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Kea v. Donahoe

United States District Court, E.D. Michigan, Southern Division

August 13, 2015

David C. Kea, Sr., Plaintiff,
Patrick R. Donahoe, Postmaster General of the United States, Defendant

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David C Kea, Plaintiff, Pro se, Redford, MI.

Patrick R. Donahoe, Defendant, Pro se, Brownstown, MI.

Gary S Robinson, Defendant, Pro se, Trenton, MI.

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Sean F. Cox, United States District Judge.

Plaintiff brought this employment discrimination action against his employer, the United States Postal Service, alleging unlawful race discrimination and retaliation claims under Title VII. The matter is currently before the Court on Defendant's Motion for Summary Judgment. The parties have briefed the issues and the Court heard oral argument on August 6, 2015. For the reasons set forth below, the Court shall GRANT THE MOTION IN PART AND DENY IT IN PART. The motion shall be GRANTED to the extent that Defendant is entitled to summary judgment in its favor with respect to the following claims: 1) Plaintiff's disparate-treatment race-discrimination claim based upon being placed on off-duty status in 2010; and 2) Plaintiff's hostile work environment claims based on both race and retaliation. The Motion shall be DENIED in all other respects. As such, the following claims shall proceed to trial: 1) Plaintiff's disparate-treatment race-discrimination claim based upon the vehicle restriction; and 2) Plaintiff's retaliation claim based upon the vehicle restriction.


Acting pro se, Plaintiff David C. Kea, Sr. (" Plaintiff" or " Kea" ) filed this action against Defendant Patrick R. Donahoe, the Postmaster General of the United States Postal Service and two individual defendants. Plaintiff later obtained counsel and dismissed the individual defendants, leaving the Postal Service as the only remaining defendant.

Plaintiff's " Amended Complaint Second With Jury Demand" is Plaintiff's operative Complaint in this action and it includes the following counts: 1) " Unlawful Discrimination Based On Race/National Origin" in violation of Title VII (Count I); 2) " Retaliation" in violation of Title VII (Count II); and 3) " Discrimination Through Conflict of Interest and Criminal Activity in Violation of 42 U.S.C. § 1981a" (Count III). But on June 19, 2014, Plaintiff stipulated to dismissing Count III and striking his request for punitive damages. ( See Docket Entry No. 37). Thus, only Counts I and II remain.

Following the close of discovery, Defendants filed a Motion for Summary Judgment. (Docket Entry No. 43).

This Court's practice guidelines, which are expressly included in the Scheduling Order issued in this case, provide, consistent with Fed.R.Civ.P. 56 (c) and (e), that:

a. The moving party's papers shall include a separate document entitled Statement of Material Facts Not in Dispute. The statement shall list in separately numbered paragraphs concise statements of each undisputed material fact, supported by appropriate citations to the record. . .

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b. In response, the opposing party shall file a separate document entitled Counter-Statement of Disputed Facts. The counter-statement shall list in separately numbered paragraphs following the order or the movant's statement, whether each of the facts asserted by the moving party is admitted or denied and shall also be supported by appropriate citations to the record. The Counter-Statement shall also include, in a separate section, a list of each issue of material fact as to which it is contended there is a genuine issue for trial.
c. All material facts as set forth in the Statement of Material Facts Not in Dispute shall be deemed admitted unless controverted in the Counter-Statement of Disputed Facts.

(Docket Entry No. 30 at 2-3).

Both parties complied with the practice guidelines. Thus, as to Defendant's Motion for Summary Judgment, Defendants submitted a Statement of Material Facts Not In Dispute, which shall be referred to as " Def.'s Stmt." , and Plaintiff filed a Counter-Statement of Disputed Facts, which shall be referred to as " Pl.'s Stmt." (Docket Entry Nos. 43-1 and 46-2).

The following material facts are gleaned from the evidence submitted by the parties, viewed in the light most favorable to Plaintiff, the non-moving party.

Plaintiff began working for the United States Postal Service on August 18, 1984, as a part-time flexible letter carrier at the Plymouth, Michigan Post Office. (Def.'s and Pl.'s Stmt. at ¶ 1). Plaintiff became a full-time, regular letter carrier in October of 1985. ( Id. at ¶ 2).

In December of 1989, the Postal Service issued Plaintiff a Notice of Removal for failing to disclose his criminal history. The Postal Service later reduced his Notice of Removal to a 7-day suspension. (Def.'s and Pl.'s Stmt. at ¶ 3).

