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Berkeley v. Potter

March 18, 2008


The opinion of the court was delivered by: Hillman, District Judge


This matter has come before the Court on defendants' motion for summary judgment on plaintiff's claims for hostile work environment and disparate treatment based on his race and gender. For the reasons expressed below, defendants' motion will be granted.


This case mainly involves an incident that occurred on July 29, 2004 between plaintiff and his supervisor at the United States Postal Service's South Jersey Processing & Distribution Center ("PDC"). According to plaintiff,*fn1 when he was working at the PDC on the evening of July 29, 2004, Kim Parker-McKeever, a Supervisor of Distribution Operations ("SDO"), asked him to weigh the third class mail "when he got a chance." About a half hour later, Tim Oswald, the Manager of Distribution Operations ("MDO") who was senior to Parker-McKeever, questioned plaintiff about why he was not weighing the third class mail. According to plaintiff, Oswald talked condescendingly to him and did not listen to plaintiff's reasons for why he had not yet started to weigh the third class mail. One reason plaintiff related to Oswald was that Parker-McKeever had only asked plaintiff to do it when he had a chance since he was busy working on the first class mail. Plaintiff claims that Oswald ordered him to do it immediately.

When plaintiff tried to walk away in order to begin weighing the mail, Oswald stopped in a narrow space at the same time plaintiff was passing through the space. They brushed chests.

Plaintiff claims that Oswald would not move out of plaintiff's personal space, and threatened him with his posture. Plaintiff also claims that Oswald put his face extremely close to plaintiff's face, and continued touching his chest and body to plaintiff's. Plaintiff claims that Oswald was so close to him that he could "see the cracks in his lips and smell the cigarette on his breath." According to plaintiff, Oswald whispered, "Are you calling my supervisor a liar?," to which plaintiff responded by asking "What are you doing?" and backed away. Plaintiff claims that Oswald then gave him a "strange and unusual, queer gaze," and stated, "Nothing just standing here." Plaintiff then walked away to report the incident to his immediate supervisor, SDO Ray Perez, because he "wanted to get away from Tim and the hostile & sexual environment he created."

Plaintiff claims that while he was trying to tell Perez what had just occurred, Oswald continued to talk over him. Plaintiff reports that Oswald was acting emotional, aggressive and insistent, and wanted plaintiff to follow him alone into a room off of the work floor. Plaintiff states that he raised his voice to ask for a union shop steward, because he did not trust Oswald.

At some point, plaintiff and Oswald went into a conference room, and sat down at opposite sides of the table. Perez stood at the conference room door, watching the work floor and waiting for the shop steward. While they were waiting for the shop steward, plaintiff and Oswald continued their dialogue. Plaintiff claims that Oswald made accusations about plaintiff and expressed dissatisfaction with plaintiff's work. Plaintiff relates that in response, he "brought up some things that while under duress [Oswald] coerced me and others into doing to make himself look good and flawless with the mail to his fellow supervisors, MDOs and especially the Plant Manager which he always wanted so desperately to impress."

Plaintiff then claims that because he would not respond to Oswald's insults, Oswald stopped talking. According to Plaintiff, Oswald took Perez into another room. MDO Robert Steelman, who was Oswald's superior, then came into the room to inform plaintiff that he was being suspended for what Oswald wrote in his written statement, which was that plaintiff had threatened Oswald. Plaintiff denies that he threatened Oswald, and complains that Steelman did not ask plaintiff his version of events, that he received a suspension without a shop steward present, and that he was assured he would receive pay while suspended, which did not turn out to be true. Plaintiff was escorted to his work area to collect his belongings and then out of the facility. No charges were ultimately filed, however, and after a grievance filed by plaintiff's union, plaintiff was permitted to return to work without objection from the Post Office. Plaintiff lost five days of pay, but no formal discipline was ever initiated against him.

Plaintiff also claims that this was not the first time Oswald had harassed him. Plaintiff claims that, as observed by two of his fellow mail handlers, Oswald blamed him for mail handling mistakes that were not his fault. Plaintiff further claims that Oswald used other supervisors as pawns to get at him, "tapped [his] pay administratively after being adjusted between [him] and [his] supervisor," and he and other MDOs have not supported his military obligations.

Based on this conduct, plaintiff alleges that defendants are liable for Oswald's sexual harassment of him and the creation of a hostile work environment in violation of Title VII of the Civil Rights Act. Plaintiff, who is African American, also alleges that defendants are liable for racial discrimination in violation of Title VII.

Defendants relate a different version of events, and deny that Oswald made any inappropriate, sexually harassing comments to plaintiff. They also deny that plaintiff's race was a factor in his placement on non-duty status. Relevant for the purposes of this summary judgment motion, Oswald admits that the two men brushed chests, but Oswald claims that it was plaintiff who started to walk by Oswald who was standing in the confined space. Oswald claims that plaintiff became loud, agitated and animated. Oswald agrees that plaintiff yelled for SDO Perez. Perez states that he observed both men using loud voices and were upset, with plaintiff repeatedly calling for the shop steward. Perez instructed Oswald and plaintiff to take the matter off of the work floor, and the three of them went into the conference room. Perez heard the two men talking in a normal speaking tone, but at some point Oswald approached Perez at the door and informed him that plaintiff had made a statement to Oswald that he perceived to be a threat. Oswald claims that plaintiff said that plaintiff "should have gone to [Oswald's] house in Stratford like I was going to." When Oswald asked if that was a threat, Oswald claims that plaintiff replied, "You'll find out." Oswald left the conference room and prepared a written statement. He also notified MDO Steelman about the incident.

Because Steelman could not locate a shop steward, plaintiff elected to have his fellow mail handler, Kevin Shanks, present while Steelman and Perez interviewed him concerning the threat. Plaintiff denied making the threat, but he did not write a written statement, which Steelman states that he urged plaintiff to do.

Perez states that pursuant to USPS policy he placed plaintiff on emergency non-duty status, which was concurred to by Steelman, and then escorted plaintiff from the building. According to the controlling national contract in effect between the USPS and the National Postal Mail Handlers Union, the USPS was permitted to immediately place an employee in off-duty status without pay in a situation where retaining the employee on duty may be injurious to others. Perez and Steelman state that because they never knew Oswald to lie, and because Oswald made a written statement alleging that plaintiff had threatened him, they agreed that the emergency placement for plaintiff was the best course of action at that time. Steelman states that the emergency non-duty placement usually results in no formal discipline, and it is used to allow time for things to cool down.

Defendants have moved for summary judgment on all of plaintiff's claims. Plaintiff has opposed this motion, and has also argued that it is premature because there are two outstanding subpoenas to two unions requesting copies ...

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