United States District Court, E.D. Pennsylvania
March 2, 2004.
KENNETH L. HOFFMAN,
JOHN E. POTTER, Postmaster General, United States Postal Service
The opinion of the court was delivered by: THOMAS O'NEILL, Senior District Judge
Plaintiff, Kenneth L. Hoffman, brings this action against John E.
Potter, Postmaster General of the United States Postal Service alleging
age and disability discrimination in violation of the Age Discrimination
in Employment Act, 29 U.S.C. § 621 et seq. and the Rehabilitation Act of
1973, 29 U.S.C. § 701, et seq.*fn1 In addition to actual damages,
attorneys' fees and costs, plaintiff has requested punitive damages.
Before me now is defendant's motion for summary judgment, plaintiff's
response thereto and defendant's reply brief.
The U.S. Postal Service hired plaintiff in February 1996. Plaintiff was
assigned to be a letter carrier in the Phoenixville, Pennsylvania post
office. The Postal Service hires new letter carriers for a ninety day
probationary period. At the time of his hiring plaintiff was over the age of forty and had been diagnosed as suffering from hypertension and
At or about the time plaintiff was hired the Postal Service hired two
additional probationary letter carriers at the Phoenixville post office.
Both of the other probationary letter carriers were under forty years old
and without disability. They were hired at the end of their probationary
Prior to the end of his probationary employment period the Postal
Service terminated plaintiff's employment. Plaintiff claims that he
successfully performed the duties of his position, despite the disparate
training and treatment he claims to have received as a result of age and
disability discrimination. Plaintiff alleges that his termination was
also a result of age and disability discrimination by the Postal Service
and that the Postal Service's purported reason for the termination, his
inadequate performance, was merely a pretext for that discrimination.
STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides that "if the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with affidavits, if any, show that there is no genuine
issue as to any material fact," the moving party is entitled to summary
judgment. Fed.R.Civ.P. 56(c). I will apply the this rule in accordance
with Supreme Court and Third Circuit precedent. See, e.g., Anderson v.
Liberty Lobby. Inc., 477 U.S. 242, 247-48 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986); Williams v. Borough of W. Chester,
891 F.2d 458, 460 (3d Cir. 1989). DISCUSSION
I. The ADEA
The burden of proof for discrimination cases was established by
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).*fn2 Under the
McDonnell Douglas line of cases, as applied to the ADEA, a three step
analysis applies to pretext discrimination cases. Id. at 802-04. First,
the plaintiff must establish a prima facie case of discrimination. St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993). Plaintiff
establishes a prima facie case if he shows that he (1) is a member of the
protected class, i.e. at least 40 years of age; (2) is qualified for the
position; (3) suffered an adverse employment decision; and (4) has
sufficient evidence to create an inference of age discrimination.
Simpson, 142 F.2d at 644, n.5. The standard by which plaintiff must prove
his prima facie case is by a preponderance of the evidence. Texas Dept.
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Second, upon
such a showing by the plaintiff, the burden shifts to the employer to
produce evidence of a legitimate nondiscriminatory reason for the adverse
decision. Hicks, 509 U.S. at 506-07. Third, the plaintiff must then
demonstrate that the employer's articulated reason was not the actual
reason, but rather a pretext for discrimination. Id. at 507. The burden
of proving discrimination rests at all times with plaintiff. Burdine, 450
U.S. at 253.
A. Plaintiff's Prima Facie Case
Plaintiff has established that he is a member of the protected class of
the ADEA. He was over forty years old when all relevant employment decisions were
made. He suffered an adverse employment action when he was discharged
from his position as probationary letter carrier.
The parties agree that a letter carrier must be proficient at casing*fn3
and delivering mail. Plaintiff's only evidence in support of his
contention that he was qualified for the position of letter carrier is
employee time records from the Phoenixville post office. Each letter
carrier has an identification badge which he is to swipe in a computer
system to keep track of what task he has just completed. The computer
system prints reports of letter carrier time called "clock rings" so that
supervisors can monitor how much time each carrier is spending on his
daily tasks. Plaintiff points to the clock rings of himself and two
younger probationary employees who were hired, Phil Marcantonio and Brian
Bonsall, as evidence supporting his position that he was qualified for
the position. Pl.'s Reply to Def.'s Mot. for Summ. J. app. at 68-111. I
find those clock rings to be of no probative value because they do not
contain items of information that are necessary to explain the quality of
the work completed by each employee; for example, what tasks plaintiff
was assigned (more than just the route number on which he was working),
the quality of his work (whether mail was cased and delivered
correctly), whether he required assistance to finish his assignments and
whether he showed signs of improving his level of performance.