Plaintiff continued to work as a letter carrier until April 2008. (Def.'s and Pl.'s Stmt. at ¶ 4). While employed as a letter carrier, Plaintiff filed several EEO complaints.

Plaintiff's EEO Activity While Employed As A Letter Carrier

On April 1, 2004, Plaintiff filed an EEO Complaint alleging race discrimination and retaliation after the Postal Service denied him the opportunity to review his Official Personnel Folder (OPF). Plaintiff also alleged being denied the ability to move freely about the post office because of sexual harassment allegations. (Def.'s and Pl.'s Stmt. at ¶ 5; Ex. I to Pl.'s Br.).

In June of 2004, Plaintiff filed an EEO Complaint, alleging race and age discrimination. Plaintiff alleged that he was denied a change in schedule while other employees, some of whom are white and younger, were allowed to change their schedules. (Ex. I to Pl.'s Br.).

In February of 2005, Plaintiff filed an EEO Complaint, alleging he had been retaliated against in various ways. ( Id. ).

In June of 2005, Plaintiff filed an EEO Complaint alleging retaliation after the Postal Service allegedly denied him time to complete EEO paperwork. (Def.'s and Pl.'s Stmt. at ¶ 8).

Plaintiff Bids On And, Ultimately Receives, A VOMA Position

A Vehicle Operation Maintenance Assistant (" VOMA" ) is a job position at the Postal Service that services vehicle repairs including vehicle checks for flat tires, inoperable vehicle lights and electrical issues. VOMAs also arrange for tow trucks from Postal Service contractors when necessary and locate parts at any of the Vehicle Maintenance Facilities (" VMF facilities" ). VOMAs are responsible for bills related to vehicle repairs including verifying that repairs were completed and that the repair

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cost is accurate. VOMAs also hire contractors. (Def.'s and Pl.'s Stmt. at ¶ ¶ 9-12). VOMAs are stationed in Plymouth, Westland, and Canton, Michigan.

Ken Ross (who is white) worked as a VOMA at Livonia; Karen Blackney (who is white) worked as a VOMA at Westland, Glen Erickson (who is white) worked as a VOMA at Canton.

The Postal Service also employs mechanics at the VMFs. Mechanics inspect vehicles, replace parts, and perform repairs. At the times relevant to Plaintiff's complaint, the Livonia VMF mechanics included: Bryan Ferguson (who is African-American), David Stroshein (who is white), David Briscoe (who is white), Walter Sajewski (who is white), Mike Dillman (who is white), and Paul Guevara (who is Hispanic). (Def.'s and Pl.'s Stmt. at ¶ ¶ 15-16).

Gary Robinson supervised the mechanics and VOMAs at the Livonia VMF. Robinson worked as a manager of the Livonia VMF from 2003 until March of 2011. Carol Piechota works as the auto parts storekeeper at the Livonia VMF. Piechota has worked in that position since 2006 and Robinson was her supervisor. (Def.'s and Pl.'s Stmt. at ¶ ¶ 17-19).

In November of 2007, Plaintiff bid on a VOMA position at the Plymouth, Michigan Post Office. Although the Postal Service posted that VOMA position at the Plymouth Post Office, Robinson would be that VOMA's supervisor. After Plaintiff bid on that VOMA position, Robinson removed the VOMA posting from the Plymouth Post Office and instead posted it at the Livonia VMF. As a result of moving the VOMA posting to Livonia, Plaintiff, a Plymouth Post Office employee, could no longer bid on the VOMA position. Instead, only the Livonia VMF employees could bid on the VOMA posting. (Def.'s and Pl.'s Stmt. at ¶ ¶ 20-23).

According to Plaintiff, Jack Warner, a retired VOMA, informed Robinson that Plaintiff intended to bid on the VOMA position once the Postal Service posted it at the Plymouth Post Office. (Def.'s and Pl.'s Stmt. at ¶ 26).

Plaintiff filed an EEO Complaint over the VOMA position. (Pl.'s Dep. at 26). Both Plaintiff and Robinson attended an EEO redress concerning Plaintiff's bid for the VOMA position. In resolution of Plaintiff's EEO Complaint, the Postal Service re-posted the VOMA position at the Plymouth Post Office. (Def.'s and Pl.'s Stmt. at ¶ 31).

