of
removal. I also at that time didn’t believe that we could reasonably expect to
prevail in arbitration.
Q: You did?
A: On the removal part. I did not.
Q: You did not. Why did you not, sir?
A: Postal Service, with motor vehicle operators, even career, pretty much
especially with Mr. Battle was the manager, disciplines every driver, that gets -has an accident, and so, being it’s pretty tough to -- for career employees that
have a number of accidents, for a noncareer employee, I didn’t believe the
arbitrator would side with the union and the grievant.
Q: Had you formulated any opinion about the number of accidents that Mr.
Freeman had had?
A: Well, that accident prior I think was less than a month and a half, two months
prior, which is pretty -- pretty quick. And, as I said, this refreshed my memory, I
said I thought he had a third accident, first one prior to that, but he had had -- it's a
little hot – that’s -- career employees don’t have those kinds of accident records,
and I don’t know of too many – don’t know of any PSE’s that have that kind of
(Jones Dep. 28:10-29:11) (objection omitted.) Plaintiff cites another section of Jones’ deposition
in which Jones was asked if he had discussions with the Postal Service about bringing Plaintiff
back to work and he said “At the beginning, I try to get everything I can.” (Jones Dep. 42:20.)
An arbitration hearing, which was scheduled for February 26, 2015, did not occur. (ECF
No. 42 Ex. U at WJ 4; Jones Dep. 39:3-4.) On March 25, 2015, William Jones for the Union,
and Daniel Traficanti for the Postal Service, settled the grievance. (ECF No. 42 Ex. U at WJ 1-3;
Jones Dep. 39:9-11, 20-25, 40:1, 48:22-49:2, 75:8-12; Traficanti Decl. ¶ 8.)20 Plaintiff indicates
that his consent was not sought prior to this agreement to settle the matter. (Jones Dep. 40:6-7.)
The March 25, 2015 Pre-Arbitration Settlement Agreement states:
The grievant will be compensated a lump sum payment of $2,355.00, minus
standard deductions, for pay [in] lieu of the work hours during the 30 days prior to
the removal (6-22-14).
The grievant will have 30 days from the signing of this agreement to submit his
resignation, if he does the resignation will be accepted & the removal expunged
Jones could not explain why the settlement was dated a month after the scheduled hearing
date, but stated that he believed it had been reached prior to the date it was committed to writing.
(Jones Dep. 39:16-23.)
from his record.
If a resignation is not submitted the removal will stand.
(Ex. U at WJ 2; Traficanti Decl. ¶ 9.) Plaintiff did not submit the resignation, and his removal
became effective on June 22, 2014. (Freeman Dep. 118:3-4; Ex. B at 2; Traficanti Decl. ¶ 9.)
Plaintiff responds that his grievance requested reinstatement, not resignation.
Jones testified as follows:
Q: Let me ask you: what were the circumstances leading up to this settlement
A: Mr. [Traficanti] is the first management person entertaining paying him for 30
days, and again, I told you I didn’t have – didn’t believe we would prevail in front
of an arbitrator.
Q: You say again that was because of the number of accidents within a certain
period of time?
Q: And, would that agreement have been worked out between you and Mr.
Q: Did Mr. Freeman have any involvement?
Q: And was the union required to involve Mr. Freeman in whether an agreement
would be reached?
Q: Not by contract, or anything else that would have required the union to involve
(Jones Dep. 37:24-25, 38:1-8, 39:24-25, 40:1, 6-13.) Plaintiff disputes this testimony,
contending that the Postal Service breached the CBA by taking his first accident into
consideration and the Union switched positions, from arguing that his discipline was punitive
rather than corrective in nature to accepting the Postal Service’s position that he had been at fault
in three accidents. (ECF No. 42 Ex. S at 2; Jones Dep. 28:13-29:11, 38:5-8.)
When asked why a provision allowing Plaintiff to submit a resignation in lieu of his
removal was included in the Pre-Arbitration Settlement Agreement, Jones testified:
A: Again, we weren’t pursuing the removal to arbitration, because we didn’t have
reason to believe that we could prove it out, and wanted to go, normally try to
give the person … the opportunity to resign, so they don't have a removal on their
record for when they are seeking future employment.
Q: Okay. Was that requested, did you make the request for him to be able to
change his removal to a resignation?
Q: And, Mr. [Traficanti], obviously, that was eventually agreed to, was that
initially agreed to when you first asked for that?
A: Mr. [Traficanti] was the first one that entertained settling anything on the case
for the 30 days.
(Jones Dep. 41:13-25; ECF No. 42 Ex. U at WJ 2-3.)
He testified further:
Q: How many discussions did you have with [Traficanti], prior to preparing this
A: Probably no more than two or three.
Q: At what point – did you share with him, at any point, that the union believed it
wouldn’t prevail at arbitration?
A: I did when I wrote it, apparently.
Q: Okay. Any attempt prior to that, did you have any discussion -A: Probably in the last discussion, when we were – you know, if they were going
to pay him what he definitely was entitled, then I would consider resolving the
Q: And did you have any discussions with Mr. [Traficanti], about the possibility
of bringing Mr. Freeman back to work?
A: At the beginning, I try to get everything I can.
(Jones Dep. 42:1-3, 10-20; Traficanti Decl. ¶ 10.)
He testified further:
Q: Sir, as you sit here today, is it your position that the union took all of the steps
that were necessary under the contract, to pursue the grievance on behalf of Mr.
Q: At any time was it determined, by the union, that something should have been
done for Mr. Freeman, that wasn’t?
Q: And, at any time was it determined by the union that something should have
been handled differently, with respect to Mr. Freeman’s grievance?
(Jones Dep. 48:8-18.)
Finally, he testified that:
Q: Based on your understanding of the national agreement, the JCIM, and the
MOU, did the union have any obligation to continue pursuit of the grievance,
once the union determined that the arbitration would not be fruitful?
A: Do we have any obligation? No.
Q: And similarly, based on your understanding of the national agreement, the
JCIM and the MOU, did the Postal Service have any authority to continue Mr.
Freeman’s grievance process, if the union decided not to?
Q: You can answer. In other words, the Postal Service doesn’t proceed with these
grievances on behalf of individuals, the union does?
A: The union moves the grievances forward.
Q: Did the union have any obligation to consult with, or include Mr. Freeman on
any of the decision making with respect to any of the steps along the grievance
(Jones Dep. 52:5-24; Traficanti Decl. ¶ 11.)
Daniel J. Traficanti, an experienced Labor Relations Specialist for the Postal Service,
states further that “[b]ased on [his] knowledge of the CBA and procedures in connection with the
grievance process, the Postal Service appropriately and timely responded to each step of the
grievance that the Union pursued on behalf of Mr. Freeman.” (Traficanti Decl. ¶ 12.)
Jones testified further:
Q: At any time throughout the grievance process, as it relates to Mr. Freeman, did
anyone at the Postal Service pressure the union, or try to influence the union to
take a particular course of action?
(Jones Dep. 52:25-53:4.) He explained further with regard to Plaintiff’s March 2014 accident:
Q: So it’s fair to say that in preparation for Mr. Freeman’s grievance, you never
looked at the nature of this incidents that occurred with regard to his record; is
A: No, that’s not fair to say.
Q: Okay. How would you have considered the nature of the incidents that he was
A: He had a number of accidents in a short period of time.
Q: But you never went and looked at the fact that the second incident was not an
at fault incident? You didn’t consider that; is that correct?
A: That case was settled prior to getting into my hands.
Q: Okay. You said that twice already. But the fact of the matter was, you didn’t
have an understanding that the second incident was not at fault?
A: Pulling out from a curb hitting somebody is at fault.
(Jones Dep. 81:15-23, 82:2-12.)
Alleged Race Discrimination
In his Amended Complaint, Plaintiff states:
The Postal Service’s decision to remove Freeman was discriminatory (as he was
African-American and Black) and did not treat him as similarly situated
employees who were white.
(ECF No. 10 ¶ 39.) At his deposition, Plaintiff described himself as “American with African
heritage.” (Freeman Dep. 28:17-18.) The people who Plaintiff believes discriminated against
him on the basis of his race are Dorothy Bradshaw, Glenn Ramsey, Tom Dziubinski and
Anthony Battle. (Freeman Dep. 30:15-21.)
Plaintiff testified as follows:
Q: Can you explain what you mean by color when you say that you were
discriminated against on the basis of your color?
Q: And are you distinguishing that from African-Americans you may consider not
to be black?
A: They call us all black.
Q: So are you making a distinction between your African-American race and your
color? Or, to you, are they one in the same?
A: They are one in the same.
(Freeman Dep. 27:12-22.)
