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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA MICHAEL RAFFAELE v. JOHN E. POTTER O'NEILL, J. MEMORANDUM Plaintiff Michael Raffaele, a United States Postal Service employee, filed a complaint against defendant Postmaster General John E. Potter alleging age and sex discrimination as well as retaliation. Defendant now moves for summary judgment in his favor. For the reasons that follow, I will grant defendant's motion. BACKGROUND During the period of the alleged discrimination, plaintiff worked as Postmaster of the Warminster Post Office in Warminster, Pennsylvania. Compl. at 3. Plaintiff has worked for the United States Postal Service since 1979 and has held his current position since October, 2008. Raffaele Dep. at 9, 13. Prior to his promotion to Postmaster, plaintiff worked as Officer in Charge of the Warminster Post Office.1 Id. at 13. In both capacities plaintiff oversaw the entire operation of the Warminster office and reported directly to the Post Office Operations Manager (POOM) for Group 3, which was part of the Philadelphia District. Id. at 16-17. During the period from October 12, 2007, through March 3, 2008, plaintiff submitted : : : : : CIVIL ACTION NO. 09-3622

January 5, 2012

The distinction between plaintiff's positions as Postmaster and OIC is purely administrative. When an office does not have a Postmaster, whether it be due to vacancy of the position, illness, retirement, or otherwise, the OIC serves the same duties as the Postmaster would. The position is temporary, but often results in being named Postmaster. Def.'s Mot. (Dkt. No. 25) at 4, n.3; Raffaele Dep. at 12-14.

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twelve hiring requests to fill vacancies within his office.2 Id. at 95. These requests were properly prepared and received by the District's Human Resources Management Board. Compl. at 4. Despite the number of requests, the Board only addressed plaintiff's requests once, at which time it approved all six requests under consideration. Def.'s Mot. (Dkt. No. 25), Ex. 3, Mins. of Feb. 6, 2008 Bd. Meeting. During this same period of time, the Board also discussed and approved some of the requests by Lisa Layman, Postmaster of the Norristown, Pennsylvania office, who is younger and female. Def.'s Mot. (Dkt. No. 25), Ex. 3, Mins. of Jan. 2, 2008 Bd. Meeting. According to plaintiff, the Board's prolonged delay in approving his hiring requests caused a staff shortage in his office that affected the terms and conditions of his employment. Compl. at 5. Plaintiff lists the ways that his job was affected through the staff shortages caused by the Board's delay in approving his staffing requests: (1) plaintiff had to waste time resubmitting hiring requests that had been ignored by the Board; (2) plaintiff had to operate with insufficient staff for more than one year; (3) plaintiff had to spend extra time managing his office because of the shortage in staff; (4) plaintiff had to address employee complaints related to the under-staffing; (5) plaintiff had to deal with employees' anger and frustration stemming from the under-staffing; (6) plaintiff had to struggle with an unproductive office; (7) the performance of the office suffered and affected plaintiff's merit pay; (8) stress in the office led to one of the workers committing suicide; and (9) plaintiff had to force employees to work overtime against their requests. Pl.'s Mem. at 20-21.

The parties disagree as to the number of hiring requests submitted. Defendant contends that only eight were submitted. Def.'s Mot. (Dkt. No. 25) at 6. The difference is likely due to methods of calculating hiring requests for several positions at the same time or repeated requests to fill the same positions. Regardless, the difference is inconsequential. -2-

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In addition to these negative effects on the working conditions at the office, plaintiff also claims that he received lower performance ratings resulting from defendant's discriminatory actions. Compl. at 6. In his own declaration, plaintiff notes that his performance appraisal rating in 2007 found him to be "Non Contributing" in the categories of "Total Operating Expenses," "Carriers out after 1700," "Motor Vehicle Accidents," and "Delivery Confirmation Scanning." Pl.'s Mem., Ex. I. (Plaintiff's declaration does not attach a copy of his 2007 performance appraisal rating). According to plaintiff, these negative ratings were the direct result of defendant's failure to approve his hiring requests. Id. Further, in his complaint, plaintiff claimed that the negative performance of his post office resulted in his merit and retirement pay being reduced. Compl. at 6. However, in his motion for summary judgment, defendant refutes this claim by showing that plaintiff was given 5.73% and 4% raises in total compensation in fiscal years 2007 and 2008, respectively. Def.'s Mot. (Dkt. No. 25) at15, citing Raffaele Dep. at 190-91. At his deposition, plaintiff admitted that in his over thirty years of employment at the USPS, he does not remember any other year in which he received a raise greater than 5%. Id. On November 27, 2007, plaintiff filed a complaint with the USPS Equal Employment Opportunity Office. Compl. at 6. While the complaint was pending, Lisa Jordan, a human resources manager, and Lisa Layman had a conversation regarding plaintiff's EEO complaint during which Jordan told Layman that plaintiff "did not know who he was dealing with." Layman Dep. at 12-13. In response to this conversation, plaintiff added a claim of reprisal to his EEO complaint. Compl. at 6. STANDARD OF REVIEW

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The party moving for summary judgment has the burden of demonstrating that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If the movant sustains its burden, the nonmovant must set forth facts demonstrating the existence of a genuine dispute. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A dispute as to a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. A fact is "material" if it might affect the outcome of the case under governing law. Id. The "existence of disputed issues of material fact should be ascertained by resolving all inferences, doubts and issues of credibility against" the movant. Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978) (citations and quotation marks omitted). To establish "that a fact cannot be or is genuinely disputed," a party must: (A) cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) show[ ] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1). The adverse party must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion and cannot survive by relying on unsupported assertions, conclusory allegations, or mere suspicions. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989). Summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477

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U.S. at 322. DISCUSSION I. Discrimination Claims Under ADEA and Title VII The Age Discrimination in Employment Act makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C.

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