IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KENT W. NEELY : CIVIL ACTION

:

v. :

:

UNITED STATES POSTAL SERVICE : NO. 03-6566

 MEMORANDUM AND ORDER

McLaughlin, J. December 12, 2007

The plaintiff, a former Postal Service employee, worked

at the Bulk Mail Center in Northeast Philadelphia. He was fired

in 2002 for the articulated reasons of chronic lateness and

absenteeism. He alleges that the United States Postal Service

discriminated against him on the basis of race and sex, in

violation of Title VII of the Civil Rights Act of 1964. The

plaintiff also claims that he was harassed and retaliated against

for his complaints about the discrimination, that the defendant

violated his rights under the Family and Medical Leave Act, and

that his rights under Merit Systems principles and his due

process rights have been violated. 

The defendant has moved for summary judgment. The

Court will grant summary judgment on the discrimination and

retaliation claims under Title VII because the plaintiff has not

stated a prima facie case of discrimination or retaliation. The

Court will grant summary judgment on the FMLA claim because the

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On a motion for summary judgment, a court must view the 1

evidence and draw reasonable inferences therefrom in the light

most favorable to the party opposing summary judgment. See,

e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 

Summary judgment is proper if the pleadings and other evidence on

the record “show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.” Fed. R. Civ. P. 56(c). 

2

plaintiff was not entitled to FMLA leave on the dates he claims

and because the decision of the Administrative Judge in the Merit

Systems Protection hearing was not arbitrary and capricious. The

Court will grant summary judgment on the plaintiff’s Merit

Systems, and due process claims because the decision of the

Administrative Judge in the Merit Systems Protection hearing was

not arbitrary and capricious. 

I. Facts

The Court views the record in the light most favorable

to the plaintiff. The following facts are undisputed. 1

The plaintiff, Kent Neely, is an African-American male. 

He worked for the defendant, the United States Postal Service

(“USPS”), at the Bulk Mail Center in Northeast Philadelphia,

starting in October 1994. The USPS issued the plaintiff a

proposed Notice of Removal on February 4, 2002, following a

fourteen-day suspension for failure to maintain a regular

schedule and a long history of discipline for absenteeism and

tardiness. Memorandum of Law in Support of Defendant’s Motion

Case 2:03-cv-06566-MAM Document 43 Filed 12/12/07 Page 2 of 37
Hereafter “Def’s. Br.” 2

3

for Summary Judgment Ex. 1, Neely Dep. Tr. at 16, 19; Ex. 30. 

2

The USPS uses a system of progressive discipline.

Discussions and letters of warning are followed by a seven-day

suspension, a fourteen-day suspension, and then removal. USPS

supervisors have a good deal of discretion in initiating

discipline. Clerks like the plaintiff report to a Supervisor of

Distribution Operations (“SDO”); each SDO reports to a Manager of

Distribution Operations (“MDO”). In each instance of discipline,

an SDO issues the discipline, and a higher level supervisor

reviews and concurs in any discipline greater than a letter of

warning. Def’s. Br. Ex. 3, Holmes Dep. Tr. at 61; Ex. 2, Bates

Dep. Tr. at 22, 28-30; Oral Arg. Tr. at 12-16, Sept. 27, 2007. 

The plaintiff frequently filed grievances after he

received discipline, which sometimes resulted in the discipline

being withdrawn or reduced on condition that he was not cited for

other discipline problems for a period of time. A chronology of

the plaintiff’s disciplinary history follows. 

On January 26, 1996, the plaintiff received a Letter of

Warning for failure to maintain a regular schedule issued by

Supervisor Bill Harper, a white male. Def’s. Br. Ex. 1, Neely

Dep. Tr. at 72-73. 

On May 3, 1997, the plaintiff received a Letter of

Warning for failure to maintain a regular schedule issued by

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Supervisor Howard Riley, an African-American male. The plaintiff

filed a grievance, and the parties agreed that the letter would

be reduced to a discussion if the plaintiff had fewer than three

unscheduled latenesses in a three-month period. Id. Ex. 6. 

On November 1, 1997, the plaintiff received another

Letter of Warning for failure to maintain a regular schedule

issued by Mr. Riley. The plaintiff filed a grievance, and the

settlement provided that any absences between the date of the

letter of warning and the date of settlement would not be used in

future discipline. Id. Ex. 8.

On June 30, 1998, the plaintiff received a seven-day

suspension for failure to maintain a regular schedule issued by

Supervisor Donna Hall, an African-American female. The plaintiff

filed a grievance that went through the arbitration process, and

the arbitrator upheld the discipline. Id. Ex. 10.

On January 22, 1999, the plaintiff received a fourteenday suspension for failure to maintain a regular schedule issued

by Supervisor Donna Hall, an African-American female, with Simona

Brickers, an African-American female, concurring. The plaintiff

filed a grievance and the suspension was rescinded. Id. Ex. 12.

On October 27, 1999, the plaintiff received a Letter of

Warning for failure to maintain a regular schedule issued by

Supervisor Maria Diaz, a Hispanic female. The plaintiff filed a

grievance; the settlement provided that the letter of warning

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would be reduced to a discussion in six months if not cited in

further discipline. Id. Ex. 14. 

On March 8, 2000, the plaintiff received a seven-day

suspension for failure to maintain a regular schedule issued by

Maria Diaz, with Joe Bates, a white male, concurring. The

plaintiff filed a grievance; the settlement provided that

suspension would be reduced to letter of warning in six months if

not cited in further discipline. Id. Ex. 16.

On September 14, 2000, the plaintiff received a

fourteen-day suspension for failure to maintain a regular

schedule issued by Maria Diaz, with Joe Bates concurring. The

plaintiff filed a grievance, and the settlement provided that

suspension would be expunged if the plaintiff became regular in

attendance and there was no further discipline prior to June 1,

2001. Id. Ex. 18. 

On January 13, 2001, the plaintiff received a fourteenday suspension for failure to maintain a regular schedule issued

by Supervisor Neel Holmes, an African-American male, with Eileen

Ansuini, a white female, concurring. The suspension listed

thirty-two absences or incidences of lateness between September

6, 2000, and January 3, 2001. The plaintiff filed a grievance,

and an arbitrator upheld the discipline at a grievance hearing. 