In April of 2008, Plaintiff bid for and received the VOMA position at the Plymouth Post Office. (Def.'s and Pl.'s Stmt. at ¶ 32).

After the Postal Service awarded Plaintiff the VOMA position, Robinson re-posted the hours by changing the off-day to Tuesday. The Post Office, however, returned the hours to those listed on the original VOMA position, with Saturday as the off-day. Union representative Don Oziemski asked Robinson why he changed the off days and Robinson responded " because he can." (Def.'s and Pl.'s Stmt. at ¶ ¶ 33-35).

On May 16, 2008, Plaintiff wrote a letter to the then-Postmaster of the Plymouth Post Office, stating that employees at that office harassed him because they wanted a white employee named Lee Wetherford to receive the VOMA position. The Plymouth office employees, including Wetherford's wife, made comments to Plaintiff about washing their windows. The Plymouth Post Office employees, according to Plaintiff, also took tools out of Plaintiff's truck. Plaintiff complained to Robinson and Robinson bought Plaintiff new tools. (Def.'s and Pl.'s Stmt. at ¶ ¶ 36-37). Plaintiff also stated in that letter than an unidentified employee would not give him keys that he needed, and it took management a week to find them. (Ex. B to Pl.'s

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Br.). Plaintiff also complained about being denied overtime, being required to remove an ear piece, and that some employees were not parking correctly. ( Id. ).

Plaintiff typically begins his work day at the Plymouth Post Office, where he maintains an office, at about 7:00 a.m. Plaintiff is responsible for about 60 Plymouth and Northville vehicles. His job is to get those vehicles prepared and make sure they are running before the mail carriers need them. (Def.'s and Pl.'s Stmt. at ¶ ¶ 39-40). Plaintiff brings approximately four vehicles each day to the Livonia VMF. Plaintiff testified that he is " constantly moving from city to city. He travels " anywhere from Ann Arbor to Detroit," depending on where he need to pick up parts. (Def.'s and Pl.'s Stmt. at ¶ ¶ 43).

Plaintiff testified that in performing his job he would rarely speak with his supervisor, Robinson. That is, he would only speak to his supervisor about once a month regarding mileage, or if there was a problem or he needed to get a credit card. (Pl.'s Dep. at 15).

Gorilla Picture Posted At Livonia VMF In 2008

Plaintiff testified that, when he first started as a VOMA, there was a picture on the bulletin board in the lunchroom at the Livonia VMF that depicted a monkey and stated the words " Stupid mother-fucker." (Pl.'s Dep. at 42). Plaintiff testified that the picture was taken down at some point, after he " said something about it," but that the picture was up for " a long time." ( Id. ).

In opposition to Defendant's Motion for Summary Judgment, Plaintiff submitted an Affidavit that states that in " mid-2008, a gorilla picture was posted on the bulletin board in the hallway leading to the lunchroom and stayed up for at least a year. The gorilla picture," which he states is attached to his Affidavit, " depicts a gorilla scratching his head, with the caption 'Stupid Mother Fucker.'" The attachment to his Affidavit, however, actually has the words " Dumb Motherfucker" written on it. Plaintiff's Affidavit states that he found that picture highly offensive. He complained to Robinson about the picture but it was " not removed right away." (Pl.'s Aff. at 2).

Plaintiff perceived that picture to suggest that African-Americans are stupid gorillas and he construed the word " stupid" as " a code word for " Nigger.'" ( Id. ).

Stroshein and Plaintiff's 2008 Verbal Altercation

Stroshein, a white male, worked as a mechanic for the Postal Service from October 3, 1983, until he retired on March 8, 2012. He also worked as the lead mechanic at the Livonia VMF, but did not supervise Plaintiff. (Def.'s and Pl.'s Stmts. at ¶ ¶ 44-45).

Plaintiff contends that Stroshein " disrespected him" several times before an incident that occurred with Stroshein in October of 2008. (Pl.'s Dep. at 41). Plaintiff contends Stroshein called Plaintiff " stupid" on several occasions. (Def.'s and Pl.'s Stmt. at ¶ 60).