When asked why he believes he was terminated on the basis of his race, Plaintiff testified
A: Why I was terminated on the basis of my race? Well, actually, I refuse that. I
do not accept the fact that you call me black. I consider myself of American
Q: Sir, I’m not attempting to offend you for any reason.
A: I’m just putting that out there. If you call me black, I refuse to be called that. I
guess these people wanted to show me that “you are black.”
Q: Sir, we were talking about why you believe that you were discriminated
against on the basis of your race. I don’t think I let you finish your answer. So you
A: I refuse to be called black because, that, I am not.
Q: You claim in this lawsuit that you believe you were terminated on the basis of
your race; correct?
Q: So you are nodding your head, yes? I am asking you.
A; Because of the color of my skin.
Q: Right. But why?
A: People discriminate against people regardless to me of race, color or whatever.
(Freeman Dep. 28:1-10, 23-25, 29:1-3, 30:1-3, 7-8, 11-14.)
Plaintiff testified further as follows:
Q: Has anybody told you or given you any sort of indication that Mr. Ramsey,
Ms. Bradshaw, Mr. Dziubinski or Mr. Battle didn’t like African-Americans?
Q: Or somehow treated people differently because of their African-American
A: I’m only concerned of me. I don’t get involved in that.
Q: Anybody else that we haven’t discussed who you believe discriminated against
you because of your race?
(Freeman Dep. 39:11-19, 25, 40:1-3.)
Ramsey is African American. (Bradshaw Dep. 24:12-14; Freeman Dep. 31:2-3.) When
asked why he believes Ramsey discriminated against him on the basis of his race, Plaintiff
testified as follows:
A: Because of my -- because, like I said, I refuse to be called black.
Q: Any other reason why you think Mr. Ramsey would discriminate against you?
A: He wanted to prove that I am a black person.
Q: I don’t understand. Can you explain what you mean by that?
A: I refuse to be called black. And people that are Americans of African descent
kind of get offended, or they think you are better than them when you don't allow
them to call you black.
Q: Did you ever have any discussions that you specifically remember with
Mr. Ramsey with respect to that issue?
A: No, other than I don’t accept the fact that you are going to call me that.
Q: Did you specifically tell him you didn’t want to be called black?
(Freeman Dep. 30:25, 31:1, 4-20.)
Plaintiff testified further:
Q: So can you help me understand what that has to do with your termination?
Q: Can you help me understand what this disagreement you had –
A: Because –
Q: Let me finish. What that has to do with your termination?
A: I would not let these people break my will.
Q: Can you explain what you mean by that?
A: I am a highly motivated person, and I’m not going to let anyone take that from
me. And I guess the standards that I keep within me didn’t agree with them. So I
guess it was one of those things where, “Okay. We’re going to show you because
we are bigger than you because we hold these positions.”
(Freeman Dep. 32:2-18). Plaintiff testified further:
Q: So you believe that Mr. Ramsey was trying to exert power over you in some
way because he was a supervisor?
A: They all do it.
Q: The people we just mentioned?
Q: But you believe that’s because of your race?
A: No, because of my color. I refuse to be called black.
Q: Any other reason other than what you have just talked about that makes you
believe that Mr. Ramsey would discriminate against you because of your race?
A: No other reason.
Q: Have you ever heard Mr. Ramsey say anything about having issues with other
people who are of African-American descent?
A: I don’t get into that. All I know is me. If that person doesn’t mind being called
that, then that’s on that person.
Q: So I’ll take that as a no? Would you like me to repeat that question?
A: Can you repeat the question, please?
A: No. Like I said, no, I’m just concerned with me.
Q: Are you specifically aware of anything that would give you reason to believe
that Mr. Ramsey would discriminate against others who are of African heritage?
A: Not that I know of. Like I said, I’m only concerned of me.
(Freeman Dep. 32:25, 33:1-25, 34:1-9.)
Dorothy Bradshaw is African American. (Freeman Dep. 36:16-18; Bradshaw Dep. 8:1-3.)
When asked why he believes Bradshaw discriminated against him on the basis of his race,
Plaintiff testified as follows:
Q: What is it about Ms. Bradshaw that makes you believe she discriminated
against you because of your race?
A: Because, like I said, I refuse to be called black. And this lady literally admitted
to another person that she does not like me.
Q: Did that person say why?
A: Well, like I said, the supervisors down there, they have this thing where they
are in power. And I made a comment where she feels she has the Napoleon
Q: You made that comment about Ms. Bradshaw?
A: Yes. But it wasn’t directed towards her.
Q: Do you know your comment made it back to Dorothy Bradshaw?
A: Yes, it did.
Q: Who was this other person?
A: Joanne Gifford.
Q: Was it your understanding that Joanne was sharing with you that Dorothy
Bradshaw didn’t like you because of the comment you made about her being
Q: Sir, is there any other reason why you think Dorothy Bradshaw would
discriminate against you because of your race?
A: I refuse to be called black.
Q: Any other reason other than that?
A: There is no reason other than that, not that I can think of.
Q: Do you know or are you aware of anything that would give you the idea that
Ms. Bradshaw would discriminate against African-Americans or people of
A: Like I said, I’m only concerned of me. That, I would not know.
(Freeman Dep. 34:15-35:25.)
Plaintiff testified further:
Q: Do you believe there was anything wrong about Ms. Bradshaw giving it [the
Notice of Removal] to you?
Q: What was wrong about that?
A: She wanted to show me she had more power than I thought she had.
(Freeman Dep. 51:14-19.) Plaintiff testified further:
Q: Anything else?
A: I guess they did not like me.
Q: And why, again?
A: Because of my motivation. I would not let anyone break my will or my spirit
or my character.
(Freeman Dep. 52:1-5.)
Dziubinski is Polish. Plaintiff described him as an American of European Descent.
(Freeman Dep. 36:19-23; Dziubinski Dep. 7:5-12.) Plaintiff testified as follows in his deposition
Q: What is the basis for your belief that Mr. Dziubinski would discriminate
against you by terminating you on the basis of your race?
A: I refuse to be called black. And these people are going to show me that “you
are black,” and I am not black.
Q: So when you say that these people are going to show you –
A: I’m talking about the supervisors.
Q: Let me finish. What exactly are you referring to? I need specifics. This is the
time for you to tell me about your lawsuit.
A: Well, ask your question again, please.
Q: When you say these people are going to show you that you’re black, was that
Q: What is it that you mean by that?
A: It’s, like, a class that this country puts us in. You’re either in the black class, or
you’re in the white class. You are in the Chinese class, Japanese, by race.
Q: Keep going.
A: And I refuse to be classified as a color. I just refuse to be classified as a
Q: So what is it that makes you believe that Mr. Dziubinski was classifying you
A: When you call me black.
Q: Anything else?
A: The way that I carry myself.
Q: Do you -- is there anything that has made you believe that Mr. Dziubinski
would discriminate against people who are of African heritage?
A: I’m only concerned of me. I wouldn’t know that.
(Freeman Dep. 36:24-25, 37:1-25, 38:1-8.)
Battle is African American. (Freeman Dep. 38:21-22; Bradshaw Dep. 8:9-11; Battle
Dep. 105:5-7.) Plaintiff testified as follows regarding Battle:
Q: And why do you think -- what makes you believe that Mr. Battle would want
to discriminate against you by terminating you on the basis of your race?
A: I refuse to be called black.
Q: Anything else, sir?
Q: Is there anything that you are aware of that would give you the impression that
Mr. Battle would want to discriminate against people of African descent?
A: I’m only concerned about me. I wouldn’t know.
(Freeman Dep. 38:23-39:10.).
Plaintiff testified further as follows:
Q: Anything else about Mr. Battle that we haven’t discussed in connection
with his involvement with your termination, or why you believe he discriminated
against you because of your race?
A: What are you asking?
Q: Anything else we haven’t talked about?
A: As far as?
Q: As far as why you believe he discriminated against you because of your race?
A: Like I said, I’m not going to let these people break my will, and I refuse to be
(Freeman Dep. 54:17-55:2.)
Daniel Traficanti, the Labor Relations Specialist who reviewed Plaintiff’s accident,
discipline and Union grievance records, and who settled Plaintiff’s grievance prior to the
scheduled arbitration, states as follows:
At no time during my involvement with Mr. Freeman’s case did I come to believe
or suspect that the circumstances or decisions surrounding Mr. Freeman’s
removal were motivated in any way by race discrimination, either on the part of
the Supervisor(s), the Transportation Manager, or the Union.
(Traficanti Decl. ¶¶ 6-8, 13.)