Id. Ex. 20. 

On June 7, 2001, the plaintiff filed a complaint with

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the EEOC, complaining that he had been discriminated against on

the basis of race when he received the January 13, 2001,

suspension. Administrative Judge Jose Perez held a hearing on

the EEO claim, and on August 21, 2002, found that the plaintiff

had not established a prima facie case of race discrimination. 

The plaintiff appealed the ruling, and the EEOC affirmed Judge

Perez’s decision on September 23, 2003. Id. Ex. 21; Ex. 23; Ex.

24. 

The plaintiff did not serve the 2001 fourteen-day

suspension until January 19, 2002, through January 31, 2002. He

was late for work on February 2, 2002, his first day back after

the suspension. During the year between when he received the

suspension and when he served the suspension, the plaintiff had

eighty-three unscheduled absences. Id. Ex. 27; Ex. 28. 

On February 4, 2002, supervisor Neel Holmes had a “day

in court” with the plaintiff to discuss his absences. Although

Mr. Holmes excused nine of the absences, he issued a Notice of

Proposed Removal based on sixteen other absences in the previous

four months. Ernestine Geary, an Acting Manager of Distribution

Operations and an African-American female, concurred. The

plaintiff responded through his union representative. On March

28, 2002, after considering the plaintiff’s response and his

disciplinary record, MDO Joe Bates issued the Letter of Decision

officially removing the plaintiff from the USPS. Id. Ex 30; Ex.

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Hereafter “Plf’s. Opp.” 3

7

31. 

The plaintiff appealed the removal decision to the

Merit Systems Protection Board (“MSPB”) on May 2, 2002. In the

appeal, he claimed that he: had been discriminated against on

the basis of race and sex, had been sexually harassed, had been

retaliated against for his harassment and discrimination

complaints, and had his Family and Medical Leave Act (“FMLA”)

rights abused. Administrative Judge Michael Rudisill held a

hearing on July 17, 2002, and on September 1, 2002, found that

the plaintiff was not entitled to FMLA leave and that he had not

established his claims of race discrimination or retaliation. 

The plaintiff appealed, and the MSPB denied his petition for

review. Id. Ex 32; Ex. 33; Ex. 34. 

The plaintiff’s race discrimination claims are founded

on his contention that two of his white colleagues at the Bulk

Mail Center, Joe Masterson and Ron Dever, who had similar or

worse discipline records, were treated more leniently. The USPS

fired Mr. Masterson after the plaintiff was removed; Mr. Dever

still works at the Bulk Mail Center. Plaintiff’s Memorandum of

Law in Opposition to Defendant’s Motion for Summary Judgment at

13; Ex. 4, Bates Dep. Tr. at 114. 

3

The facts supporting the plaintiff’s gender

discrimination and harassment claims are less clear. In January,

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2002, the plaintiff sent two letters to Alexander Lazaroff, a

Philadelphia District Manager at the USPS, complaining about

sexual harassment from two of his female supervisors, Maria Diaz

and Simona Brickers, during 1997 through 1999. In each letter

the plaintiff described a warm relationship with romantic

potential that ended when he informed each woman that he was not

interested in a romantic relationship. There is no suggestion

that any such romantic relationship was desired; neither woman

ever made a pass at the plaintiff or asked him out on a date. 

The plaintiff alleges that after he told them of his lack of

interest, each woman began to treat him poorly, issuing unfounded

disciplinary notices. Def’s. Br. Ex. 25; Ex. 26; Oral Arg. Tr.

at 31-32, Sept. 27, 2007. 

The letters form the basis of the plaintiff’s

harassment, gender discrimination, and retaliation claims. 

However, it does not appear that any of the supervisors involved

in the dismissal decision knew about the letters at the time of

the plaintiff’s removal. Rather, the plaintiff argues, the

inappropriate discipline issued by the two women played an

important role in the progressive discipline that led to his

dismissal. Diaz and Brickers put the plaintiff on “emergency

placement” and recommended that he receive a fitness for duty

evaluation, respectively. He contends that “Diaz and Brickers

engaged in a continuous effort to harass, discipline and

Case 2:03-cv-06566-MAM Document 43 Filed 12/12/07 Page 8 of 37
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ultimately set up a situation where Neely could be removed,

simply because he was not interested in any romantic relationship

with either of them.” Def’s. Br. Ex. 34 at 39-40; Plf’s. Opp. at

21; Ex. 1; Ex. 3. 

The plaintiff further grounds his retaliation claims in

his frequent grievances and complaints within the USPS and his

EEO filings, as well as complaints to outside officials. On

August 30, 1999, the plaintiff was placed on emergency unpaid

leave due to misconduct arising out of an altercation with a

supervisor and another clerk. He complained to Congressman Chaka

Fattah’s office, and one of Representative Fattah’s aides

interceded on his behalf. According to the aide, there was not

enough evidence to warrant a removal, and the plaintiff returned

to work after twenty-five days, on September 24, 1999. On

September 8, 1999, the plaintiff filed another EEO complaint,

followed by complaints to the USPS Ethical Conduct Officer, the

USPS Board of Governors, the United States Commission on Civil

Rights, his union, and the President of the United States. The

plaintiff contends that he received discipline within a “very

short period of time” after these complaints. He also cites an

e-mail from Joseph Marquis, a labor relations officer at the

USPS, to Joseph Bates and Simona Brickers, on January 4, 2000. 

The e-mail said “We need to deal with [Neely] every time and come

away with a progressive step. Not get frustrated and let it pass

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then try to nail [him] months later.” Def’s. Br. Ex. 25; Plf.’s

Opp. Ex. 13; Ex. 1; Ex. 14; Ex. 19. 

The plaintiff also claims that the USPS violated his

rights under the FMLA by denying him leave for certain days when

he was eligible. He suffered from chronic sinusitis and sleep

apnea, conditions protected under the FMLA, and had a doctor’s

certification that he would need leave. The USPS requested

recertification, which the plaintiff did not provide. Plf’s.