Plaintiff attempts to create an inference of age discrimination by
comparing his own time records to those of the two younger probationary
letter carriers who started at the Phoenixville post office about the
same time plaintiff began working there. Plaintiff argues that the clock rings show both that the younger letter carriers received more training
than he did and that plaintiff performed the job of letter carrier better
than they did.
Because Bonsall's clock rings only cover his first 32 days on the job,
I will compare the records of each employee's first 32 days in the employ
of the Postal Service to determine whether plaintiff has produced
evidence that he received less casing time because he is older. Using the
records plaintiff has provided for the first 32 days of each letter
carrier's employment I find that plaintiff spent approximately 86 hours
casing mail, Marcantonio spent approximately 65 hours casing and Bonsall
spent approximately 74 hours casing.*fn4 Pl.'s Reply app. at 106-10.
Because he actually spent more time casing mail than either of the
younger letter carriers, plaintiff has not presented evidence that he was
discriminated against in the amount of casing time he was given.
Plaintiff's evidence does not show that he performed better that the
two younger probationary letter carriers. The evidence that plaintiff points to
on this issue is again the clock rings of the three employees. Plaintiff
argues that the clock rings show that he was more successful at casing
and delivering a route when given the opportunity than were the other two
probationary letter carriers. As I mentioned before, I find that the
clock rings are not probative on the issue of job performance because
they do not contain sufficient information. They do not show whether the
letter carrier had help on the route, misdelivered mail or created other
customer service problems.
B. Defendant's Non-discriminatory Reason
Even if plaintiff had made out a prima facie case of age
discrimination, defendant presents a well-supported claim that it had a
legitimate non-discriminatory reason for not offering plaintiff a
permanent letter carrier position. Defendant states that plaintiff was not
hired because he failed to master the essential functions of a letter
As standard practice the Postal Service has probationary letter
carriers' supervisors complete an Employee Evaluation and/or Probationary
Report 30, 60 and 80 days after the employee begins working for the
Postal Service. Kenneth Sands, a delivery supervisor at the Phoenixville
post office, completed the evaluations of plaintiff's performance. Pl.'s
Reply app. at 25-26. Sands testified that for these reviews he gathered
information about what the probationary employee had done. Id. at 27-28.
He stated that his expectations would vary with what assignments the
employee had been given. Id. Two important factors that Sands mentioned
were attendance and reporting times, "[t]o see if they're on schedule, to
see how long they're taking." Id. Sands also considered whether the
employee had any assistance while delivering the mail. Id. at 31.
Postmaster Schoch added that customer complaints and misdelivered mail are problems that would affect a letter carrier's performance
evaluation. Id. at 48-49.
Plaintiff's scores for almost every category on his 30, 60 and 80 day
evaluations were "unacceptable." Def. Mot. app. at 3, boxes 7b, 8b and
9b. At each review he received a "satisfactory" rating for work relations
and at the 60 and 80 day reviews he received a "satisfactory" rating for
work methods. Id. His "unacceptable" ratings were for: work quantity,
work qualify, dependability and personal conduct. Id. Plaintiff signed
each review. Id.
In addition to the performance reviews, defendant has provided
testimony by plaintiff's supervisors that support its position that
plaintiff was not qualified for the job. Postmaster Schoch testified that
plaintiff's ability to case the mail was "the biggest thing that hurt
him." Id. at 69. One of the shift supervisors testified that he helped
plaintiff with his casing "many times". Id. at 38. Plaintiff never met the
minimum standards of casing ability expected for probationary letter
carriers. Id. at 41; 59-60; 63.
There is also evidence that plaintiff did not meet the performance
requirements for delivering mail. Postmaster Schoch testified that postal
customers called him to complain about plaintiff asking them to help him
find addresses on his route. Id. at 57. Schoch also sent other carriers
to assist plaintiff in delivering the mail on his route. Id. at 58.
