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Lavorgna v. Potter

April 18, 2007


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



Plaintiff, a letter carrier, contends that he was discriminated against on the basis of his gender and retaliated against for having engaged in protected activity, both in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). The Government argues that it is entitled to summary judgment on Plaintiff's claims. The Motion is granted with respect to the retaliation claim and denied in all other respects.


Plaintiff Kevin Lavorgna ("Lavorgna") has worked as a letter carrier since 1989. During that time he has been assigned to the Cannonsburg, Pennsylvania facility. Lynn Jones ("Jones"), another letter carrier, was one of Lavorgna's co-workers at the Cannonsburg facility.

Lavorgna has proffered evidence suggesting that, on December 20, 2003, Jones was upset with Lavorgna because she believed that he was treated more favorably than she. Shortly thereafter, on that same day, she accused Lavorgna of making a sexual gesture towards her. Nobody witnessed that gesture. When Jones reported the incident three days later, Robert Mullin ("Mullin"), the Postmaster of the Cannonsburg facility and Lavorgna's and Jones's supervisor, conducted an investigation.

Shortly before Mullin began the investigation, Jones had made a complaint that Mullin had engaged in gender discrimination. Further, seven days after Jones complained about Lavorgna, she filed a union grievance against Mullin for alleged unfair treatment by Mullin. Finally, Mullin had been demoted in the past following an investigation of his alleged sexual harassment of female subordinates.

The initial investigation proved inconclusive. Jones subsequently told Mullin that witnesses would be able to corroborate her story. The witnesses were alleged to have heard Lavorgna "confess" that he had made the sexual gesture toward Jones. Though Mullin found that these witnesses did, in fact, support Jones's version of events, the witnesses (Rob Coyle and Donald Caldwell) have stated that Mullin mischaracterized their statements. Indeed, they state that they only told Mullin that Lavorgna explained what Jones alleged he had done.

Another incident occurred on March 9, 2004. On that date, Mullin entered the work room floor to find Lavorgna laughing. Apparently, Lavorgna was laughing loudly and Mullin deduced that the laughter stemmed from Lavorgna having had Jones served at work with a harassment complaint filed with the local magistrate. Jones provided Mullin with a statement that Lavorgna's laughter was meant to mock her. Mullin explained to Lavorgna that it was reasonable for Jones to believe his laughter was directed at her.

Other co-workers contend that it was a common practice to joke and laugh while on the work room floor. Indeed, nobody had ever been reprimanded for such behavior in the past. Lavorgna contends that he was mocking the laughter of a different co-worker at the time. Another co-worker confirms this representation, but states that Mullin never interviewed him about the incident.

On March 10, 2004, Lavorgna and his Union Steward met with Mullin in Mullin's office. Mullin and Lavorgna have different views on what exactly transpired at the meeting. Lavorgna contends that Mullin began screaming and swearing at him and that Lavorgna began to feel ill and had to leave to see a doctor.

Mullin filled out a March 16, 2004 Request for Disciplinary Action. It included two counts of sexual harassment (inappropriate behavior / hostile work environment - based upon the sexual gesture and the laughing incident); providing a false written statement (apparently Lavorgna's written version of events surrounding the alleged sexual gesture); failure to follow instructions (at the March 10, 2004 meeting); and "AWOL" on March 10th-13th. On March 25, 2004, Lavorgna received a Notice of Suspension of 14 days or less. The Notice referenced both the sexual gesture and the laughing incident but did acknowledge that Lavorgna had supplied excused absences for March 10th through the 13th.

Lavorgna eventually filed two complaints with the Equal Employment Opportunity Commission ("EEOC") - one relating to the suspension and one relating to two main complaints occurring after the suspension. Those complaints focused upon an alleged requirement that he work outside his medical restrictions on two occasions and upon his working a T-6 Tour. With respect to the medical restrictions, following suspension, Lavorgna took a medical leave. Eventually, he returned with a medical restriction that he not work beyond eight hours a day. He contends that, on two occasions, he was forced to work outside of his medical restrictions. It appears that, on August 6, 2004 and again on September 3, 2004, he worked slightly more than an eight hour work day (he worked .96 hours of overtime on August 6th and .58 hours of overtime on September 3rd).

With respect to the T-6 Tour allegations, Lavorgna complains that he was unfairly denied the opportunity to "hold down" (substitute) Lynn Jones's T-6 Tour. A T-6 Tour is a delivery route which consists of a different route for each of the five days a letter carrier works. It generally is accorded a higher rate of pay than a regular city route - where a carrier delivers the same route ...

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