Opp. Ex. 41; Ex. 56; Ex. 57; Ex. 58; Ex. 60. 

II. Analysis

The plaintiff’s claims are: 1) race discrimination

under Title VII of the Civil Rights Act of 1964; 2) gender

discrimination under Title VII; 3) harassment on the basis of

race and/or gender under Title VII; 4) retaliation under Title

VII; 5) violations of his rights under the Family Medical Leave

Act; 6) discrimination on the basis of race and/or gender and

retaliation under merit systems principles; 7) retaliation for

whistleblowing under merit systems principles; and 8) violations

of due process under merit systems principles. 

The Court will grant summary judgment in favor of the

defendant on the discrimination, harassment, and retaliation

claims because the plaintiff has not made out a prima facie case

of discrimination or retaliation. The Court will grant summary

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judgment in favor of the defendant on the FMLA claims because the

plaintiff was not entitled to FMLA leave on the dates he cited

and the Administrative Judge’s decision as to one of the dates

was not arbitrary and capricious. The Court will grant summary

judgment in favor of the defendant on the remaining merit systems

claims because the Administrative Judge’s decision on these

issues was not arbitrary and capricious.

A. Count I: Race Discrimination

Count I of the complaint alleges that the defendant

violated Title VII by discriminating against the plaintiff on the

basis of his race. He claims that the USPS’s decision to fire

him was racially motivated, and that any non-racial reasons USPS

provides are false and pretextual. 

Title VII claim analysis is laid out in McDonnell

Douglas v. Green, 411 U.S. 792 (1973). The plaintiff must first

establish a prima facie case of discrimination. A plaintiff can

establish a prima facie case of race discrimination by showing

that: 1) he is a member of a protected class; 2) he was subject

to an adverse employment action; and 3) similarly situated

members of other racial classes were treated more favorably or

that other circumstances exist that give rise to an inference of

unlawful discrimination. Jones v. School Dist. of Phila., 198

F.3d 403, 410-12 (3d Cir. 1999).

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If the plaintiff can establish a prima facie case, then

the burden shifts to the defendant to articulate a legitimate,

nondiscriminatory reason for the challenged employment action. 

If the defendant can do so, then the burden shifts back to the

plaintiff to show that the defendant’s articulated reason is

actually a pretext for discrimination. Id. at 410. To defeat

summary judgment, the plaintiff must “point to some evidence,

direct or circumstantial, from which a factfinder could

reasonably either 1) disbelieve the employer’s articulated

legitimate reasons; or 2) believe that an invidious

discriminatory reason was more likely than not a motivating or

determinative cause of the employer’s action.” Fuentes v.

Perskie, 32 F.3d 759, 764 (3d Cir. 1994). Fuentes “places a

difficult burden on the plaintiff.” Kautz v. Met-Pro Corp., 412

F.3d 463, 467 (3d Cir. 2005). 

The parties do not dispute that the plaintiff has made

out the first two elements of a prima facie case of race

discrimination. The plaintiff is a member of a protected class

and he was subject to an adverse employment action when the USPS

removed him. They disagree as to whether the plaintiff raises an

inference of discrimination. The plaintiff argues that the USPS

treated white clerks who had lateness problems more favorably

than the plaintiff. The defendant contends that it removed the

plaintiff for chronic lateness and absenteeism, in accordance

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13

with its progressive discipline procedures, and that the white

employees cited by the plaintiff are not similarly situated. The

Court agrees that the two other employees are not similarly

situated and that the plaintiff’s situation does not give rise to

an inference of discrimination. 

The plaintiff contends that the USPS disciplined him

more severely than two white employees, Ronald Dever and Joseph

Masterson, whose conduct was worse than the plaintiff’s. Dever

and Masterson, like the plaintiff, were assigned to Tour Three at

the Bulk Mail Center. The three men had similar attendance

problems (lateness and absenteeism leading to letters of warning

and suspensions, some of which were settled). Masterson received

seven suspensions of seven or fourteen days between 1997 and

2002, and was removed from the USPS on April 13, 2004, after

failing to comply with a last chance agreement. Dever received

five suspensions of seven or fourteen days between 2000 and 2004. 

He still works at the USPS. The two men often missed multiple

hours of their shifts, or entire shifts. The plaintiff often

received discipline for being minutes late. Plf’s. Opp. Ex. 4,

Bates Dep. Tr. at 100.; Ex. 2, Neely Dep. Tr. at 110, 172; Ex.

50; Ex. 51; Ex. 52; Ex. 53.

The plaintiff argues that the three clerks are

similarly situated: they were all assigned to Tour Three at the

Bulk Mail Center, MDO Bates was the manager for all three men,

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Joseph Marquis was the labor relations representative responsible

for all BMC employees, and they had similar attendance problems. 

The plaintiff acknowledges that the three had different immediate

supervisors (SDOs) but contends that all significant disciplinary

actions required concurrence by an MDO. For the plaintiff,

Dever, and Masterson, that MDO was often Bates. Id. Ex. 4, Bates

Dep. Tr. at 100, 114; Ex. 20, Marquis Dep. Tr. at 29-34, 57-58;

Ex. 24; Ex. 46; Ex. 47.

The defendant argues that the plaintiff, Dever, and

Masterson were not similarly situated. In the USPS the SDO

initiates all discipline; the MDO is only involved as a

concurring official and cannot propose discipline. SDOs have a

great deal of discretion in initiating discipline and settling

complaints: there is no set rule at the USPS about how many

absences subject an employee to a particular level of discipline

or how much a settlement can reduce a disciplinary offense. Neel

Holmes, the plaintiff’s supervisor at the time of his fourteenday suspension and removal, was never the supervisor for Dever or

Masterson. In addition, MDO Bates was not the concurring

official on the plaintiff’s fourteen-day suspension or on his

removal. Bates did approve the notice of proposed removal after

it had been issued by Mr. Holmes and concurred in by Earnestine

Geary. Plf’s. Opp. Ex. 42. 

