OPINION

THOMAS P. GRIESA, U.S.D.J.

Plaintiff pro se Nettie Christian is suing her former employer, the United States Postal Service ("USPS"). The named defendant is the current Postmaster General of the United States, William J. Henderson. Plaintiff claims that the USPS discriminated against her in the termination of her employment.

Plaintiff filed a prior action in this court, based on the early history of her employment with defendant. Christian v. Runyon, (94 Civ. 5907). The court granted in part defendant's motion to dismiss, 1998 WL 47836 (S.D.N.Y. Feb. 4 1998), and the case then settled. The present case concerns only the events of 1992 leading up to and including plaintiff's termination.

Defendant has moved for summary judgment in the present action. The pro se plaintiff was given a notice of what is required for responding to a summary judgment motion, and has now answered the motion.

The motion for summary judgment is granted and the action is dismissed.

Facts

The record on the current action for summary judgment consists of the pleadings, Rule 56.1 statements, sworn declarations, deposition testimony, as well as testimony, exhibits and affidavits submitted in administrative proceedings.

In early 1992 plaintiff, an African-American woman, was working at the USPS station on Church Street. She was assigned to the Cancellation Section, and her supervisor was Carolyn Alston, an African-American woman. The Tour Director, who is evidently responsible for job re-assignments, was Albert Cheskin, a white male.

On May 20, 1992 plaintiff was cited for misstating the time she had worked. Plaintiff argues that she did work an equivalent amount of time, and disputes having done anything wrong.

On June 3, 1992 plaintiff was cited for taking an extra ten minutes on her coffee break. Plaintiff argues that she had been given permission to take the extra time.

On June 5, 1992 plaintiff was cited for delaying the mail. The citation involves failing to keep up with the mail flow to be sorted through the Cancellation Section. Plaintiff argues that she was working as fast as she could.

On July 17, 1992 Alston issued plaintiff a seven-day suspension. The suspension was to run from August 3-10, 1992. Alston based the suspension on three charges: (1) "attempting to receive remuneration for services not performed" on May 20; (2) "abuse of coffee break" on June 3, and (3) "using dilatory tactics to delay the mail" on June 5. In addition, Alston noted that some of plaintiff's coworkers had signed a petition or letter complaining that plaintiff did not do her share of work in the Cancellation Section. Alston also relied in part on plaintiff's earlier work record, specifically a 1988 letter of warning for a "controversial injury claim" and a 1990 suspension.

Plaintiff vigorously disputed each and every reason cited for the July 17 suspension. She argued that the citations for time discrepancies were in error, and that one coworker who disliked her had convinced others to complain about her work. Plaintiff lodged administrative and union grievances to fight the July 17 suspension. She also filed at least one complaint with the Postal Service's Equal Employment Opportunity ("EEO") office.

At this time, plaintiff had several outstanding complaints with the EEO office. In response to the controversy over the July 17 suspension, Mitchell Sturman, the EEO manager in charge of processing complaints, took the unusual step of brokering a kind of settlement between plaintiff and the USPS.

For plaintiff's part, she consented to transfer to another station. She agreed to be transferred to the Morgan Station at the James A. Farley Building. On behalf of the USPS, Cheskin consented to cancel the July 17 suspension. Ordinarily, plaintiff would have been subject to the suspension even upon transferring to another station. By canceling the suspension, Cheskin intended to give plaintiff a fresh start. However, Cheskin also believed that the suspension could be reinstated if plaintiff did not accept an indefinite detail at Morgan.

Part of the reason for the outstanding EEO complaints derived from a longstanding dispute between plaintiff and the USPS over plaintiff's efforts to obtain a "seated position." Plaintiff had frequently requested such a position because of alleged physical problems. The USPS had not been willing to assign her a seated position, at least on a continuous basis.

Plaintiff claims that she agreed to the transfer to the Morgan Station because Sturman promised her a seated position there. Sturman denies having made such a promise. According to Sturman, his aim in arranging plaintiff's transfer was to enable his office to process plaintiff's five to six outstanding EEO complaints without the creation of additional problems.