William Jones, Vice President and Business Manager for the Union, explained further
with regard to Plaintiff’s claims of race and color discrimination:
Q: Do you have any reason – as you sit here today, do you have any reason to
believe that Mr. Freeman – that Mr. Freeman's removal was recommended on the
basis of his race or his color?
Q: As you sit is here today, do you have any reason to believe that Glen Ramsey
would have taken any action against Mr. Freeman, on account of his race or his
Q: Same question with respect to Dorothy Bradshaw?
Q: Same question with respect to Tom Dziubinski?
Q: Same question as it relates to Anthony Battle?
(Jones Dep. 53:5-19).
William Weisser, a Union Steward, testified further as follows:
Q: Have you ever witnessed any instances where black employees were provided
favorable treatment over white employees?
A: No, I don’t believe so.
Q: Have you ever witnessed any instances where white employees were given
favorable treatment over black employees?
A: No, I don’t believe that’s true either.
Q: Have you ever witnessed any instances where there were light-skinned
African-Americans who received more favorable treatment than darker-skinned
(Weisser Dep. 10:18-20, 11:2-5, 8-12, 15.)
Plaintiff identified Antoine Gibson as a witness. (Freeman Dep. 144:23-25, 145:19-25,
146:1-5; Ex. Z at 3.) Antoine Gibson, who is African American, testified as follows:
Q: Do you recall any instances where any employees were involved in at-fault
accidents where they were not disciplined?
A: At-fault accidents?
A: Not to my recollection, no. At-fault accident, typically they do whatever
investigation there is, there is a protocol of discipline that they are supposed to
follow and they typically do it, as far as I know.
(Gibson Dep. 22:7-18, 38:9-1321; see also Washington Dep. 23:10-13, 24:2-6.22)
He testified further as follows:
Q: Did you ever see him [Anthony Battle] treat African American employees
more harshly than their white colleagues?
A: Not more harshly, no.
Q: Did you ever see him treat the white employees different than the African
Q: Okay. One of the witnesses describe Mr. Battle as a bully. What’s your take on
A: I’ve heard it plenty of times, yup.
(Gibson Dep. 25:23-25, 26:1-7.)
Plaintiff identified Wesley Johnson as a witness. (Freeman Dep. 144:23-25, 145:19-25,
ECF No. 42 Ex. W.
ECF No. 42 Ex. V.
146:6-10; Ex. Z at 3.) Wesley Johnson is a former PSE and now full-time Postal Service driver
who grew up with Plaintiff in the City of Pittsburgh and has known him since childhood.
(Johnson Dep. 6:24-25, 7:1, 12-25, 8:1-5.)23
Johnson, who is African American, testified as follows:
Q: Are you aware of management treating any white employees more favorable
than African American employees?
Q: Okay. Are you aware of management treating any light skinned employees –
light skinned African American employees more favorable than dark skinned
African American employees?
(Johnson Dep. 13:14-16, 18:3-5, 7, 9-12, 14.) He testified further as follows:
Q: Did Mr. Freeman ever complain to you about management?
Q: Do you recall what he complained to you about?
A: Multiple, multiple problems.
Q: And have you ever had any interactions with Mr. Battle?
Q: And how have you found those interactions to be with Mr. Battle?
A: They varied.
Q: Could you describe what you mean by varied interactions with Mr. Battle?
A: Some positive, some negative.
Q: Let’s start with the positives. Can you recall any specific positive interactions
A: Yes, yesterday.
Q: And what was your interaction like?
A: Positive. Real good.
Q: Was he courteous to you?
Q: Did he respect you?
Q: Did he speak with you in a pleasant tone?
Q: Any other specific positive interactions you’ve had with Mr. Battle?
ECF No. 42 Ex. Y.
Q: Do you want to describe those?
A: Yeah, when he promoted me to a 204B supervisor.
(Johnson Dep. 19:1-5, 14-25, 20:1-13.) He further testified regarding a negative interaction he
had with Anthony Battle when Battle was not able to contact Johnson, as follows:
Q: Okay. And what was the result of that? Did he – let me ask you something.
During that interaction with him, did you find him to be courteous?
Q: Did you find him to be respectful of you?
Q: And did he use a pleasant tone with you?
(Johnson Dep. 29:7-19, 23-25, 30:1-6.) He testified further as follows:
Q: Did he [Anthony Battle] make any statements to you with regard to your
not being a 204B supervisor anymore?
Q: What did he say?
A: I wish you would stay in office.
Q: What did you understand him [Anthony Battle] to mean by that statement?
A: Well, he wished that I wouldn’t want to go back to driving. He wanted me to
stay as a supervisor, because he felt I was a good supervisor.
(Johnson Dep. 30:20-24; 41:13-18.)
He testified further as follows:
Q: While you were employed as a PSE MVS, did you ever witness any instances
where white employees were provided more favorable treatment than African
(Johnson Dep. 32:12-15, 18.)
Plaintiff identified Alvin Washington as a witness. (Freeman Dep. 144:23-25, 145:19-25,
146:1-5; Ex. Z at 3.) Washington, an African American former PSE and now full time Postal
Service driver, testified as follows regarding Glenn Ramsey:
Q: Do you know of any instances where Mr. Ramsey didn’t treat people fairly?
A: I can’t say. I can’t recall him just, I mean, with us, he worked, I feel like he
worked us all -- all of us PSE’s, he always tried to give us hours. He always used
to try to give us over 40 hours a week. So, whether we got it in the night or the
day, he never did anything, you know, to me.
(Washington Dep. 6:13-17, 25, 7:1-3, 17:9-10, 13-19, 31:19-22.) He testified further as follows
regarding Anthony Battle:
Q: Did you know of any instances where he, Mr. Battle, gave more favorable
treatment to white employees than African American employees?
A: No, he -- he do it all the same. He don’t – he ain’t -- he ain’t our favorite
person in driving, hardly no drivers, so that’s white and black, so –
Q: He goes after all of you?
A: Mm-hmm, the same.
(Washington Dep. 20:19-21, 24-25, 21:1-4.) Plaintiff notes that Washington also testified as
Q. And I think I’m not sure if I heard you clearly earlier, but did you testify
that you believe Mr. Battle would make up a reason to terminate somebody?
A. No, I don’t think he would make up a reason, but, you know, he’ll try to use
anything to try to get you, the steps to get you out of here. He tried, you know, he
has initiated, like I said, against me personally. That’s why I know personally,
you know, he tried to go to the extreme, like with a PDI. And then back in April
my, -- I missed a --two days, off two days for being sick and that’s when he came
back and tried to give me a seven-day suspension. And we grieved that. So, that
actually is nothing now, because my PDI for the level 1 got thrown out, so that
seven day automatically disappeared. So, that’s just grievances out there. I don’t
know what it --that actually knocked the other one out. So, he has, you know, he
has tried to go to the point where he build up stuff on me, you know, to keep, you
know, just to make like a trap for me. I fell in a trap. So, he is known Q. So, he comes down hard on people when something happens?
A. To the extreme, to the extreme. So, that’s how I feel. He has got some
grievances for being an abusive supervisors [sic]. And the way he talk to you ain’t
right. Like I said, he don’t people to people like you should be talking to
somebody as, like we all – here we are all grown men. He tried to come at me like
did you hear me? Did you hear me?
If a supervisor tell you to do something – I remember one instance, and I just
walked off. He was on the phone trying to tell me, I’m a grown man, I got kids,
I’m going to holler at my kids. If a supervisor tell you to come here, you come
here, you hear me? I walked off. First of all, you ain’t supposed to talk to me, I’m
already off the clock. I’m not your kid. So, I walked off. So, I already know the
grievance that he got for being abusive supervisor, he got a couple of weeks ago
with a driver, they going back and forth, over the radio.
Q. What did you hear about the grievance that was filed against him for
being an abusive supervisor, what do you know about that?
A.I don’t know what happened with it, but I know there’s more than one
(Washington Dep. 33:4-25, 34:1-25, 35:1-3.)24
Q. But do you know of any instances where, while you were a PSE, white
employees might have received more favorable treatment than you or your
colleagues that were African Americans?
A. I can’t, you know – I know, as far as treatment, you know, I always
been treated, you know, l feel the same here as a –but I know, as far as accidents
go, Richard Hipkiss, he, see, I don’t really look at it in our department, you know,
its black and white and female and male, so I look at it, we call each other drivers.
So, I know Richard Hipkiss he had an accident or two when we were PSE’s. And
he was terminated and then he was brought back.
And Donnie Smith, he retired. He had an accident – he might have hit something,
but he was an older driver. He isn’t white. He’s like light skinned, because I know
his family out of Aliquippa, they are just light skinned people.
(Washington Dep. 11:7-25, 12:1-2.)
