United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION AND ORDER
C. MITCHELL United States Magistrate Judge.
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.
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.
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; Def.'s App. Ex. B at 1-2; Ex. K;
Traficanti Decl. ¶ 3). Plaintiff was hired by Anthony
Battle, Transportation Manager. (Battle Dep.
109:9-10.) 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; Dziubinski Dep.
48:17-20; 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
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.)
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.)
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; 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; Dziubinski Dep. 11:5-7; Battle Dep.
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.)
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
Postal Service defines a Motor Vehicle Accident as follows:
Motor Vehicle Accident. Any accident involving a motor
• 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
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.)
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.)
testified as follows:
Q: Let me ask you as a general matter, did you take seriously
the incidents that occurred, one, two and three?
Q: Did you understand that they potentially could have
resulted in some sort of disciplinary action, each one?
(Freeman Dep. 87:19-88:1.)
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.
30, 2013 Accident
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.)
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).
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.
13, 2014 Accident
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.)
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.) 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.
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.)
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
Q: Okay. Now, were you the one who ascribed fault for that
accident to Mr. Freeman?
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
A: Because I felt he could have avoided it if he would have
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.)
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.)
Weisser, a Union Steward and Postal Service driver, testified
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
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
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
Q: All right.
A: I've been driving 30 years.
(Weisser Dep. 6:9-15, 22:18-21, 24-25,
13, 2014 Accident and Removal
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.)
notes that an earlier version of this accident report states
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.) 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.)
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
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.
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.) 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,
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.)
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.) Plaintiff testified further as
Q: Sir, is it your belief that you should have been retained
on the job at the postal service following the three
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
(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.) 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.)
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 -
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]
(Ex. U at ¶ 19-20 (box 12, Reason for Decision).)
Postal Service stated further in the Grievance Summary - Step
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)).
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.)
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.
Q: As of February 9th, 2015, there was every intention to
proceed to arbitration; is that correct?
(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.
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.) Plaintiff indicates that his consent was
not sought prior to this agreement to settle the matter.
(Jones Dep. 40:6-7.)
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
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.
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?
Q: And, would that agreement have been worked out between you
Q: Did Mr. Freeman have any involvement?
Q: And was the union required to involve Mr. Freeman in
whether an agreement would be reached?
Q: Not by contract, or anything else that would have required
the union to involve him; correct?
(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.)
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
Q: Okay. Was that requested, did you make the request for him
to be able to change his removal to a resignation?
Q: And, Mr. [Traficanti], obviously, that was eventually
agreed to, was that initially agreed to when you first asked
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
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.
Q: At any time was it determined, by the union, that
something should have been done for Mr. Freeman, that
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?
(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?
(Jones Dep. 52:5-24; Traficanti Decl. ¶ 11.)
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.
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?
(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
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 ...