The defendant also contests the plaintiff’s

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characterization of Dever and Masterson’s disciplinary problems

as far more severe than the plaintiff’s. The plaintiff was

disciplined ten times between 1996 and 2002, Mr. Dever was

disciplined nine times between 1995 to 2004, and Mr. Masterson

was disciplined nine times between 1997 and 2004. Def’s. Br. Ex.

3, Holmes Dep. Tr. at 88; Ex. 1; Ex. 6; Ex. 8; Ex. 10; Ex. 12;

Ex. 14; Ex. 16; Ex. 18; Ex. 19; Ex. 20; Ex. 30; Ex. 31; Plf’s.

Br. Ex. 50; Ex. 51; Ex. 52. 

The analysis of whether someone is similarly situated

to the plaintiff “requires the court to undertake a factintensive inquiry on a case-by-case basis rather than in a

mechanistic and inflexible manner.” Monaco v. Am. Gen. Assurance

Co., 359 F.3d 296, 305 (3d Cir. 2004). In addition to job

function and seniority level, the Court must examine “other

factors relevant to the particular workplace.” Id. 

The identity and role of the supervisor is a key part

of this inquiry. Decisions made by different supervisors about

different employees are not usually comparable enough to raise an

inference of discrimination. Supervisors may exercise their

discretion differently. Taylor v. Procter & Gamble Dover Wipes,

184 F. Supp. 2d 402, 410 (D. Del 2002), aff’d 53 Fed. App’x 649

(3d Cir. 2002). See Radue v. Kimberly-Clark Corp., 219 F.3d 612,

617-18 (7th Cir. 2000) (observing that a determination whether

two employees are similarly situated “normally entails a showing

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that the two employees dealt with the same supervisor”); Ware v.

Frank, 1990 WL 14478 at *4 (E.D. Pa. Feb. 15, 1990) (“In order to

be similarly situated, other employees must have reported to the

same supervisor as the plaintiff, must have been subject to the

same standards governing performance evaluation and discipline,

and must have engaged in conduct similar to the plaintiff’s,

without such differentiating or mitigating circumstances that

would distinguish their conduct or the appropriate discipline for

it.” (quoting Mazzella v. RCA Global Comm’cns, Inc., 642 F. Supp.

1531, 1547 (S.D.N.Y 1986))). 

 The plaintiff argues that the identity of the

supervisor is not the dispositive factor; rather, it is the

identity of the decision maker. According to the plaintiff, MDO

Bates was the primary decision maker in the discipline for the

plaintiff, Dever, and Masterson. In the supervisory structure at

the USPS, however, direct supervisors have a great deal of

discretion in initiating discipline. Although an MDO must sign

off on severe discipline, that does not make the MDO the primary

decision maker; rather, it is the SDO who makes the primary

disciplinary decisions. Neel Holmes, the SDO who initiated both

the final suspension and the plaintiff’s removal, never served as

either Dever or Masterson’s supervisor. He never initiated

discipline against them and was never involved in the grievance

process with them. MDO Bates oversaw twelve SDOs, three mail

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flow controllers, and 250 employees on Tour 3 at the Bulk Mail

Center. His concurrence in some of the discipline received by

several Tour Three employees does not make him the primary

decision maker or supervisor for purposes of deciding whether

Dever and Masterson are similarly situated to the plaintiff. 

Def’s Br. Ex. 3, Holmes Dep. Tr. at 88; Ex. 2, Bates Dep. Tr. at

22. 

Because of the amount of discretion afforded to

supervisors in initiating discipline and the fact that Dever and

Masterson had different supervisors than the plaintiff, the

plaintiff has not shown that Dever and Masterson were similarly

situated to him. The discipline the three men received is not

“sufficiently comparable to raise an inference of

discrimination.” Taylor, 184 F. Supp. 2d at 410. 

The record has not shown that other circumstances exist

that give rise to an inference of unlawful discrimination. Jones

v. School Dist. of Phila., 198 F.3d 403, 410-11. The plaintiff

knew that coming to work on time was a job requirement, but he

frequently came in late or missed shifts without an excuse. At

the time he received his second fourteen-day suspension in

January of 2001, the plaintiff had received discipline for

failure to maintain a regular schedule at least eight times. The

plaintiff’s long and poor disciplinary history and the fact that

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Neel Holmes, the supervisor who issued the plaintiff’s 4

final suspension and removal orders, is African American. 

Although the fact that a supervisor is a member of the same

protected class as the plaintiff does not preclude a successful

discrimination claim, it substantially weakens any inference of

discrimination. See Rhodes v. Guiberson Oil Tools, 75 F.3d 989,

1002 (5th Cir. 1996) (finding that a decision maker who was the

same race as the plaintiff “considerably undermined the

probability that race was a factor”); Burch v., WDAS AM/FM, No.

Civ. A. 00-4582, 2002 WL 1471703 at *7 (E.D. Pa. June 28, 2002);

Dungee v. Northeast Foods, Inc., 940 F. Supp. 682, 688 n.3

(D.N.J. 1996).

18

his supervisor was also African American combine to defeat his 4

claim that his dismissal from the USPS gives rise to an inference

of race discrimination. Def’s. Br. Ex. 1, Neely Dep. Tr. at 77-

78. 

The plaintiff has not made out a prima facie case of

race discrimination, and the Court will grant summary judgment to

the defendant.

B. Count II: Gender Discrimination

The defendant has moved for summary judgment on the

plaintiff’s gender discrimination claim on two grounds: first,

that the plaintiff has failed to exhaust his administrative

remedies; and second, that the plaintiff fails to make out a

prima facie case of gender discrimination.

1. Exhaustion

The plaintiff’s complaint did not specify which events

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were the foundation of his gender discrimination claims. The

defendant’s summary judgment brief addressed both the plaintiff’s

suspension on January 13, 2001, and the plaintiff’s removal on

February 4, 2002. The defendant argued that the plaintiff had

not exhausted his remedies as to the 2001 suspension because he

complained only of race discrimination, not gender

discrimination, in his EEO complaint about the suspension. The

plaintiff clarified at oral argument that his gender

discrimination claim is based only on his removal in 2002, not on

the 2001 suspension. Therefore, the Court will look at the 2002

removal, but not the 2001 suspension, in considering summary

judgment on the plaintiff’s gender discrimination claims. Oral

Arg. Tr. at 27-29, Sept. 27, 2007; Plf’s. Opp. Ex. 35; Ex. 43;

Def’s. Br. Ex. 22; Def’s. Reply Br. at 4; 29 C.F.R. § 1614.105(b)

(2006). 