Q. Do you know of any white drivers who were terminated who were then
A. Like I said, in the beginning, Mr. Hipkiss, he was, when he was a PSE, he had
multiple accidents, and he returned. Steve McCloskey, he had accidents, he was
let go for like, I believe, like five or six months, but he was allowed to – he came
back. He is still working here.
Q. Do you think those two instances were unfair to Mr. Freeman, that they let
these two guys come back –
Q.– that they let these two guys come back, but they didn’t let Mr. Freeman come
A. Well, yeah, I figure everything should be equal. If the union can fight for – if
they union can fight tooth and nail and we all pay union dues, yeah, they should
make a little more effort.
(Washington Dep. 22:2-25, 23:1.)
ECF No. 48 Ex. 4.
Plaintiff’s Hybrid Claim
Plaintiff testified as follows regarding his allegation that the Postal Service breached the
Q: Concerning you, what did the postal service do that breached the contract?
A: They fabricated an incident that happened.
Q: Sir, are you contending that your termination was a breach?
Q: Anything else?
A: And the fact that I was discriminated against.
(Freeman Dep. 130:16-24.) Plaintiff testified further as follows:
Q: What procedures do you think the postal service should have followed that
they didn’t after incident No. 3?
A: Who did the investigation of that incident? Was there an investigation done on
that incident? Was there an investigation done on any of my incidents?
Q: What else?
A: Like I said, I wasn’t informed on if there was an investigation done. And I
really can’t elaborate on that because I’m not in a position to do that.
Q: What do you think the postal service should have done rather than recommend
your termination and terminate you?
A: Like I said before, did they really investigate it?
Q: Do you think there should have been a different outcome?
A: I can’t say that because who did the investigation?
(Freeman Dep. 131:13-19, 132:3-15.) Plaintiff testified as follows regarding his allegation that
the Union breached its duty of fair representation:
Q: What are you alleging that the union did that breached their duty of fair
A: They did not represent me.
Q: And how do you mean? Can you be more specific?
A: I was not allowed to be at any of the proceedings that happened and the fact of
the matter that they told me that they are not going to represent me because they
feel they cannot win my case.
Q: Anything else that the union did or did not do that you feel was in breach of
their duty of fair representation?
A: I feel they discriminated against me.
Q: What evidence do you have of that?
A: Look at what they did for Richard Hipkiss.
Q: That’s the evidence you believe shows they discriminated against you because
of your race?
A: Why wouldn’t they do it for me?
Q: I know you're not asking me to answer that question. But that’s the question,
why not you?
A: Yes. If they are going to be fair and impartial, why wasn’t it fair and impartial
Q: What other evidence do you have that the union would want to discriminate
against you because of your race?
A: What other evidence? Do I need more?
Q: I’m asking you if you have any more?
(Freeman Dep. 132:16-24, 133:4-7, 134:15-25, 135:1-4.)
In a sworn statement submitted to the National Labor Relations Board (NLRB), Plaintiff
I have no affirmative declaratory evidence to provide, such as threats not to
represent me or statements concerning my race, that the Union representatives
bore any animosity because of my race. I have information through another
employee that the Union arbitrated grievances on behalf of white employees who
had engaged in unsatisfactory performance and/or had failed to perform their
duties in a safe manner, and their conduct had been equal or worse than the
conduct for which the Employer had terminated my employment.
(ECF No. 42 Ex. BB ¶ 6.)
Plaintiff testified at this deposition that he stands by statement he made to the NLRB.
(Freeman Dep. 128:3-19.) When asked whether there was anything else that made him believe
that the Union either discriminated against him because of his race or breached its duty of fair
representation, Plaintiff responded that, “[w]e talked about everything.” (Freeman Dep. 137:311.)
Plaintiff points to three individuals as comparators, that is, similarly situated white
employees of the Postal Service who allegedly received more favorable treatment than he did.
The Postal Service denies that these individuals are similarly situated.
Richard Hipkiss is a Caucasian MVO presently employed by the Postal Service.
(Dziubinski Dep. 63:12-1825; Battle Dep. 82:16-1726; Hipkiss Dep. 12:14-15.27) Hipkiss was
hired on or about June 16, 2012 as a PSE MVO. (ECF No. 48 Ex. 22 at USPS 26 (box 27).)
Hipkiss was a PSE when both of his at-fault accidents occurred. He was later promoted to a
Regular, Full-Time employee. (Washington Dep. 10:17-1928; ECF No. 48 Ex. 22 at USPS 3, 9,
26.) Battle described Hipkiss as an employee who had been involved in “several” accidents
throughout the course of his employment. (Battle Dep. 82:12-15, 89:12-15; ECF No. 48 Ex. 22 at
USPS 1; Hosack Dep. 44:24-25, 45:1-329.) To date Hipkiss has retained his position of MVO
with the Postal Service. (Washington Dep. 22:3-11.)
Hipkiss’ first accident occurred on March 4, 2013. On this date, Hipkiss was operating a
spotter and pulling a trailer out from between two other trailers. (Hipkiss Dep. 10:2-4; ECF No.
48 Ex. 22 at USPS 40.) Hipkiss struck a parked POV while pulling the trailer out of a dimly-lit
lot at the General Mail Facility. (Ex 22 at USPS 33, 40.) According to Hipkiss, the vehicle was
not parked there when he arrived, and he did not see the vehicle before he left. (Hipkiss Dep.
10:2-11; ECF No. 48 Ex. 22 at USPS 41, 49.) The accident caused significant damage to the
POV. (Id. at USPS 3.)
The accident was investigated by Ramsey, Dziubinski, and Battle, and Hipkiss was
ECF No. 48 Ex. 6.
ECF No. 48 Ex. 20.
ECF No. 42 Ex. X.
ECF No. 48 Ex. 4.
ECF No. 48 Ex. 23.
charged with an at-fault accident. (Battle Dep. 85:3-9, 86:2-330; ECF No. 48 Ex. 22 at USPS 38,
50.) A Union Representative spoke to the Dock Supervisor for additional details, and was
informed that the driver of the POV had been warned against parking in that location. (Id. at
USPS 41.) The USPS accident report indicates that the owner of the vehicle played an “active
role” in the stated accident by parking improperly. (Id. at USPS 43.)
Hipkiss was originally served a Notice of Removal on March 13, 2013. (Battle Dep.
86:15-17; ECF No. 48 Ex. 22 at USPS 30, 33.) A grievance was filed and his removal was
reduced to a suspension at Step 3 of the grievance process. (Hipkiss Dep. 12:3-10.)31 Hipkiss
served a seven-day suspension for the March 4 incident and returned to work on March 17, 2013.
(Hipkiss Dep. 11:12-1432; ECF No. 48 Ex. 22 at USPS 36.) He also received 40 hours of paid
leave. (Id. at USPS 32.) Defendant adds that the record reveals that Hipkiss was brought back
because of an alleged unfair labor practice on the part of an unnamed manager, a circumstance
not present in this case. (ECF No. 42 Ex. U at WJ 88.)
According to Jones, the Postal Service “gave in” during the grievance process because
the manager at the time – who may have been Battle –had attempted to negotiate directly with
Hipkiss, separately from the Union. (Jones Dep. 57:17-20, 58:1-6, 17-20.)33 Battle denied ever
having been charged with such a transgression. (Battle Dep. 110:14-21.)34
Hipkiss’ second accident occurred on August 26, 2013 on the West End Bridge. This
accident occurred when Hipkiss side-swiped a POV driving on his left, causing significant
damage. (ECF No. 48 Ex. 22 at USPS 5, 17.) The postal vehicle caused significant damage to the
ECF No. 48 Ex. 20.
ECF No. 42 Ex. X.
ECF No. 48 Ex. 21.
ECF No. 58, Supp. Ex. 12.
ECF No. 48 Ex. 20.
POV, damaging the side mirror and removing the protective cover surrounding the mirror. (Id. at
USPS 25, 239-42.)
As Hipkiss explained, a construction sign on the right side of the road caused him to “hug
the line” on the left. As a result, the rear tire of the postal truck crossed into the opposite lane
and sideswiped the rear tire of a POV. (Hipkiss Dep. 6:19-21; ECF No. 48 Ex. 22 at USPS 2, 5.)
The accident was investigated by Dziubinski and Ramsey. (Id. at USPS 15, 28, 40.)
Hipkiss’ Union Representative at the PDI defended, claiming that the accident happened
behind Hipkiss, and that Hipkiss could not have avoided it. (Id. at USPS 16.) In the PDI,
Dziubinski described the accident as the “tire and mirror touching.” (Id. at USPS 11, 22.)