On July 27, 1992 plaintiff arrived for work at the Morgan Station. She asked for a seated position. Thomas Richard Singleton, an African-American male, was the supervising manager at the Morgan Station. He asked if she was on light duty or limited duty, and when she replied that she was not, he told her he could not give her a seated position. Plaintiff explained that she was expecting a seated position based on an agreement, and Singleton asked for a copy of the agreement. Plaintiff did not have one, and after consulting with a tour supervisor and the union shop steward, Singleton denied plaintiff a seat. Another difficulty arose about the time plaintiff was entitled to leave or have a "wash-up," and plaintiff again asked to consult the union shop steward and another supervisor. As a result of these problems, Singleton directed her to leave the Morgan Station.

Plaintiff believes that Singleton's actions were based in part on bias against her, because he is married to Kathleen Totten, a Church Street USPS coworker. Plaintiff notes that Kathy Totten signed the petition complaining about plaintiff's work in the Cancellation Section, but that she also later signed a petition supporting plaintiff for union shop steward. In an affidavit Singleton wrote and signed for EEO proceedings on June 24, 1994, he denied acting out of bias. He explained that he asked plaintiff to leave based on her argumentativeness on the first day at work.

Plaintiff decided to return to the Church Street station until her seated accommodation at Morgan was worked out. The Morgan tour director informed Cheskin at Church Street of plaintiff's return. Because Cheskin believed plaintiff's conduct violated their agreement, he reinstated plaintiff's suspension, to begin on the original date of August 3.

On July 30 a supervisor informed plaintiff that she was on suspension to begin on August 3. Plaintiff replied that the suspension had been canceled. The supervisor checked and confirmed the suspension. The supervisor handed plaintiff a form for her to use in applying for unemployment benefits during the suspension period. Plaintiff asked for a written copy of the suspension being enforced against her, but the supervisor could not or at least did not provide such a document.

On August 3, 1992 — the day that plaintiff's suspension was to begin — plaintiff returned for work at the Church Street Station. Expecting some trouble, she brought her husband with her and asked him to wait at the entrance.

When plaintiff checked in, she was told to go to the operations manager. Plaintiff refused because the operations office had been extensively involved in her earlier grievances and complaints, and she did not think they would help her. She was also concerned that she would be punished for being late if, as she believed, she was supposed to return to work that day. She then spoke both with a union representative and Lieutenant Christine Roberts, the postal police officer in charge, who directed her to the work floor to speak with a USPS supervisor. Plaintiff therefore went to the work floor.

Plaintiff was met by supervisors Betty Dandridge and Israel Dear. Both informed her that she was suspended, that she could not work, and that she should leave the work floor. Plaintiff insisted on receiving written notice and asked for the union shop steward. She said she would wait for a copy of the suspension, and sat down on a stool to wait. The supervisors told her they would call for security if she did not agree to leave. Plaintiff refused. Dandridge and Dear called security.

At this point, the parties dispute exactly what happened.

Plaintiff states that she sat quietly and simply insisted on being given proper notice. She may have turned her back on the people in the room, to face a wall or pillar. Two postal police officers arrived, Officers Bradley Day and Johnnie Bolden. They suggested or asked that she leave, but did not order her to leave. She stayed on the stool waiting for a written copy of the suspension. Tour Director Cheskin was not present, but the acting Tour Director Cynthia Herbert arrived and also told plaintiff that she needed to leave. Plaintiff again refused. Herbert apparently did not know about any cancellation of the original suspension. Herbert called Lt. Roberts down to the floor. After Herbert repeatedly instructed plaintiff to leave and she repeatedly refused, Herbert directed the officers to remove plaintiff from the floor.

Plaintiff asserts that Roberts, the only female officer, twisted her arm behind her back and placed her in handcuffs, and that then Bolden jerked her off the stool. Plaintiff states that she began to cry out in pain. She claims that the officers threw her to the ground, and rather than having her walk to the elevator, forcibly dragged her across the floor, during which time she was shouting to let the officers know they were hurting her. Plaintiff further alleges that the officers were shouting obscenities at her. Plaintiff also asserts that the officers took her to the security office, threw her down into a chair and left her handcuffed for hours before issuing a desk appearance ticket for disorderly conduct.