The plaintiff has filed a “mixed case” that involves an

adverse personnel action and alleges discrimination under Title

VII, which can be brought directly to the MSPB. 5 U.S.C. § 7702

(2000); Discenza v. England, Civ. No. 05-2660, 2007 WL 150477 at

*6 (D. N.J. Jan. 17, 2007). He could have pursued an EEO

complaint, but was not required to. Although Administrative

Judge Rudisill did not address the plaintiff’s gender

discrimination claims in his decision, the plaintiff did include

a reference to these claims in his initial complaint. He wrote

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that the documents he submitted were “evidence for my sex and

race discrimination. I have been the victim of unfair treatment

by a female manager and female supervisor just because I wished

not to pursue a romantic involvement. This has for years left me

open to other hostile actions by their friends, especially those

in management.” Plf’s. Br. Ex. 49; Ex. 43. 

The “parameters of the civil action” are set by the

scope of the investigation which can “reasonably be expected to

grow out of the charge of discrimination.” Doe v. Kohn Nast &

Graf, P.C., 866 F. Supp. 190, 196 (E.D. Pa. 1994) (quoting

Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir.

1976)). The plaintiff’s allegations of sex discrimination in his

MSPB complaint are minimal, but are enough to have exhausted his

administrative obligations.

2. Gender Discrimination

Like claims of race discrimination, gender

discrimination claims are analyzed under the McDonnell Douglas

burden-shifting framework. The plaintiff must set forth a prima

facie case of gender discrimination by establishing that he was

1) a member of a protected class; 2) qualified for the position;

and 3) that someone not in the protected class was treated more

favorably. Scheidemantle v. Slippery Rock Univ., 470 F.3d 535,

539 (3d. Cir. 2007). The burden then shifts to the defendant to

provide a legitimate, non-discriminatory reason for the adverse

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employment action. If the defendant meets that burden, the

plaintiff must demonstrate that the proffered reason is merely a

pretext for discrimination. Id.

The plaintiff does not allege that Neel Holmes,

Ernestine Geary, and Joseph Bates (the three supervisors involved

in issuing his removal notice) based his removal on gender

discrimination or harassed him because of his gender. Rather, he

claims that two of his previous supervisors, Simona Brickers and

Maria Diaz, discriminated against him on the basis of sex when

they issued him discipline, and that the USPS’s decision to

suspend and then remove the plaintiff was based upon the prior

progressive disciplinary notices issued by the two women. The

plaintiff claims that he had told Diaz and Brickers that he did

not want a romantic relationship with either of them, and that

his rejection spurred them both to issue unfounded discipline.

Plf’s. Opp. Ex. 2, Neely Dep. Tr. at 39, 42; Ex. 1; Ex. 3. 

The plaintiff cites several cases for the proposition

that the discriminatory motives of a co-worker or supervisor may

“taint” the ultimate decision made by someone else largely on the

input of that supervisor. Delli Santi v. CNA Ins. Cos., 88 F.3d

192, 200 (3d Cir. 1996); Abrams v. Lightolier, 50 F.3d 1204, 1214

(3d Cir. 1995). However, the plaintiff has not provided any

evidence suggesting that either Diaz or Brickers had any input at

all into the decision to remove him. Although the two women may

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22

have issued discipline against the plaintiff when they were his

supervisors, the plaintiff never denies being late or absent on

the days when he received discipline for failure to maintain a

regular schedule. The plaintiff has not established a prima

facie case for gender discrimination, nor has he provided any

evidence that undermines the defendant’s contention that the

plaintiff was fired for repeated lateness and absenteeism.

The Court grants summary judgment to the defendant on

gender discrimination. 

 

C. Count III: Harassment

In a claim related to his discrimination claims, the

plaintiff alleges that he was “subjected to severe and pervasive

harassment from his supervisors on the basis of his race and/or

gender” and that this harassment led to a hostile work

environment. Am. Compl. ¶¶ 33, 34. To state a claim under Title

VII for a hostile working environment, a plaintiff must establish

that: 1) he suffered intentional discrimination because of his

race or gender; 2) the discrimination was severe or pervasive; 3)

the discrimination detrimentally affected him; 4) the

discrimination would detrimentally affect a reasonable person in

that position; and 5) the existence of respondeat superior

liability. Jenson v. Potter, 435 F.3d 444, 449 (3d Cir. 2006). 

The plaintiff’s allegations are similar to those in his

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23

gender discrimination claims, namely that he was harassed by

Maria Diaz and Simona Brickers after he told each woman that he

did not want a romantic relationship with her. The plaintiff

claims that they issued numerous unfounded disciplines, carefully

timing the discipline so that a previous disciplinary series

could not be expunged. Although both Diaz and Brickers had been

assigned elsewhere in the Post Office, both women returned to

Tour Three just before the plaintiff was removed. The plaintiff

claims that he contacted Brickers and requested that Diaz not be

his supervisor, but that Brickers resfused. Plf’s. Opp. at 23;

Ex. 2, Neely Dep. Tr. at 284-85; Ex. 25; Ex. 26. 

The plaintiff also claims that he was subject to

harassment on the basis of race because white employees (Dever

and Masterson) received more lenient discipline than he did,

which created a hostile environment that had an adverse impact on

the terms and conditions of his employment. Id. at 25; Ex. 30.

The plaintiff has not made out a prima facie case of

harassment as to either gender or race. He cannot identify any

conduct “sufficiently severe or pervasive to alter the conditions

of [his] employment and create an abusive working environment.” 