The accident report further claimed that the driver of the POV played an “active role” in
the incident by failing to check her clearance. (Id. at USPS 27.) However, Hipkiss admitted that
he was aware that his postal vehicle had crossed outside of his traffic lane and into the lane of the
POV. (Hipkiss Dep. 7:5-11.)35
As a result of this accident, Hipkiss was assigned to the clerk’s office for a period of
thirty days. (Hipkiss Dep. 7:15-17) He was issued a Notice of Removal on August 30, 2013 and
removed from employment with the Postal Service. (Battle Dep. 87:17-22; ECF No. 48 Ex. 22 at
USPS 5.) On December 30, 2013, Hipkiss’ removal was officially reduced to an LOW, and
Hipkiss was instructed to return to work by January 4, 2014. (Id. at USPS 2-3.) Battle was
uncertain at what Step of the grievance process this occurred. (Battle Dep. 89:3-4.)
John McCartney is a Caucasian male who has been employed as a Postal Service MVO
ECF No. 48 Ex. 21.
since December 10, 2011. (Johnson Dep. 13:17-23; Battle Dep. 103:20-2136; ECF No. 48 Ex. 26
at USPS 407.) McCartney has been involved in three motor vehicle accidents throughout his
tenure as an MVO, all occurring while he was employed as a PSE MVO. (Battle Dep. 96:22-24;
ECF No. 48 Ex. 26 at USPS 350 (box 17), USPS 385 (box 17), 404, 407, 421.)
McCartney’s first accident occurred on November 23, 2012. (Id. at USPS 411, 421.) The
incident occurred when McCartney was driving through a construction zone and his driver’s side
mirror struck a construction sign on the side of the road. (Id. at USPS 414-15, 423.) The
accident was investigated by Ramsey, Dziubinski, and Battle, who ultimately determined that
McCartney was at fault for the accident. (Battle Dep. 97:7-12; ECF No. 48 Ex. 26 at USPS 405,
421.) As a result, he received a discussion in lieu of formal discipline, as well as additional
training. (Battle Dep. 98:16-25; ECF No. 48 Ex. 26 at USPS 419-21.)
McCartney’s second accident occurred on February 9, 2013. (Id. at USPS 340-42, 350.)
He was rear-ended by a POV while stopped at a red light. (Id. at USPS 368-70.) No damage was
done to the Postal vehicle; however, the POV was totaled. (Id. at USPS 365.) A police report was
filed and McCartney was determined to be not at fault for the accident. (Battle Dep. 99:9-15;
ECF No. 48 Ex. 26 at USPS 358-59.)
McCartney’s third accident occurred on October 3, 2013, when he opened his driver side
door to exit the vehicle and struck an oncoming POV. (Id. at USPS 344-46.) The impact broke
the passenger side mirror and damaged the rear window of the POV as well as the driver’s side
door frame of the postal truck. (Id. at USPS 384-85.)
Battle testified that McCartney was determined to be not at fault for this accident, despite
carelessly having opened his door into oncoming traffic:
ECF No. 48 Ex. 20.
Q. And does it [the accident report] give any other indication on what happened?
A. Yes, in this accident, as explained in Item 38, he was opening his door and he
was struck by a POV as he was opening the door and her mirror was damaged.
Q. And was he ascribed fault for that incident?
Q. He was not?
A. No. Not to recollection he wasn’t.
Q. Okay. Does that form give any indication of whether or not Mr. McCartney
received any training or anything of that nature?
A. No, it doesn’t indicate any retraining, no.
Q. Is there any indication ascribing fault to Mr. McCartney in that[October 3,
(Battle Dep. 100:7-20, 101:6-8.)
Despite his testimony that McCartney was not a fault for the October 3, 2013 accident,
Battle also indicated that McCartney’s “inattention” was a contributing factor to the accident.
(ECF No. 48 Ex. 26 at USPS 386.) He testified:
Q. Had he been paying attention and checked his mirror, would not he have
observed the vehicle passing close to his vehicle?
A. Well, in this accident right here, even though I marked it as inattention on his
behalf, that street is wide enough where that POV had enough room to clear his
vehicle without striking it. The lady was too far over, But to clarify, he was told to
start getting out on the passenger side, not to exit from the driver’s side.
(Battle Dep. 102:4-13.)
Charles McCloskey is a Caucasian male employed as a Full-Time MVO with the Postal
Service. (Dziubinski Dep. 79:21-2537; ECF No. 48 Ex. 29 at USPS 99.) McCloskey has been
involved in three known motor vehicle accidents during his employment with the Postal Service.
To date McCloskey remains employed with the Postal Service as an MVO. (Battle Dep. 89:16-
ECF No. 48 Ex. 6.
2338; Hosack Dep. 44:18-21; ECF No. 48 Ex. 29 at USPS 100, 119.)
In addition to his motor vehicle accident history, McCloskey also served a seven-day
suspension on approximately November 2, 2010 for exhibiting “Unsafe Work Habits.” (ECF No.
48 Ex. 29 at USPS 121.) An advisory letter dated November 11, 2011 indicates that McCloskey
was involved in his first motor vehicle accident on October 21, 2011. No information was
provided with regard to the details or disciplinary outcome of this accident. However, as of 2013,
this accident no longer appeared on McCloskey’s employment record. (Id. at USPS 119, 122.)
McCloskey’s second accident occurred two weeks later, on November 2, 2011, when he
struck a POV which was traveling straight as he attempted to make a left-hand turn into the
Parkway Center postal facility. A Notice of Proposed Removal was issued on November 10,
2011, and was reduced to an LOW on April 23, 2013. (Id. at USPS 120-22.)
McCloskey’s third known accident occurred on September 17, 2014,when his postal
vehicle drifted forward into a POV while he was stopped at a red light. (Id. at USPS 100, 10911.) McCloskey stated that his postal vehicle “drifted” into the POV, and that there was
“nothing” he could have done to avoid the accident. (Id. at USPS 107, 113.)
Dziubinski investigated the accident (Id. at USPS 102-03, 105-07.) McCloskey was
determined to be at fault for the accident and was subsequently issued an LOW on September 26,
2014. (Battle Dep. 92:18-23; ECF No. 48 Ex. 29 at USPS 100.) According to Battle, McCloskey
was issued the LOW for his third motor vehicle accident because his previous disciplinary
actions were “downgraded by labor,” and the Postal Service was required to “start over in the
process” of discipline. (Battle Dep. 95:10-14.) Battle further stated that McCloskey was “a fulltime employee.” (Id. at 95:14-15.) However, on November 11, 2011, Edward Hosack,
ECF No. 48 Ex. 20.
Supervisor, Transportation Operations, received a “Confidential Advisory” that a removal (for
McCloskey’s second accident) would not prevail but that “the final decision on this matter is
yours.” (ECF No. 48 Ex. 29 at USPS 119.)39
On March 23, 2015, with the assistance of his attorney, Plaintiff contacted an EEO
counselor and prepared an “Information for Pre-Complaint Counseling.” (ECF No. 48 Ex. 13 at
AF 211-12.) On May 5, 2015, Plaintiff filed a charge of discrimination with the Pennsylvania
Human Relations Commission (“PHRC”), which was dual filed with the Equal Employment
Opportunity Commission (“EEOC”). (Id. at AF 233-34.) By letter dated June 19, 2015, Plaintiff
was notified of his right to file a formal EEO complaint, which he did. (Id. at AF 244-45.) On
July 6, 2015, within fifteen (15) days of receipt of the notice, Plaintiff timely filed a counseled
formal EEO complaint. (Id. at AF 254-58.) On August 5, 2015, the formal EEO complaint was
dismissed. (Id. at AF 260-62.)
Plaintiff was advised that the proper forum for a complainant to have raised a challenge
to decisions made by the Union was through the grievance process itself or before the NLRB.
(Id. at AF 261.) On August 11, 2015, Plaintiff filed a Complaint with the NLRB and notified
both the Union and the Postal Service. (ECF No. 48 Ex. 14 at AF 268.) On August 13, 2015, he
filed a revised Complaint with the NLRB. (Id. at AF 276-77.) The August 5, 2015 Notice of
Dismissal also advised Plaintiff that he had a right to file a civil action in federal court in lieu of
Plaintiff’s Concise Statement also cites the experiences of Edward Williams (an African
American MVO who was involved in three accidents but received only a seven-day suspension),
Roseann Lee (a woman whose race is not identified and who was involved in four accidents and
was issue a Notice of Removal but reinstated through the grievance process), and Donald Smith
(an African American MVO who was involved in two accidents but whose LOW was expunged
upon his retirement). ECF No. 47 ¶¶ 147-54, 167-75, 185-206. Plaintiff does not refer to these
individuals in his brief or explain the relevance of their experiences to this case.
filing an appeal with the EEOC. (ECF No. 48 Ex. 13 at AF 262.)