Defendant disputes this account. Defendant's version is that plaintiff repeatedly refused to obey orders from supervisors to leave and that Postal Police Officers Day and Bolden were called down to the work floor. Defendant asserts that Officers Day and Bolden ordered plaintiff to leave the premises, and that plaintiff became belligerent and disruptive rather than sitting quietly while she waited for a copy of the suspension. Herbert was called to the floor, and ordered plaintiff to leave, but plaintiff refused. Herbert called for Lt. Roberts, who also ordered plaintiff to leave. When plaintiff refused to obey Lt. Roberts' order, Herbert directed the officers to remove plaintiff.

However, defendant asserts that when Lt. Roberts and Officer Bolden tried to escort plaintiff from the floor, plaintiff refused to walk, began to scream and tried to kick and hit the officers. Only at that point did the officers place her in handcuffs. Because plaintiff refused to walk to the elevator, Roberts and Bolden had to pick her up or carry her to it. Defendant flatly denies any officer used obscenities. Plaintiff was detained until a desk appearance ticket was issued. Plaintiff eventually left the premises.

On August 4, the next day, the USPS issued plaintiff an "emergency placement on off-duty status" effective August 10. Her supervisor, Carolyn Alston, attests that she put plaintiff on emergency off-duty status because of plaintiff's conduct August 3. Plaintiff was charged with disorderly conduct and failure to obey the postal police.

On August 26, 1992 Alston issued a Notice of Removal to plaintiff. Alston cited four charges to justify plaintiff's termination, all based on the events of August 3. The four charges were: (1) failing to follow instructions of supervisors, (2) failing to follow instructions of postal police officers; (3) violating the USPS code of ethical conduct regarding behavior offensive to other employees, and (4) violating the USPS code of ethical conduct regarding "criminal, dishonest, notoriously disgraceful or immoral conduct." In addition, Alston cited plaintiff's July 17 suspension, the 1988 "controversial injury claim," and the 1990 suspension. Plaintiff's termination was effective October 14, 1992.

Administrative Proceedings

On October 15, 1972 the parties appeared before administrative judge Sy Rayner for a hearing. The hearing did not address EEOC issues of discrimination, but was a pre-arbitration review of defendant's decision to issue plaintiff a notice of removal. In a one-page award dated October 29, 1992 ALJ Rayner found in favor of plaintiff. He overruled the USPS's determination to terminate plaintiff's employment. He found that "[t]he claimant had a right to return to work based on the information that she had. . . . Under the circumstances the claimant's conduct did not rise to the level of misconduct and she is not subject to disqualification."

The record does not indicate why ALJ Rayner's decision did not finally decide the issues. Neither party argues that this decision should be construed as binding on the court at this time. In any event, it is clear that plaintiff was not in fact reinstated and that ALJ Rayner's decision was not final. As already noted, ALJ Rayner apparently did not address any issues of discrimination.

The parties appeared before arbitrator Thomas F. Carey on December 3, 1993 and January 5, 1994. The hearing was closed April 29, 1994. The Arbitrator issued two opinions, one dated June 6, 1994 and the other dated June 8, 1994. In these proceedings, plaintiff was represented by union counsel. In the June 6, 1994 opinion, the Arbitrator held that the USPS had "some grounds" for Alston's July 17, 1992 suspension. The Arbitrator further found, however, that the USPS was procedurally bound by Cheskin's cancellation of the suspension, and that it could not be revived upon plaintiff's failure to stay at the Farley building. He ordered that plaintiff be made whole for the seven days of her suspension.

In the June 8, 1994 opinion the Arbitrator upheld the decision to terminate plaintiff. The Arbitrator found that the USPS acted properly in issuing the emergency suspension, and affirmed plaintiff's termination based on charges 1-3 in Alston's Notice of Removal. The Arbitrator did not find for charge 4, apparently because plaintiff was not ultimately charged with criminal conduct. In making this determination, the Arbitrator assessed the credibility of both parties' witnesses and summarized at length the testimony before him. He found that plaintiff's version of her removal was less credible, that she clearly knew how to exercise the proper route to remedy any wrongful employment action, and that her disobedience and other actions on August 3, 1992 warranted her termination.

At a time not clear in the record, plaintiff filed a complaint with the EEOC alleging discrimination on the basis of, among other events, the July 17 suspension, the August 3 ejection from Church Street and the October 14 termination. She alleged discrimination based on race, color, national origin, sex, reprisal, age and mental disability — in short, the same grounds plaintiff alleges in this lawsuit.