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). He does

not allege harassment by either Brickers or Diaz after 1999, and

neither woman was his supervisor between 2000 and 2002. Their

connection with his removal is tenuous. The plaintiff’s claim

Case 2:03-cv-06566-MAM Document 43 Filed 12/12/07 Page 23 of 37
24

that he suffered harassment based on race is belied by the fact

that for the period surrounding his final suspension and removal

his supervisor was also African American. In addition, he cannot

show intentional discrimination based on either race or sex. 

Def’s. Br. Ex. 25; Ex. 26. 

The Court will grant summary judgment to the defendant

on the harassment claim. 

D. Count IV: Retaliation Under Title VII

Count IV of the complaint alleges that the defendant

retaliated against the plaintiff for filing grievances and

complaints inside and outside of the USPS and for his EEO claims. 

The McDonnell Douglas burden-shifting framework also applies to

the plaintiff’s retaliation claim. See Shellenberger v. Summit

Bancorp, 318 F.3d 183, 187 (3d Cir. 2003); Krouse v. Am.

Sterilizer Co., 126 F.3d 494, 500-01 (3d Cir. 1997). 

A plaintiff can make a prima facie case of retaliation

by showing that: 1) he engaged in protected activity; 2) he

suffered a materially adverse action (i.e., one that “well might

have dissuaded a reasonable worker from making or supporting a

charge of discrimination”); and 3) that there was a causal

connection between the protected activity and the adverse action. 

See Burlington N. & Santa Fe Ry. v. White, 126 S. Ct. 2405, 2415

(2006); Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001). 

Case 2:03-cv-06566-MAM Document 43 Filed 12/12/07 Page 24 of 37
25

The plaintiff claims that he was subjected to unfair

harassment and discipline and that he opposed these activities by

filing grievances and administrative complaints. The parties do

not dispute that some of the plaintiff’s complaints were

protected activities or that the removal was an adverse action. 

The defendant contends that the plaintiff cannot establish a

causal connection between the two, and that there is no evidence

that its legitimate, non-retaliatory reason for its actions is

pretext. The Court agrees.

To prove a causal connection, a plaintiff must show

that the protected activity had a “determinative effect” on the

employer’s decision to terminate him. Woodson v. Scott Paper

Co., 109 F.3d 913, 932 (3d Cir. 1997). Temporal proximity

between an employer’s knowledge of protected activity and an

adverse employment action can establish causation, but the

proximity must be “very close.” Clark County School Dist. v.

Breeden, 532 U.S. 268, 273 (2001). Even considering the evidence

in the light most favorable to the plaintiff, he has not shown

that his grievances and complaints had a determinative effect. 

The plaintiff claims that the temporal proximity

between his complaints and the defendant’s adverse actions shows

this causal connection. He cites many instances where a

complaint was followed by discipline: on June 1, 1999, the

plaintiff filed an EEO complaint and on August 30, 1999, Brickers

Case 2:03-cv-06566-MAM Document 43 Filed 12/12/07 Page 25 of 37
26

put him on emergency placement; in September of 1999 he filed EEO

and discrimination complaints and on October 27, 1999, he

received a letter of warning; in January of 2002 he complained of

sexual harassment and filed an EEO complaint about his suspension

and on February 4, 2002, he was fired. Plf’s Opp. Ex. 11; Ex.

10; Ex. 12; Ex. 14; Ex. 16; Ex. 1; Ex. 3; Ex. 24; Ex. 40.

The Court acknowledges that there are short spans of

time between the plaintiff’s protected activity and his receiving

discipline. However, it is hard to see how this would not be the

case, given the frequency of the plaintiff’s absences, the

frequency with which he received discipline, and the frequency

with which he filed grievances and complaints. The causation the

plaintiff establishes seems to run the other way: he was late,

his lateness prompted discipline, the discipline prompted a

complaint or a grievance. 

The plaintiff also cites an e-mail sent from labor

relations officer Joseph Marquis to MDOs Bates and Brickers on

January 4, 2000. Marquis wrote “We need to deal with [Neely]

every time and come away with a progressive step. Not get

frustrated and let it pass then try to nail [him] months later. 

I’d like to meet, talk and plan . . . .” Although the message

expresses frustration with the plaintiff, it is dated two years

before the plaintiff was fired and comes from a labor relations

officer who had nothing to do with initiating the discipline the

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27

plaintiff received and played no role in his removal. Plf’s.

Opp. Ex. 19; Ex. 4, Bates Dep. Tr. at 88; Ex. 20, Marquis Dep.

Tr. at 137; Ex. 21, Brickers Dep. Tr. at 50. 

Even if the plaintiff could establish a causal

connection between his complaints and his firing, he cannot

establish that the defendant’s reason for firing him was

pretextual: he never denies that he was late or absent on the

days cited in the letters of warning and suspensions. He has not

proffered evidence from which a finder of fact could reasonably

either disbelieve the employer’s reason or believe that an

invidious discriminatory reason was more likely the employer’s

motivation. Fuentes, 32 F.3d at 764. The defendant is therefore

entitled to summary judgment on the plaintiff’s retaliation

claim. 

E. Count V: Family and Medical Leave Act

The plaintiff claims that the defendant has interfered

with his rights under the Family and Medical Leave Act (“FMLA”)

by inappropriately denying him FMLA leave. He argues that the

USPS’s decision to terminate his employment was based in part on

at least one day –- January 7, 2002 –- when the plaintiff was

late but for which he was entitled to FMLA protection. In

addition, he claims that the defendant declined to provide him

with FMLA leave on certain dates when he was eligible: March 3,

Case 2:03-cv-06566-MAM Document 43 Filed 12/12/07 Page 27 of 37
28

2001, December 5, 2001, January 2, 2002, and January 7, 2002. 

The Court finds that the plaintiff’s claim for March 3, 2001, is

barred by the FMLA’s statute of limitations; that the plaintiff

was not entitled to FMLA leave on December 5, 2001, and January

2, 2002; and that Administrative Judge Rudisill’s MSPB decision

that the plaintiff was not entitled to FMLA leave on January 7,

2002, was not arbitrary and capricious. The Court grants summary

judgment to the defendant on Count V.