Plaintiff filed this action on August 24, 2015, naming both the Postal Service and the
Union as defendants (ECF No. 1). On October 26, 2015, the Postal Service filed a Motion to
Dismiss. (ECF No. 4.) On November 11, 2015, Plaintiff voluntarily dismissed the Union from
this case (ECF No. 9) and filed an Amended Complaint against the Postal Service, now the only
defendant. (ECF No. 10.) Federal question jurisdiction is based on the civil rights claim. Count
I alleged that the Postal Service treated him in a discriminatory manner in violation of Title VII
when it terminated his employment for the May 13, 2014 motor vehicle accident, because
similarly situated white employees were re-employed and/or re-hired at the same or similar pay
position. He also alleged that the Postal Service falsely treated his two prior accidents as at-fault
incidents in order to justify his termination; that the withdrawal of his grievance by the Postal
Service and the Union was discriminatory as it deprived him of the right to have his grievance
resolved; and that he was not advised of his Veterans’ Preference rights. Count II alleges that the
Postal Service breached the CBA by imposing discipline that was punitive in nature rather than
corrective and that his removal was not for “just cause.”
On December 4, 2015, the Postal Service filed a Motion to Dismiss the Amended
Complaint. (ECF No. 15.) On February 25, 2016, a Memorandum Opinion and Order was filed,
granting the motion in part (dismissing Plaintiff’s claim arising under the Veterans’ Preference
Act) and denying it in all other respects (ECF No. 24).
On November 4, 2016, Defendant filed a motion for summary judgment (ECF No. 40).
On January 16, 2017, Plaintiff filed a brief in opposition (ECF No. 50) and on February 20,
2016, Defendant filed a reply brief (ECF No. 54). On March 1, 2017, Plaintiff filed a motion for
leave to file a supplement to his additional facts (ECF No. 58), and the motion was granted on
March 2, 2017 (ECF No. 59).
Standard of Review
As amended effective December 1, 2010, the Federal Rules of Civil Procedure provide
that: “The court shall grant summary judgment if the movant shows 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). Summary judgment may be granted against a party who fails to adduce facts
sufficient to establish the existence of any element essential to that party’s case, and for which
that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The moving party bears the initial burden of identifying evidence which demonstrates
the absence of a genuine issue of material fact. Once that burden has been met, the non-moving
party must set forth “specific facts showing that there is a genuine issue for trial” or the factual
record will be taken as presented by the moving party and judgment will be entered as a matter
of law. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). An
issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In following this directive, a court must take the facts in the light most favorable to the
non-moving party, and must draw all reasonable inferences and resolve all doubts in that party’s
favor. Hugh v. Butler County Family YMCA, 418 F.3d 265, 266 (3d Cir. 2005); Doe v. County
of Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001).
Defendant argues that: 1) Count I should be dismissed because Plaintiff points to no
circumstances giving rise to an inference of race discrimination and even if he could state a
prima facie case, he has no evidence of pretext that the proffered reason for his termination
(having three motor vehicle accidents over a period of 18 months) is a pretext for unlawful race
discrimination; and 2) Count II should be dismissed because he points to no evidence that the
Postal Service breached the CBA or that the Union breached its duty of fair representation.
Plaintiff responds that: 1) he did not have three “at fault” accidents, but rather the Postal
Service exaggerated and misrepresented the incidents in order to justify his dismissal, and he was
treated less favorably than similarly situated white employees, and Defendant’s proffered reason
for his dismissal is a pretext for unlawful race discrimination; and 2) the Postal Service breached
the CBA by claiming that the accidents were Plaintiff’s fault when it knew this was false and by
citing the first accident despite the fact that no discipline was imposed, and the Union breached
its duty to defend him when it withdrew his appeal, unlike the more favorable treatment given to
similarly situated white employees with grievances.
In a reply brief, Defendant contends that: 1) the three individuals to whom Plaintiff
compares himself are not valid comparators and he cannot demonstrate pretext by merely
disagreeing with the Postal Service’s conclusion that the accidents were his fault; and 2) contrary
to Plaintiff’s contention, the Postal Service did not breach the CBA by noting the first accident in
the context of firing him and the Union was not required to continue to arbitrate his grievance
once it concluded that it had no chance of succeeding.
Count I: Title VII
Title VII provides that “All personnel actions affecting employees or applicants for
employment … in the United States Postal Service and the Postal Regulatory Commission …
shall be made free from any discrimination based on race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-16(a). The statute further provides that an aggrieved party may file a
civil action as provided in section 2000e-5, § 2000e-16(c), and that the provisions of section
2000e-5(f) through (k) shall govern these civil actions brought by federal employees, § 2000e-
Defendant argues that Plaintiff has failed to state a prima facie case of discrimination,
citing to the familiar McDonnell Douglas burden shifting analysis. McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). As the Court of Appeals has explained, a Title VII plaintiff :
bears the initial burden of establishing a prima facie case by a preponderance of
the evidence. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742,
125 L.Ed.2d 407 (1993). When a plaintiff establishes a prima facie case of
discrimination, the burden shifts to the employer to “articulate some legitimate,
nondiscriminatory reason for the employee’s rejection.” McDonnell Douglas, 411
U.S. at 802, 93 S.Ct. 1817. If the defendant meets this burden, the presumption of
discriminatory action raised by the prima facie case is rebutted. Tex. Dep’t. of
Cmty. Affairs v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 67 L.Ed.2d 207
(1981). The plaintiff then must establish by a preponderance of the evidence that
the employer’s proffered reasons were merely a pretext for discrimination, and
not the real motivation for the unfavorable job action. Id. at 253, 101 S.Ct. 1089;
McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817.
The existence of a prima facie case of employment discrimination is a
question of law that must be decided by the Court. It requires a showing that: (1)
the plaintiff belongs to a protected class; (2) he/she was qualified for the position;
(3) he/she was subject to an adverse employment action despite being qualified;
and (4) under circumstances that raise an inference of discriminatory action, the
employer continued to seek out individuals with qualifications similar to the
plaintiff’s to fill the position. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817;
Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 348 n. 1, 352, 356 (3d Cir. 1999).
However, the prima facie test remains flexible and must be tailored to fit the
specific context in which it is applied. Geraci v. Moody-Tottrup, Int’l, Inc., 82
F.3d 578, 581 (3d Cir. 1996).
Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797-98 (3d Cir. 2003) (footnotes omitted).
Defendant contends that Plaintiff cannot establish a prima facie case of race
discrimination because he points to no circumstances giving rise to an inference of
discrimination—he cannot compare himself to Hipkiss, who actually was treated more severely
(he was terminated after two accidents before his grievances succeeded in getting him
reinstated), and he has no other evidence to support his claim, including his claim that various
Postal Service supervisors conspired against him because he objected to being called “black.”
Plaintiff responds that he can compare himself to Hipkiss and also to McCartney and
McCloskey. Defendant replies that these are not valid comparators because they are not
The Court of Appeals has held that plaintiffs in discrimination cases “cannot selectively
choose a comparator.” Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 645 (3d
Cir. 1998). An individual must be similarly situated in all material respects. Lula v. Network
Appliance, Inc., 2006 WL 1371132, at *5 (W.D. Pa. May 17, 2006 (Cercone, J.), aff’d, 245 F.
App’x 149 (3d Cir. 2007). “In order for [individuals] to be deemed similarly situated, the
individuals with whom a plaintiff seeks to be compared must have engaged in the same conduct
without such differentiating or mitigating circumstances that would distinguish their conduct or
the [defendant’s] treatment of them for it.” Jones v. Hosp. of Univ. of Pa., 2004 WL 1773725, at
*6 (E.D. Pa. Aug. 5, 2004) (citation omitted).
Defendant argues that Plaintiff cannot maintain a prima facie case of racial discrimination
because he cannot point to another similarly situated individual, that is a white PSE who was
involved in three at-fault accidents but was not fired, and thus received more favorable treatment
than he did. However, as the Court of Appeals has clarified, although some previous cases had
created confusion by referring to favorable treatment outside the protected group as a prima facie
case element, “[u]nder McDonnell Douglas, evidence of favorable treatment outside the
protected class is not an element of a prima facie case.” Matczak v. Frankford Candy and
Chocolate Co., 136 F.3d 933, 939 (3d Cir. 1997) (citing McDonnell Douglas, 411 U.S. at 802).