On October 22, 2008, Plaintiff traveled to the Livonia VMF in order to obtain parts to repair two broken-down vehicles. When he arrived, Plaintiff requested parts from Stroshein. Plaintiff testified that when he asked Stroshein for parts, he responded, " I don't do parts" and then called Karen the VOMA in Westland and said, " Karen, here, Talk to David Kea. I can't talk to stupid people. I don't do parts." (Pl.'s Dep. at 25-26). Plaintiff ended the call with Karen, telling her this had nothing to do with her. Plaintiff then said, " I've never disrespected you. I don't appreciate you calling me by a name." Stroshein responded, " Well, I don't do parts. I just can't deal with stupid people." Plaintiff then said " who do you think you are, calling me stupid?" Plaintiff testified

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that he was " getting hot" and said " Let's take this outside and discuss this like gentlemen because I ain't going to make it a circus out here. Let's step outside and we can discuss this like gentlemen." (Pl.'s Dep. at 27).

Robinson was not present during this incident. ( Id. at 28). But Robinson talked to Stroshein about his comment to Plaintiff that he " hates stupid people." (Def.'s and Pl.'s Stmt. at ¶ 53).

Robinson issued a Letter of Warning to Plaintiff based on his conduct on October 22, 2008. (Def.'s and Pl.'s Stmt. at ¶ 54). Plaintiff filed an EEO complaint regarding his letter of warning. (Def.'s and Pl.'s Stmt. at ¶ 59).

Robinson also issued a Notice of Suspension to Stroshein based on his conduct during this incident (Ex. 10 to Def.'s Br.) but Stroshein testified that it was reduced to a " working suspension." (Ex. 29 to Def.'s Br.; Ex. H to Pl.'s Br. at 49-50).

Ferguson's 2009 Remarks

Plaintiff and Ferguson are both African-American. By all accounts, Plaintiff and Ferguson do not get along.

Plaintiff's relationship with Ferguson was good when Plaintiff began working as a VOMA. Plaintiff's relationship with Ferguson deteriorated because Plaintiff " wouldn't stop speaking to Paul Guevara." According to Plaintiff, Ferguson told Plaintiff that if he speaks to Guevara, Plaintiff " can't speak to him." (Def.'s Stmt. and Pl.'s Stmt. at ¶ ¶ 63-64). Ferguson and Plaintiff did not talk to each other after December 2008. ( Id. at ¶ 68).

In April of 2009, Plaintiff went to the Livonia VMF to pick up a part. ( Id. at ¶ 70). While he was there, Plaintiff heard Ferguson state, in a loud voice while working on a car, " somebody's not checking them mother fuckin' oils." (Pl.'s Dep. at 38-39). Plaintiff thought Ferguson was referring to him and complained about it to Robinson. Robinson issued Ferguson a Letter of Warning for " conduct" stating that Ferguson made disparaging remarks to another employee (Plaintiff) and that the other employee left instead of confronting him. (Def.'s Stmt. and Pl.'s Stmt. at ¶ 74; see also Ex. 29 to Def.'s Br.).

Plaintiff Supports Guevara's EEO Case

A Hispanic VMF mechanic named Guevara filed an EEO complaint. On July 14, 2010, Plaintiff wrote a letter in support of Guevara's EEO complaint, discussing the Livonia VMF's alleged harassment of Guevara. (Def.'s Stmt. and Pl.'s Stmt. at ¶ 90; see also Ex. 14 to Def.'s Br.). In that letter, Plaintiff stated that he has encountered employees at Livonia harassing Guevara, a " Mexican employee," that profanity in the garage was a common occurrence, that Robinson had allowed such conduct, and that other employees would be in Robinson's office laughing and talking about Guevara. (Ex. 14 to Def.'s Br.).

Monkey Cartoon In 2010

Postal Employee Paul Guevara signed an Affidavit stating that there " was a chimpanzee cartoon posted on the stockroom wall at the Livonia VMF which had the caption, 'You can't fix stupid.' It was posted sometime in 2010 and remained up for several months at least." (Guevara Aff., Ex. J to Pl.'s Br., at ¶ 2). A copy of the cartoon is attached to Guevara's Affidavit.[1] Guevara states that, on several occasions he heard Stroshein call Plaintiff " stupid" to Plaintiff's face and behind Plaintiff's back.

Plaintiff's affidavit states that there was a " chimpanzee cartoon posted on the lunch room wall at the Livonia VMF which had

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the caption 'You Just can't fix stupid.'" (Pl.'s Aff. at ΒΆ 4). Plaintiff states that he " used the lunch room every day and had to pass by the picture every ...

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