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Avci v. Brennan

United States District Court, D. Massachusetts

January 16, 2018

Ulas Avci; Plaintiff,
v.
Megan L. Brennan, Postmaster General, United States Postal Service; Defendant.

          MEMORANDUM & ORDER

          NATHANIEL M. GORTON, UNITED STATES DISTRICT JUDGE

         This case involves allegations of employment discrimination and failure to ameliorate a hostile work environment. Plaintiff Ulas Avci (“Avci” or “plaintiff”), proceeding pro se, claims that Megan L. Brennan, Postmaster General, United States Postal Service (“Postal Service” or “defendant”) unlawfully discriminated against him on the basis of race and national origin when Avci was not hired as a Postal Support Employee Custodian. In addition, Avci alleges that, during the time he was employed by the Postal Service, he was subjected to a hostile work environment in violation of Title VII of the Civil Rights Act of 1964. Defendant's motion for summary judgment is currently pending before the Court.

         I. Background:

         Avci is a naturalized United States citizen who describes himself as “a Kurdish American from Turkey”. From sometime in 2010 until August, 2011, he was employed by the Postal Service as a “Casual - Maintenance Building Services Custodian” at the Brockton Processing and Distribution Center in Brockton, Massachusetts (“the Brockton facility”).[1] Avci resided in Brockton at that time.

         In July, 2011, plaintiff applied for the position of Postal Support Employee (“PSE”) Custodian in Brockton. He took the applicable assessment examination and obtained a score of 88/100, which placed him seventh out of seven applicants on defendant's hiring list.

         In August, 2011, the Postal Service terminated the employment of all Casual - Maintenance Building Services Custodians nationwide, including Mr. Avci. In September, 2011, plaintiff moved to Germany and ultimately returned to Turkey.

         The dispute in this case focuses on defendant's purported attempt to rehire plaintiff for the position of PSE Custodian in Brockton after the nationwide Casual Custodian lay-off.

         Avci provided his cell phone number on his employment application. Joseph A. Campbell, the Supervisor of Maintenance Operations at the Brockton facility, who was plaintiff's immediate supervisor while he was a Casual Custodian at that facility, attempted to reach plaintiff by telephone. Avci and the Postal Service disagree about what happened next. Defendant submits that Campbell attempted to contact plaintiff by calling him on his cell phone. Avci notes that Campbell did not call the number he listed on his application. Defendant's extension detail report confirms that Campbell did not dial plaintiff's number. As stated in defendant's memorandum in support of its motion for summary judgment, Campbell attempted to contact all of the applicants on the Hiring List by telephone and/or email.

         That is not quite Campbell's recollection. In the EEO Investigative Affidavit, Campbell stated that “all PSE candidate were contacted via phone/email.”

         Defendant also maintains that one of Avci's co-workers, Alan Voll, unsuccessfully attempted to contact him. Plaintiff insists that he did not receive a call and correctly notes that “there is no record of [the call] and the co-worker is not an official.”

         In March, 2012, Tony McGuire, defendant's Manager of Maintenance Operations for the Boston Processing and Distribution Center emailed plaintiff to schedule an interview for the PSE Custodian job. McGuire contends that Avci would have been hired as a PSE Custodian at the Brockton facility if Avci had completed the interview process. Defendant avers that Avci declined the interview although it provides no record of that communication. Plaintiff disputes that contention.

         Plaintiff claims he was discriminated against when the Postal Service intentionally avoided contacting him about the PSE Custodian interview because of his Turkish national origin. As plaintiff tells it, 1) he provided his phone number on the job application, 2) Campbell intentionally dialed the wrong phone number because of his bias against the plaintiff and 3) plaintiff's co-worker also failed to contact him about the interview for the same reason. Finally, Avci maintains that the interview email he received was a “deliberate effort by defendant to mislead the EEO investigation.” Avci was eligible for employment at the Brockton facility, not the Boston facility, he explains, so that email was merely a ruse.

         Procedural Background

         Plaintiff's second amended complaint contains a plethora of counts. They include: 1) civil rights violations under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq; 2) violations of EEOC guidelines; 3) civil rights violations under M.G.L. c. 151B; 4) criminal forgery under M.G.L. c. 267 § 1-5; 5) forgery under the Immigration and Nationality Act, 8 U.S.C. § 1324(c); 6) civil rights violations under the Civil Rights Act of 1991, 42 U.S.C. § 1981; 7) violations of USPS policy; 8) perjury under 18 U.S.C. § 1621; 9) an equal protection violation under the Fourteenth Amendment; 10) intentional infliction of emotional distress; 11) interference with employment and 12) equal rights violations under M.G.L. c. 93, § 102(a).

         A “document filed pro se is to be liberally construed.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted). Accordingly, reading the second amended complaint in the light most favorable to the plaintiff, the Court understands count I to constitute two claims: a claim for discrimination in hiring and a claim for hostile work environment.

         Pending before the Court is the Postal Service's motion for summary judgment.

         II. Motion for Summary Judgment

         The role of summary judgment is “to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Mesnick v. Gen. Elec. Co.,950 F.2d 816, 822 (1st Cir. 1991). The burden is on the moving party to show, through the pleadings, discovery and affidavits, “that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248 (1986). A genuine issue of material ...


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