See also Simpson, 142 F.3d at 646 (evidence that a non-member of the protected class was
treated more favorably is enough for purposes of the prima facie case and the issue of whether
the individual is “similarly situated” is more appropriately addressed at the pretext stage of the
analysis). Thus, Plaintiff need not point to a white PSE with three accidents who not fired in
order to state a prima facie case of racial discrimination. Moreover, he refers to three white
Postal Service workers who were cited for multiple auto accidents, which is more than sufficient
for purposes of a prima facie case.
Thus, Plaintiff has established a prima facie case of race discrimination. The burden
shifts to Defendant to point to a legitimate, non-discriminatory reason for terminating Plaintiff’s
employment. Defendant has met its burden by pointing to Plaintiff’s history of motor vehicle
accidents. See Raytheon Co. v. Hernandez, 540 U.S. 44, 51-52 (2003). Plaintiff contends that
the accidents the Postal Service cites were “magnified and fabricated” to justify his termination.
To discredit the employer’s proffered reason, however, the plaintiff cannot simply
show that the employer’s decision was wrong or mistaken, since the factual
dispute at issue is whether discriminatory animus motivated the employer, not
whether the employer is wise, shrewd, prudent, or competent. Rather, the nonmoving plaintiff must demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could rationally find
them “unworthy of credence,” and hence infer “that the employer did not act for
[the asserted] non-discriminatory reasons.”
Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (citations omitted). Or put another
[W]e do not sit as a super-personnel department that reexamines an entity’s
business decisions. No matter how medieval a firm’s practices, no matter how
high-handed its decisional process, no matter how mistaken the firm’s managers,
the ADEA does not interfere. Rather, our inquiry is limited to whether the
employer gave an honest explanation of its behavior.
Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 332 (3d Cir. 1995).
Thus, Plaintiff cannot demonstrate pretext by claiming that the Postal Service’s
conclusion that the second accident was his fault was wrong because the other driver turned in
front of him.40 As noted above, “it is not enough for a plaintiff to show that an employer’s
decision was wrong or mistaken, because the issue is whether the employer acted with
discriminatory animus.” Abramson v. William Paterson College, 260 F.3d 265, 283 (3d Cir.
On the other hand, Plaintiff argues that he has evidence of pretext in the form of three
similarly situated white Postal Service employees who received more favorable treatment.
Defendant contends that the three employees are not similarly situated.
The Court of Appeals has stated that:
to be considered similarly situated, comparator employees must be similarly
situated in all relevant respects. Russell v. University of Toledo, 537 F.3d 596
(6th Cir. 2008); Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259-61 (5th Cir.
2009)). A determination of whether employees are similarly situated takes into
account factors such as the employees’ job responsibilities, the supervisors and
decision-makers, and the nature of the misconduct engaged in. Lee, 574 F.3d at
259–261; Burks v. Wis. Dep’t of Transp., 464 F.3d 744 (7th Cir. 2006).
Wilcher v. Postmaster General, 441 F. App’x 879, 882 (3d Cir. 2011). However, to the extent
that Defendant argues that the conduct must be “the same,” the Court notes the following
comment made by Judge Conti:
Other courts have demanded that comparators’ conduct be “the same.”
E.g., Hodczak v. Latrobe Specialty Steel Co., 761 F. Supp. 2d 261, 269 (W.D. Pa.
2010) (“‘[Comparators] ... must have dealt with the same supervisor, have been
subject to the same standards and have engaged in the same conduct without such
differentiating or mitigating circumstances that would distinguish their conduct or
the employer’s treatment of them for it.’” (quoting Ogden v. Keystone Residence,
226 F. Supp. 2d 588, 603 (M.D. Pa. 2002)) (emphasis added)). The court
concludes that “similar conduct” is the more appropriate formulation, and the one
relied upon more often and more recently by Court of Appeals for the Third
In his brief, Plaintiff also makes a passing reference to the Postal Service’s “failure to question
[his] colleague Mr. Coleman, who [Plaintiff] advised Postal Service that he had witnessed the
incident.” (ECF No. 50 at 17.) However, his citation does not support this argument: he refers
to the PDI, at which Ramsey asked him if he (Plaintiff) had any questions and Plaintiff asked if
he talked to Edward Coleman and Ramsey responded “I have not had a chance yet.” (ECF No.
42 Ex. Q at BATTLE 79-80.)
Circuit—albeit in unpublished opinions. See Radue v. Kimberly–Clark Corp., 219
F.3d 612, 617-18 (7th Cir. 2000), quoted favorably by Brown v. SEPTA, 539 Fed.
Appx. 25, 28-29 (3d Cir. 2013) (per curiam); Amfosakyi v. Frito Lay, Inc., 496
Fed. Appx. 218, 224 (3d Cir. 2012) (per curiam); McCullers v. Napolitano, 427
Fed. Appx. 190, 195 (3d Cir. 2011) (per curiam); Houston v. Easton Area Sch.
Dist., 355 Fed. Appx. 651, 654 (3d Cir. 2009); Opsatnik v. Norfolk S. Corp., 335
Fed. Appx. 220, 223 (3d Cir.2009). But see Davis v. City of Phila. Water Dep’t,
57 Fed. Appx. 90, 92 (3d Cir. 2003) (using the “the same conduct” formulation
(quoting Anderson v. Haverford Coll., 868 F. Supp. 741, 745 (E.D. Pa. 1994))).
Mitchell v. City of Pittsburgh, 995 F. Supp. 2d 420, 431 n.3 (W.D. Pa. 2014).
Contrary to Plaintiff’s assertions, Hipkiss is not a similarly situated employee. In fact,
Hipkiss received more severe treatment than he did: the Postal Service tried to have him
removed after his first and second at-fault accidents. After the first accident, the removal was
requested by Ramsey and Battle concurred, and he was fired. (ECF No. 42 Ex. CC at USPS 3334, 37-38.) After the second accident, the removal was requested by Dziubinski and Battle
concurred, and he was again fired. (Id. at USPS 5-6, 11-12.) Even at the Step 2 level of the
grievance, Battle insisted on removing Hipkiss. (Id. at USPS 3-4.) The fact that the Union was
subsequently able to have Hipkiss’ removals reduced to LOWs and obtain his reinstatement on
two occasions does not demonstrate that he received more favorable treatment from the Postal
Service, his employer, particularly when, as the Postal Service observes, neither Battle nor
Dziubinski was involved in the grievance proceedings that achieved Hipkiss’ reinstatement. (Id.
at USPS 2, 32; Ex. U at WJ 88.)
McCartney’s situation is more complicated. On the one hand, the Postal Service
determined that McCartney was not at fault for his second accident (when he was rear-ended by
a POV) and Plaintiff does not dispute this conclusion.41 Unlike Plaintiff, therefore, McCartney
was not involved in three at-fault accidents and could be said not to constitute a proper
Plaintiff appears to challenge the Postal Service’s conclusion that McCartney was not at fault
for his third accident, noting that McCartney “carelessly” opened his door into a passing POV.
comparator. See Mitchell, 995 F. Supp. 2d at 432 (TD was a white paramedic who was
investigated for allegedly striking a patient, but his supervisor concluded that the evidence did
not support imposing discipline, unlike Mitchell, an African American paramedic who was
alleged to have inappropriately touched a co-worker and there was some evidence to support the
On the other hand, although the documents the Postal Service has submitted refer in
general terms to progressive discipline, they do not mandate that an employee receive an LOW
for a second at-fault accident or be terminated for a third one. See ECF No. 42 Ex. C at 149-50.
Indeed, as noted above, the Postal Service tried to have Hipkiss removed after only his first
accident. Thus, it is not clear that the question of comparators should be sliced as finely as
Defendant does herein.
The Court need not resolve this question, however, because Plaintiff has established that
McCloskey is a similarly situated employee: he was involved in three at-fault accidents,
including a second one in which he struck a POV (just like Plaintiff) and a third one in which his
vehicle “drifted into” the POV in front of him (just like Plaintiff), but he was issued an LOW
instead of a Notice of Removal. In fact, McCloskey probably engaged in more serious conduct
in that the record indicates he failed to report his accident for nearly five hours afterward. (ECF
No. 48 Ex. 29 at USPS 100.)
Defendant argues that McCloskey is a “full-time MVO with the full panoply of
progressive discipline rights,” unlike Plaintiff, who was a PSE.42 However, the issue in Count I
is not whether Plaintiff received the full range of progressive discipline rights (which is an
As noted above, the actual language from the MOU is that: “The full range of progressive
discipline is not always required for PSEs; however, the parties agree that an appropriate element
of just cause is that discipline be corrective in nature, rather than punitive.”
internal Union matter), but whether he was treated in a disparate manner because of his race.