On February 19, 1998 the EEOC issued a final decision on the merits of plaintiff's discrimination claim. The EEOC found that defendant had not discriminated against plaintiff on any of the grounds she claimed. The relevant details of the EEOC decision are presented later in this opinion. The February 18, 1998 decision appended a notice to plaintiff of her right to sue in federal court.

Plaintiff filed this case on May 15, 1998. Defendant moved for summary judgment on June 30, 1999. Plaintiff was given extensions of time and a Rule 56 notice in accordance with the Second Circuit's decision in McPherson v. Coombe, 174 F.3d 276 (2d Cir. 1999). The motion is now fully submitted.

Discussion

In her complaint, plaintiff alleges that defendant "deprive[d] me of my Equal Employment Opportunity rights on the bases of race, color, national origin, sex, reprisal, age and mental disability." Defendant asserts that the court should construe this as an action for employment discrimination under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. However, plaintiff's claim of age discrimination should be construed as falling under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and her claim of discrimination on the basis of disability would fall under the Rehabilitation Act, 29 U.S.C. § 701 et seq., or the Americans with Disability Act, 42 U.S.C. § 12101 et seq.

Defendant has moved for summary judgment under Federal Rule of Civil Procedure 56. On a defendant's motion for summary judgment, the court views disputed facts in the light most favorable to the plaintiff. In addition, the court is obligated to liberally construe the pleadings and arguments of a pro se litigant. The defendant will prevail, however, "if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defect Found., 51 F.3d 14, 18 (2d Cir. 1995). In other words, even if there are disputed factual questions, summary judgment is appropriate if those factual disputes are immaterial or do not go to the essential elements of plaintiff's claim.

The court follows a three-step analysis to examine plaintiff's claims of discrimination. Plaintiff has stated a claim for five categories of discrimination (1) race, color or national origin, (2) gender, (3) age, (4) mental disability, and lastly (5) retaliation or reprisal. The first step in each case is to establish whether plaintiff has made out a prima facie case of discrimination. If plaintiff does so, discrimination is presumed. Next, the court determines if defendant can show a valid, non-discriminatory reason for the employment action. If defendant does this, the presumption of discrimination is eliminated, and the court determines whether plaintiff can show some reason to believe that defendant's explanation is a pretext for actual discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Jenkins v. Metropolitan Opera Assoc., Inc., 1999 WL 147745 at *5 (S.D.N.Y. March 18, 1999).

To make out a prima facie case, plaintiff must establish four elements: first, that she is a member of the category of persons the statute is designed to protect; second, that she was qualified for the job; third, that defendant terminated her; and fourth, that the defendant terminated her under circumstances giving rise to an inference of discrimination. See Stern v. Trustees of Columbia Univ., 131 F.3d 305, 311-12 (2d Cir. 1997).

The court will examine each of plaintiff's claims in light of the applicable legal standards.

Race

Plaintiff is African-American. She is therefore protected under Title VII. Defendant does not question plaintiff's qualifications. Plaintiff's employment was terminated. To complete her prima facie case, plaintiff need only show that there were circumstances that give rise to an inference that her termination was discriminatory.

Here, plaintiff's case fails. The record is devoid of any evidence of race-based animus by her supervisors or coworkers. Plaintiff's own papers and arguments do not suggest a racial motive behind her termination. There is no allegation of an event that concerned race. Defendant has submitted affidavits and testimony by plaintiff's supervisors who attest that her race was not a part of the decision to terminate plaintiff's employment and there is nothing in the record to contradict this.

Moreover, in reviewing the same facts the EEOC found that plaintiff's prima facie case failed "because she did not identify any individuals outside her protected groups who were treated more favorably under similar circumstances." While a federal court reviews a discrimination claim denied by the EEOC de novo and is not bound by that finding, the fact that the EEOC examined plaintiff's claims and found no discrimination is of some weight. See Jenkins, 1999 WL 147745 at *8.

Plaintiff has failed to make out a prima facie case of race discrimination.

Gender

Again, there is no question about any of the prima facie case elements except for the fourth, relating to discrimination.

