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Freeman v. Brennan

United States District Court, W.D. Pennsylvania

March 27, 2017

ALFONSO FREEMAN, Plaintiff,
v.
MEGAN J. BRENNAN, UNITED STATES POSTMASTER GENERAL, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. MITCHELL United States Magistrate Judge.

         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.

         Facts

         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. 88:2-7[1]; Def.'s App. Ex. B at 1-2; Ex. K; Traficanti Decl. ¶ 3[2]). 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, 66:12-17, 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. ¶ 5[6].)

         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 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 1-3.)

         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. 8:17-24[7]; 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. 11:12-14[8]; 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 vehicle); and
• Results in death, injury, or property damage of 1 dollar or more (unless the vehicle is properly and legally parked).

         The following factors are not considered in determining if a motor vehicle accident has occurred:

• 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?
A: Yes.
Q: Did you understand that they potentially could have resulted in some sort of disciplinary action, each one?
A: Yes.

(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 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.)

         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 ¶ 70; Ramsey Dep. 37:15-38:4.) He testified as follows:

Q: Okay. Now, were you the one who ascribed fault for that accident to Mr. Freeman?
A: Yes.
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 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 proceeding?
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 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.)

         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-to-bumper 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. 85:14-86:14.)[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; 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: Yes.
Q: Why?
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 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 ¶ 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 at-fault 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] employees.

(Ex. U at ¶ 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 ¶ 13; Jones 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 ¶ 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 ¶ 7-8.)

         The Union appealed the decision to arbitration. (ECF No. 42 Ex. U at ¶ 4-6, 24; Jones Dep. 26:23-25.) William Jones, Vice President and Business Manager for the Union (Jones Dep. 6:20-21), testified:

Q: As of February 9th, 2015, there was every intention to proceed to arbitration; is that correct?
A: Yes.

(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 accident record.

(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 ¶ 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 ¶ 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 from his record.
If a resignation is not submitted the removal will stand.

(Ex. U at ¶ 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 agreement?
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?
***
A: Yes.
***
Q: And, would that agreement have been worked out between you and Mr.
[Traficanti]?
A: Yes.
***
Q: Did Mr. Freeman have any involvement?
A: No.
Q: And was the union required to involve Mr. Freeman in whether an agreement would be reached?
A: No.
Q: Not by contract, or anything else that would have required the union to involve him; correct?
A: No.

(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?
A: Yes.
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 ¶ 2-3.)

He testified further:
Q: How many discussions did you have with [Traficanti], prior to preparing this settlement agreement?
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 case.
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.
Freeman?
A: Yes.
Q: At any time was it determined, by the union, that something should have been done for Mr. Freeman, that wasn't?
A: No.
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?
A: No.

(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 process?
A: No.

(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?
A: No.

(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 that correct?
***
A: No, that's not fair to say.
Q: Okay. How would you have considered the nature of the incidents that he was involved in?
***
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 ...

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