The Postal Service did not inform Plaintiff at the time of his termination (and does not explicitly
argue here) that he was receiving “harsher discipline” because he was a PSE rather than a fulltime MVO. On the contrary, the record indicates that the Postal Service was treating the matter
as progressive discipline: a discussion after the first accident, an LOW after the second and
removal after the third. But the issue is why he received this removal when McCloskey received
only an LOW under similar circumstances.
Defendant also tries to suggest that the Union was responsible for McCloskey receiving
more favorable treatment, but McCloskey did not receive a notice of removal which was reduced
to an LOW during the grievance process (like Hipkiss). Rather, he received the LOW from the
Postal Service; the matter never reached the grievance process. And as noted above, the record
with respect to McCloskey indicates that, whatever advice the Postal Service received on this
matter from the Union, it was clear that “the final decision on this matter is yours.” (ECF No. 48
Ex. 29 at USPS 119.)
Defendant cites no authority in support of the argument that two otherwise similarly
situated employees can be further distinguished based on their positions within the Union or
whether they are full-time or part-time employees. Rather, as Judge Conti has observed, “[t]here
is no requirement that two employees be disciplined under the identical policy to be found
similarly situated.” Mitchell, 995 F. Supp. 2d at 432 (Mitchell was similarly situated to LK, a
white paramedic who allegedly struck a patient and thus both engaged in terminable offenses,
but LK was given only a suspension).
At this stage of the proceedings, Plaintiff must demonstrate that the Postal Service’s
articulated reason for his termination was a pretext for unlawful race discrimination. He can
proceed along “Fuentes prong one” by arguing that he has submitted evidence from which a
factfinder could reasonably disbelieve the employer’s articulated legitimate reason. Keller v.
ORIX Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) (en banc). Or he can proceed
along “Fuentes prong two” by arguing that Defendant’s own evidence “allows the fact finder to
infer that discrimination was more likely than not a motivating or determinative cause of the
adverse employment action.” Id. at 1111.
In the Mitchell case, Judge Conti held that the plaintiff satisfied his burden under Fuentes
prong two by pointing to evidence that the defendant treated similarly situated persons not of the
protected class more favorably. Specifically, she held that a reasonable fact finder could
conclude that Mitchell (an African American paramedic accused of inappropriately touching a
nurse) and LK (a white paramedic accused of striking a patient) were similarly situated and that
Mitchell was terminated while LK received only a three-day suspension and this was sufficient.
995 F. Supp. 2d at 435. The same reasoning would apply in this case: Plaintiff is similarly
situated to McCloskey but he was terminated while McCloskey received only an LOW.
Plaintiff also argues that he was subjected to discriminatory treatment because he refused
to be called “black.” As Defendant observes, this argument was never presented to any tribunal,
including this one, before his deposition. Plaintiff did not raise it during the extensive EEO or
grievance proceedings in multiple forums and he did not allege it in the Complaint or Amended
Complaint filed in this Court. See ECF Nos. 1, 4-5, 10, 15-16; ECF No. 42 Exs. U, BB.
Defendant indicates that no written discovery was requested regarding this issue, and none of his
immediate supervisors (Bradshaw, Ramsey or Dziubinski) or second-level supervisor (Battle)
were asked about it at their respective depositions. Thus, it is entirely undeveloped and will not
be explored further herein. Nor has Plaintiff cited any authority (and this Court is aware of none)
that would support a race discrimination case based on such an argument.
Nevertheless, for the reasons explained above, Plaintiff has pointed to evidence from
which the trier of fact could conclude that other, similarly situated non-members of his protected
category were treated more favorably under similar circumstances. Therefore, with respect to
Count I of the Complaint, the motion for summary judgment will be denied.
Count II: Hybrid Claim
In Count II, Plaintiff alleges that the Postal Service breached the CBA by imposing
discipline that was punitive in nature rather than corrective and that his removal was not for “just
cause.” Defendant argues that he cannot maintain a hybrid claim because the Postal Service did
not breach the CBA and the Union did not breach its duty of fair representation. Plaintiff
responds that he has established a hybrid claim because the Postal Service breached the CBA by
referring to his first accident when terminating him and because the Union breached its duty to
him by withdrawing the grievance. Defendant replies that citing the first accident but not relying
on it did not constitute a breach of the CBA and that the Union was not required to pursue what it
concluded to be a meritless case.
The Court of Appeals has explained that:
Ordinarily, an employee files a claim against the union alleging breach of
the duty of fair representation together with a claim against the employer alleging
breach of the collective bargaining agreement in a “hybrid” section 301/duty of
fair representation suit. In the “hybrid” suit, the plaintiff will have to prove that
the employer breached the collective bargaining agreement in order to prevail on
the breach of duty of fair representation claim against the union, and vice versa.
See United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 66-67, 101 S.Ct. 1559,
1565-66, 67 L.Ed.2d 732 (1981) (Stewart, J., concurring in the judgment). Thus,
the claims are “inextricably interdependent.” Id.; see also DelCostello v.
International Bhd. of Teamsters, 462 U.S. 151, 164-65, 103 S.Ct. 2281, 2290-91,
76 L.Ed.2d 476 (1983).
Nonetheless, the claims are not inseparable. A plaintiff who has a viable
“hybrid” claim against both the employer and the union may opt to bring only the
section 301 claim against the employer or the breach of duty of fair representation
claim against the union. See DelCostello, 462 U.S. at 165, 103 S.Ct. at 2291.
Either claim standing alone can be brought in federal court because each has an
independent jurisdictional basis. Id.
Felice v. Sever, 985 F.2d 1221, 1226 (3d Cir. 1993). A hybrid claim against the Postal Service
under 39 U.S.C. § 1208(b) is identical to a hybrid claim under § 301 of the Labor Management
Relations Act. Bowen v. U.S. Postal Serv., 459 U.S. 212, 232 n.2 (1983).
Defendant argues that Plaintiff cannot maintain a claim under either requirement of a
hybrid claim: he has no evidence that the Union breached its duty of fair representation under
these circumstances or that the Postal Service violated the terms of the CBA. Plaintiff disputes
these contentions. Because Plaintiff cannot establish that the Union breached its duty of fair
representation, the Court need not reach the issue of whether the Postal Service breached a
provision of the CBA.
As the exclusive bargaining representative for its employees, the Union has a duty of fair
representation. DelCostello, 462 U.S. at 164-65. However, “the union typically has broad
discretion in its decision whether and how to pursue an employee’s grievance against an
employer.” Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 567-68
(1990) (citing Vaca v. Sipes, 386 U.S. 171, 177 (1967)). “A breach of the statutory duty of fair
representation occurs only when a union’s conduct toward a member of the collective bargaining
unit is arbitrary, discriminatory, or in bad faith.” Vaca, 386 U.S. at 190. The Supreme Court has
further held that “a union’s actions are arbitrary only if, in light of the factual and legal landscape
at the time of the union’s actions, the union’s behavior is so far outside a ‘wide range of
reasonableness,’ Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 686, 97 L.Ed.
1048 (1953), as to be irrational.” Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67 (1991).
Defendant contends that the Union did not act irrationally when, having proceeded
through two steps of a grievance and having received a detailed decision denying it, it decided to
settle Plaintiff’s grievance challenging his third at-fault accident in less than two years.43 Jones
testified that, on behalf of the Union, he concluded that it could not succeed in having the
removal reduced after losing the case in two steps of the grievance process (Jones Dep. 28:1024) and Plaintiff has not even suggested that this assessment of the situation was inaccurate,
much less irrational.
Plaintiff argues that the Union did not consult him before settling the grievance, but
Defendant has submitted testimony that it had no such duty. (Jones Dep. 40:6-13, 52:5-24.)
Plaintiff points to no evidence to the contrary. Thus, as the Union was under no duty to consult
with him prior to settling the case and because it did not act irrationally in doing so, it was not in
breach of its duty of fair representation. Therefore, with respect to Count II, the motion for
summary judgment will be granted.
An appropriate order follows.
It is true that the Postal Service was not permitted to rely upon the first accident when
disciplining Plaintiff pursuant to the CBA. However, the issue for purposes of this claim is
whether the Union, which was aware of Plaintiff’s history of accidents, acted irrationally in
deciding not to pursue the grievance through the arbitration process.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MEGAN J. BRENNAN, UNITED STATES
Civil Action No. 15-1102
Magistrate Judge Mitchell
AND NOW, this 27th day of March, 2017, for reasons explained in the
IT IS HEREBY ORDERED that the motion for summary judgment filed on
behalf of the Defendant (ECF No. 40) is granted with respect to Count II of the Amended
Complaint and denied with respect to Count I.
s/Robert C. Mitchell___________
ROBERT C. MITCHELL
United States Magistrate Judge
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