Plaintiff's case again fails on this element. She has not shown any connection between defendant's treatment of her and her gender. None of her factual allegations, recounted in detail in this opinion, involve her gender in any way. The affidavits and testimony in the record from defendant's witnesses also attest to a lack of gender bias in the decision to terminate her, and these assertions are not contradicted. Here again, the EEOC ruled that plaintiff had not pointed to any similarly situated non-minority employees (including male employees) who were treated differently from her, and the court can consider the EEOC's opinion as part of the evidence. For these reasons, plaintiff has not made out a prima facie case for gender discrimination under Title VII.

Age

As to the first element of a prima facie case, plaintiff is protected under the ADEA because she was 40 years old in August-October 1992. See 29 U.S.C. § 631(a). It is worth noting, however, that the only place the court found plaintiff's birth date in the record is in a deposition defendant took in June 1999. There is no question about the second and third elements of a prima facie case.

The fourth element of plaintiff's prima facie case has not been met. In the substantial submissions from plaintiff, she has not put forward any suggestion that her age was the basis for her termination.

Mental Disability

In connection with the first element of a prima facie case the issue is whether plaintiff belongs to the class of persons that the applicable statutes protect — in other words, whether plaintiff was disabled.

Under both the ADA and the Rehabilitation Act, a condition is not a disability unless it substantially limits one or more major life activities. See 42 U.S.C. § 12102(2)(A); 29 U.S.C. § 705(20)(B)(i); Colwell v. Suffolk County Police Dept., 158 F.3d 635, 641-42 (2d cir. 1998), cert denied, 526 U.S. 1018 (1999). Plaintiff has wholly failed to plead or argue that her mental condition has affected her ability to perform any major life activity. Examining this question, the EEOC held that plaintiff's mental state did not rise to that level, and that her prima facie case failed as a result.

Moreover, moving from the first prima facie element to the fourth, the record fails to show any basis for a claim of discrimination based on plaintiff's emotional or mental state. As a result, plaintiff fails to make out a prima facie case of discrimination based on mental disability.

Retaliation

Plaintiff has demonstrated that she was in a class of protected persons by establishing that she engaged in protected EEO activity that was known to her employer. Again the second and third elements of a prima facie case are conceded. The fourth element plaintiff must establish for her prima facie case, is that there is some reason to believe defendant terminated her in order to retaliate against her protected pursuit of EEO complaints. See, e.g., Hold v. KMI-Continental, Inc., 95 F.3d 123,130 (2d Cir. 1996).

As to the fourth element, plaintiff has met the required showing of some reason to infer retaliation, although barely. At the time she was terminated, she had five or six outstanding EEO complaints. Her allegations are sufficient to make out a claim of retaliation for her protected activity.

The next question is whether defendant has presented a valid non-discriminatory explanation for the termination. The following discussion applies to all of plaintiff's discrimination claims, although the court has held that plaintiff has failed to present a prima facie case except as to the retaliation claim.

Defendant asserts that plaintiff was terminated because on August 3 she disobeyed the orders of her supervisors, disobeyed the orders of the postal police, and caused a disruptive scene in forcing officers to carry her out of the Church Street station. Defendant's evidence of these circumstances is not subject to any realistic challenge. Plaintiff herself appears to concede that at least one supervisor ordered her to leave, that the postal officers "requested" that she leave, and that in every case she refused. Moreover, the Arbitrator found that the USPS was justified in firing plaintiff, and the EEOC found no evidence of discrimination. While this court is not bound by the fact-finding of those tribunals, their findings are enough at this stage to erase any presumption of discrimination and meet defendant's burden. See, e.g. Becton v. Detroit Terminal of Consol. Freightways, 687 F.2d 140, 142 (6th Cir 1982); Williams v. Frank, 757 F. Supp. 112, 117 (D.Mass. 1991).

Now the burden shifts to plaintiff to show that defendant's explanation is a pretext for actual discrimination. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-07 (1993). Plaintiff makes no showing of pretext. Plaintiff's conclusory assertions of bad faith are not enough. Plaintiff accuses Mitchell Sturman and other EEO officers at Church Street of mishandling her claims, but the record shows considerable effort to investigate them fairly. The record before the court does not permit the inference that defendant, rather than being motivated by plaintiff's misconduct of August 3, was in fact motivated by a desire to punish her for her protected EEO activity — or by any other discriminatory motive.

Conclusion

Defendant's motion for summary judgment on plaintiff's claims of discrimination in her employment is granted.

SO ORDERED.