The plaintiff claims that the defendant interfered with

his FMLA rights. To assert an interference claim, a plaintiff

must show that: 1) he was entitled to FMLA leave; 2) that an

adverse action by the employer interfered with his right to take

that leave; and 3) that the employer’s adverse action was related

to the exercise or attempted exercise of his FMLA rights. 

Metzler v. Fed. Home Loan Bank of Topeka 464 F.3d 1164, 1180

(10th Cir. 2006). The plaintiff has not established that he was

entitled to FMLA leave. 

 The FMLA allows an employer to require medical

certification for an employee’s serious health condition, and

allows recertification under certain circumstances. The

plaintiff took FMLA leave intermittently for chronic sinusitis. 

Employers face some restrictions on requesting recertification

for FMLA leave taken intermittently: “[T]he employer may not

request recertification in less than the minimum period specified

Case 2:03-cv-06566-MAM Document 43 Filed 12/12/07 Page 28 of 37
The Supreme Court’s standard for willfulness is whether 5

“the employer either knew or showed reckless disregard for the

matter of whether its conduct was prohibited by the statute.” 

Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 113 (1985).

29

on the certification as necessary for such leave, unless . . . .

The employer receives information that casts doubt upon the

continuing validity of the certification.” 29 C.F.R. §

825.305(a), 825.308(b)(2), (c)(3) (2006); Plf’s. Opp. Ex. 60. 

The plaintiff requested FMLA leave on March 3, 2001. 

The statute of limitations for an FMLA claim is two years, unless

the violation is willful, in which case it is three years. 29

U.S.C. § 2617(c)(1), (c)(2) (2000). The plaintiff commenced this

case when he filed an in forma pauperis motion on December 5,

2003. Unless the defendant’s denial of the plaintiff’s FMLA

claim was willful, his claim as to that date is time barred. 

5

On March 17, 2001, the USPS sent the plaintiff a letter

notifying him that his FMLA certification was incomplete and that

he needed to provide medical certification within fifteen days. 

On April 5, 2001, the USPS issued a memorandum notifying the

plaintiff that he had failed to provide the medical certification

in the allotted time and that his FMLA request would be denied. 

The only medical certification in the record is dated July 27,

2001, four months after the plaintiff’s March 3, 2001, request. 

Although the plaintiff may be entitled to an inference that he

had a certification at that time, he is not entitled to an

Case 2:03-cv-06566-MAM Document 43 Filed 12/12/07 Page 29 of 37
30

inference that the defendant willfully violated the FMLA when it

denied his request for leave based on an incomplete medical

certification. Nothing in the record suggests that the defendant

acted knowingly or with reckless disregard when it denied the

request. The Court does not reach the question of whether the

defendant violated the plaintiff’s FMLA rights when it denied his

March 3, 2001, request for FMLA leave because the claim is time

barred. Plf’s. Opp. Ex. 56; Plf’s. Opp. Ex. 60.

The plaintiff also requested FMLA leave on December 5,

2001, and January 2, 2002. For each request he received a

memorandum from the defendant (on January 3, 2002, and January

24, 2002, respectively) informing him that he had been notified

of the requirement to provide medical certification within

fifteen days and that he had failed to do so, and that the

requested date was not FMLA protected. Plf’s. Opp. Ex. 57; Ex.

58. 

The plaintiff argues that the defendant was not

entitled to request recertification after the plaintiff had filed

his medical certification dated July 27, 2001. That

certification said that the plaintiff’s sinusitis was a chronic

condition that could incapacitate him for one to three days per

episode, with episodes occurring one to three times per month. 

The plaintiff would be reevaluated in twelve months and was

scheduled for routine examinations every three months. Plf’s.

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31

Opp. Ex. 60.

The FMLA does not allow an employer to request

recertification in less than the minimum period specified on the

certification. It is unclear whether the plaintiff is arguing

that this period is three months or twelve months, but the Court

does not need to reach this point, because an exception to the

minimum period applies when “the employer receives information

that casts doubt upon the continuing validity of the

certification.” 29 C.F.R. § 825.308(b)(2), (c)(3) (2006). The

defendant had information that cast doubt upon the continuing

validity of the plaintiff’s medical certification and was

entitled to request recertification, which the plaintiff refused

to provide. Therefore, the defendant acted appropriately when it

denied the plaintiff’s claims for FMLA leave on December 5, 2001,

and January 2, 2002. 

The plaintiff claimed FMLA leave on days when he was

late (the plaintiff was 2.7 hours late on December 5, 2001,

according to the USPS Absence Analysis). Nothing in the

plaintiff’s certification addressed potential tardiness; rather,

the certification said that the plaintiff could be incapacitated

for one to three days per episode. Robert Cantz, the FMLA

coordinator for the USPS, spoke with Mr. Neely and told him that

his medical certification was insufficient to provide

justification for FMLA leave when the plaintiff was late for work

Case 2:03-cv-06566-MAM Document 43 Filed 12/12/07 Page 31 of 37
The plaintiff contends that the USPS has acknowledged 6

error in its denial of FMLA leave on these dates because of a

settlement brokered by the Department of Labor after the

plaintiff’s removal. In the settlement, an attorney for the USPS

agreed to give the plaintiff FMLA leave for December 5, 2001,

January 2, 2002, and January 7, 2002. The Court is not bound by

this settlement. The Court has performed its own analysis of the

plaintiff’s claims and has found that the defendant was entitled

to deny FMLA leave on December 5, 2001, and January 2, 2002. 

32

and asked him to submit a recertification that covered tardiness.

The plaintiff refused. Def’s. Br. Ex. 28; Ex. 37, Cantz Dep. Tr.

at 47-48, 65; Plf’s Br. Ex. 60.

The plaintiff’s lateness was a chronic problem, and he

provided numerous explanations for his tardiness. Supervisor

Neel Holmes took notes from his “day in court” with the plaintiff

on February 4, 2002. The plaintiff provided the following

reasons for his tardiness over a five-month period; some of the

reasons are repeated multiple times: traffic, accident on I-95,

election day, religious services, doctor’s appointment, Army-Navy

game, and physical therapy. Def’s Br. Ex. 29. 