The plaintiff's burden at the pretext stage has been summed up this
way: "the plaintiff cannot simply show that the employer's decision was
wrong or mistaken. . . . Rather, the non-moving 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) (citation and internal quotation marks omitted). Plaintiff
does not make an argument specifically on pretext; however, I assume he
would reiterate his prima facie case arguments and support them with the
same evidence. As previously stated, plaintiff has not come forward with
any evidence that defendant discriminated against him because of his
II. The Rehabilitation Act
A. Plaintiff's Prima Facie Case
To establish a prima facie case of discrimination under the
Rehabilitation Act, a plaintiff must demonstrate that he:
(1) is person with a disability withing the meaning of
the Rehabilitation Act;
(2) is otherwise qualified to perform the essential
functions of the job, with or without reasonable
accommodations by the employer; and
(3) has suffered an adverse employment decision as
a result of discrimination.
Shaner v. Synthes (USA). 204 F.3d 494
, 500 (3d Cir. 2000).
Defendant moves for summary judgment on plaintiff's claim under the
Rehabilitation Act because plaintiff does not meet the Act's definition
of a person with a disability. The Act defines a "disability" as "a
physical or mental impairment which substantially limits one or more of
major life activities" or "being regarded as having such an impairment."
29 C.F.R. § 1614.203(a)(1) (providing that ADA standards apply to
Rehabilitation Act claims); 42 U.S.C. § 12102 (ADA definition of
"disability). In deciding this issue I rely on the law developed in
relevant statutory, regulatory and case law. See, e.g. 42 U.S.C. § 122101
et seq.; 29 U.S.C. § 791 et seq.; Toyota Motors Mfg. v. Williams. 53 U.S. 154, 197 (2002); Sutton
v. United Airlines. Inc., 527 U.S. 471, 482-83 (1999); 29 C.F.R. § 1630.
Under the applicable law plaintiff was not a person with a disability
and has not come forward with any evidence that he was regarded as having
a disability. Therefore, he is not entitled to the protection of the
Plaintiff testified that he was diagnosed with anxiety at the time he
was honorably discharged from the United States Navy in 1971, but that he
did not seek treatment for the condition until 1994 or 1995. Def.'s Mot.
app. at 22-24. He served in the Vietnam War. Id. at 2. His discharge
papers from the Navy indicate that plaintiff was "entitled to receive
severance pay" due to a "physical disability." Id. It is undisputed that
plaintiff has taken medication for years to control hypertension. Id. at
23. It is also undisputed that he was taking medication for anxiety
during the period he worked for the Postal Service.
Plaintiff's own testimony proves that he did not have a disability
under the Rehabilitation Act. When asked if he thought his anxiety
disorder "affected [his] being able to work at the Postal Service" or
"affect[ed] [his] casing ability," plaintiff answered "no," partly
because at that time he was under medication. Id. at 13. Plaintiff went
on to add that "even without medications" he had "held jobs." Id. He did
not testify that any major life activity is affected by his anxiety. Nor
has plaintiff come forward with evidence that he was regarded as having a
disability. He testified that he did not tell his supervisors at the
Phoenixville Post Office about his anxiety condition. Id. at 12.
Plaintiff did have a veteran's preference because of a disability
either hypertension or anxiety but a veteran's preference does not
indicate a disability of the severity that it would substantially limit
one or more of plaintiff's major life activities. Plaintiff has not presented evidence that he was qualified for the
position of letter carrier. Furthermore, he has not testified to or
presented any other evidence of any accommodation that would allow him to
perform as a letter carrier.
B. Defendant's Non-discriminatory Reason
Again, even if plaintiff made out a prima facie case of disability
discrimination, defendant has met the burden of showing a legitimate
non-discriminatory reason for plaintiff's termination.
Plaintiff has not produced any evidence indicating that the Postal
Service discriminated against him because of a disability or record
I will grant defendant's motion for summary judgment. Plaintiff has
failed to prove that he was qualified for the position of letter carrier
or that he is a person with a disability as defined by the Rehabilitation
Act. Defendant has presented a legitimate non-discriminatory reason for
discharging plaintiff and plaintiff has failed to come forward with
evidence that creates a genuine issue of material fact regarding pretext. ORDER
AND NOW, this day of March 2004, after considering defendant's renewed
motion for summary judgment and plaintiff's response thereto, and for
reasons set forth in the accompanying memorandum, the motion is GRANTED.
Judgment is entered in favor of defendant and against plaintiff.