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Antonio Mercado, Jr v. John E. Potter

March 3, 2011


The opinion of the court was delivered by: Hon. Joseph H. Rodriguez


This is an employment discrimination case brought by Plaintiff Antonio Mercado, Jr. against his former employer, the U.S. Postal Service, through Defendant John E. Potter, Postmaster General. Plaintiff has alleged that he was terminated from his employment with the Postal Service in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, because he was discriminated against due to national origin (Hispanic/Puerto Rican) and gender (male). Defendant has filed a motion for summary judgment on the Complaint, and oral argument on the motion was heard on March 1, 2011. The record of that argument is incorporated here. For the reasons discussed on the record, and those set forth here, the Defendant's motion for summary judgment will be granted.


On or about July 8, 2006, Plaintiff was hired by the Postal Service as a part-time flexible (PTF) sales associate in the Atco, New Jersey Post Office.*fn1 As an initial hire,

Plaintiff was subject to a 90-day probationary period. At that time, the Atco Post Office was comprised of three full-time clerks, three PTF clerks, and one casual clerk. Whereas PTF clerks are intended to fill career positions, casual clerks are temporary employees. (Compl. ¶ 5-8.)

Plaintiff was the only Hispanic employee at the Atco Post Office, and he alleges that he developed a professional rapport among the Spanish speaking clientele. Nonetheless, Plaintiff contends that management favored a non-Hispanic, female casual employee, Ashley Hoak. For example, Plaintiff endured split shifts, where he would have a four to five hour break in his workday, and return to work the customer service window for approximately an hour and a half. He alleges that Ms. Hoak would continue to work during Plaintiff's extended break times. Additionally, Plaintiff alleges that when he was told to go on break, many times he was working the same mail handling machines as Ms. Hoak, and she was permitted to continue to work on the machines. Finally, Plaintiff asserts that Ms. Hoak received more assistance from management than he did. Plaintiff contends that his termination was motivated by the Postal Service management's efforts to show favoritism to Ms. Hoak in order to eventually place her into a PTF position. (Compl. ¶ 10-15.)

Since he was on a probationary period, Plaintiff's performance was scheduled to be reviewed after 30, 60, and 80 days. Plaintiff's supervisor was Joseph P. Manzo, so he was responsible for performing the performance evaluations. Since Manzo was a relatively new supervisor as of August 6, 2006,*fn2 George Donahue, Postmaster of the

Atco Post Office, assisted with Plaintiff's 30-day evaluation. At that time, Plaintiff received a satisfactory rating. (Compl. ¶ 16-19.)

On September 5, 2006, for his 60-day evaluation, Plaintiff received an unsatisfactory rating. Similarly, Plaintiff's 80-day evaluation on September 25, 2006 resulted in an unsatisfactory rating. As a result, Donahue advised Plaintiff via letter that Plaintiff was to be terminated, effective close of business September 26, 2006, due to unsatisfactory job performance during his probationary period. (Compl. ¶ 21-25.)

Plaintiff has asserted that "the 60-day and 80-day evaluations, because of their overall consistency of 'unacceptable,' appear to be discriminatory on their face." (Compl. ¶ 26.) Plaintiff contends that the factors that were considered in employee evaluations were: work quality, work quantity, dependability, work relations, work methods, and personal conduct. He alleges that he "never took leave, was always on time, always did work that was assigned to him, and never caused any problems." (Compl. ¶ 27.)

Accordingly, after his termination, Plaintiff filed an EEO complaint with the Postal Service. An administrative hearing was held before an administrative law judge, who made a finding of no discrimination on May 15, 2008. On May 20, 2008, the Postal Service accepted and fully implemented the ALJ's decision, and issued a final agency decision. The Postal Service's decision was affirmed by the EEOC on September 9, 2008, and Plaintiff's request for reconsideration was denied on December 8, 2008. Thus, Plaintiff was issued a right to file a lawsuit within 90 days of his receipt of the December 8, 2008 denial of reconsideration. Plaintiff filed suit in this matter on March 12, 2009, alleging that his termination on September 26, 2006 was discriminatory. (Compl. ¶ 31-36.)


A. Summary Judgment Standard "Summary judgment is proper if there is no genuine issue of material fact and if,

viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (a). The Court will enter summary judgment in favor of a movant who shows that it is entitled to judgment as a matter of law, and supports the showing that there is no genuine dispute as to any material fact by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56 (c)(1)(A).

An issue is "genuine" if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.;

Maidenbaum v. Bally's Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Andersen, 477 U.S. at 256-57. "A nonmoving party may not 'rest upon mere allegations, general denials or . . . vague statements . . . .'" Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.

Celotex, 477 U.S. at 322. That is, the movant can support the assertion that a fact cannot be genuinely disputed by showing that "an adverse party cannot produce admissible evidence to support the [alleged dispute of] fact." ...

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