The plaintiff’s chronic lateness and the fact that his

medical certification did not address potential tardiness were

enough to cast doubt upon the continuing validity of the

plaintiff’s certification and entitle the defendant to ask for a

recertification. The plaintiff did not comply with the rules

governing FMLA leave, and therefore was not entitled to receive

FMLA leave for his absences on December 5, 2001, and January 2,

2002.6

Case 2:03-cv-06566-MAM Document 43 Filed 12/12/07 Page 32 of 37
Plf’s. Br. Ex. 41.

33

The plaintiff also claims that he was entitled to FMLA

leave on January 7, 2002. Administrative Judge Rudisill

addressed this claim in his Merit Systems Protection Board

decision. He held that the plaintiff “was not entitled to FMLA

leave and thus was properly charged with failing to maintain a

regular schedule, i.e., lateness, on January 7, 2002" and that

even assuming that the plaintiff did have FMLA leave on that

date, “the agency’s charge would still be sustained because the

appellant stipulated that he was late on the other 14 dates

listed in the charge.” Plf’s. Opp. Ex. 49, at 5.

The plaintiff argues that his current claim is one of

interference, rather than a direct claim of an FMLA violation,

and that Judge Rudisill did not address his interference claim. 

However, the plaintiff acknowledges that Judge Rudisill held

“that the Defendant did not improperly deny Plaintiff FMLA leave

on January 7.” Plf’s. Supp. Opp. Br. at 6. The plaintiff is not

entitled to two bites at the apple on his claim to FMLA leave on

January 7, 2002. Judge Rudisill’s MSPB decision governs this

claim.

The Court reviews the MSPB’s decision on this claim

under an arbitrary and capricious standard. Cohen v. Austin, 861

F. Supp. 340, 342 (E.D. Pa. 1994). Judge Rudisill thoroughly

reviewed the evidence in the record and evaluated the credibility

Case 2:03-cv-06566-MAM Document 43 Filed 12/12/07 Page 33 of 37
34

of the witnesses, finding that the plaintiff’s testimony about

his FMLA claims was “incredible” while the testimony of the USPS

witnesses was “straightforward” and “consistent with other record

evidence.” Plf’s. Br. Ex. 49, at 4. The plaintiff disagrees

with Judge Rudisill’s conclusions but does not dispute any of his

specific findings or cite to the administrative record to support

his assertion that Judge Rudisill is wrong. The Court upholds

Judge Rudisill’s MSPB decision as to the denial of the

plaintiff’s FMLA claim on January 7, 2002.

The Court grants summary judgment to the defendant on

the plaintiff’s FMLA claims. 

 

F. Counts VI, VII, and VIII: Discrimination and 

Retaliation under Merit Systems Principles and 

Violation of Due Process

In Counts 6 and 7 the plaintiff claims that he was

subject to discrimination and retaliation under Merit Systems

principles and the Civil Service Reform Act of 1978 (“CSRA”). 

The CSRA provides for judicial review of MSPB decisions. 5

U.S.C. § 7703 (2000). Where a plaintiff alleges discrimination,

he may seek relief in District Court, which must apply a de novo

standard of review to the MSPB decision on those claims. 5

U.S.C. § 7703(c) (2000). In a mixed case, where the plaintiff

also has non-discrimination claims, the Court reviews the MSPB

decision under an arbitrary, capricious, or abuse of discretion

Case 2:03-cv-06566-MAM Document 43 Filed 12/12/07 Page 34 of 37
35

standard. Cohen v. Austin, 861 F. Supp. 340, 342 (E.D. Pa.

1994). 

The Court has already granted summary judgment to the

defendant on the plaintiff’s race and gender discrimination

claims; no additional analysis is required here. Summary

judgment is hereby granted to the defendant in Count 6. 

In Count 7 the plaintiff claims that the USPS

retaliated against him for whistleblowing under Merit Systems

principles. He asserts that Administrative Judge Rudisill did

not consider two complaints –- an EEO complaint from June 2001,

and a complaint to the Department of Labor in December, 2002 –-

when he concluded that the plaintiff’s complaints did not play a

role in the removal decision. This Court has already considered

and rejected the plaintiff’s retaliation claims. The Court finds

that the Administrative Judge’s analysis of the plaintiff’s many

other complaints and his conclusion that the USPS would have

taken the same action even without the plaintiff’s complaints is

not arbitrary, capricious, or an abuse of discretion. Summary

judgment is granted to the defendants as to Count 7.

In Count 8 the plaintiff claims that his due process

rights were violated because he was not provided with enough

notice or opportunity to remedy his disciplinary situation. He

claims that the Administrative Judge failed to consider “relevant

factors” in ruling whether the plaintiff received due process,

Case 2:03-cv-06566-MAM Document 43 Filed 12/12/07 Page 35 of 37
36

such as whether the plaintiff had enough time after the

arbitrator’s decision upholding his January 13, 2001, suspension

to fix his absenteeism. Plf’s. Opp. at 43. The progressive

nature of the discipline the plaintiff received in his years with

the USPS means that the plaintiff had many opportunities to

reform. The Court finds that the Administrative Judge’s decision

that the plaintiff received due process is not arbitrary,

capricious, or an abuse of discretion. Summary judgment is

granted to the defendant as to Count 8.

An appropriate Order follows.

Case 2:03-cv-06566-MAM Document 43 Filed 12/12/07 Page 36 of 37
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KENT W. NEELY : CIVIL ACTION

:

v. :

:

UNITED STATES POSTAL SERVICE : NO. 03-6566

ORDER

AND NOW, this 12th day of December, 2007, upon

consideration of the defendant’s motion for summary judgment

(Docket No. 26), the plaintiff’s opposition, the defendant’s

reply, and supplementary briefing from both parties, and after

oral argument on September 27, 2007, IT IS HEREBY ORDERED that

the motion is GRANTED for the reasons stated in the accompanying

memorandum. 

Judgment is entered for the defendant and against the

plaintiff. This case is closed. 

BY THE COURT:

/s/ Mary A. McLaughlin

MARY A. McLAUGHLIN, J.

 

 

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