The U.S. Court of Appeals, Second Circuit, issued a startling decision on June 16, 2010, in Jeunes v. Potter.  The Court upheld the removal of a postal employee who “admits that he used profanity during a verbal altercation with a co-worker on October 26, 2007, conduct clearly proscribed by the zero tolerance policy.”  The Court based its decision upon Connecticut District’s version of the zero tolerance policy, which bans “any type of vulgar language which would lead to a hostile workplace.”
 
I respectfully disagree with the Court.  The Connecticut District’s policy is an impermissively broad expansion of the Postal Service’s zero tolerance policy, originally set forth in the 1992 Joint Statement on Violence and Behavior in the Workplace.  Due to a lack of consistency in the application of this policy, the Postal Service announced on May 24, 2007, in Postal Bulletin 22207, that it was “Clarifying the meaning of the Postal Service’s zero tolerance policy” in the revised Publication 108 Threat Assessment Team Guide.  Vulgar language and profanity are not mentioned in either the Joint Statement or Publication 108.
 
Publication 108 states: “It is common for the term zero tolerance to be interpreted as resulting in a uniform and automatic response of dismissal for all reported incidents. Even though the meaning of zero tolerance is set out correctly in Postal Service policy, many employees focus on an absolutist interpretation without understanding the term in context….Discipline may be imposed, but it will be based on the nature and severity of the violation.”
 
Administrative Support Manual 315 prohibits subordinate organizational levels “clarifying,” supplementing (except as authorized in MI AS-310-78-3), or rewording policies or procedures from a higher level organization unless the instructions specifically direct or authorize this action.  Postal districts that “clarify,” supplement or reword the national zero tolerance policy as expressed in the 1992 Joint Statement on Violence and Behavior in the Workplace should be challenged.
 
Don Cheney
Auburn WA
 

PUB 108 Threat Assessment Team Guide

PUB 108 is revised March 2007

1992 Joint Statement on ViolenceJeunes was a rural postal carrier working in the New Fairfield Post Office in Connecticut. On October 26, 2007, as Jeunes was walking out the door of the Post Office to deliver mail, Thomas Nichols, one of Jeunes’ co-workers, called out to him. Nichols told Jeunes that a parcel had been left behind in a bin. In response, Jeunes snapped and began cursing at him and challenged him to a fight. The Postal Service conducted an investigation, interviewed the witnesses to the incident, and decided to terminate Jeunes’ employment. Jeunes filed suit alleging that the Postal Service discriminated against him on the basis of his race (African-American), color (black), and national origin (Haitian). The district court granted summary judgment in favor of the Postal Service and ruled that Jeunes could not prove discrimination because he could not prove that the Postal Service’s legitimate nondiscriminatory reason for terminating his employment was a pretext for discrimination. Specifically, the district court found that the Postal Service’s investigation showed that Jeunes was the instigator and aggressor in the dispute with Nichols, and that the Postal Service was entitled to rely on its investigation into the incident. Jeunes now appeals, claiming that the district court erred in granting summary judgment to the Postal Service.

JEUNES v. POTTER

JOSIER F. JEUNES, Plaintiff-Appellant,
v.
JOHN E. POTTER, POSTMASTER GENERAL, Defendant-Appellee.

No. 09-4279-cv.

United States Court of Appeals, Second Circuit.

June 16, 2010.

JOHN R. WILLIAMS, New Haven, Connecticut, Appearing for Appellant.

DAVID C. NELSON, Assistant United States Attorney (William J. Nardini, Assistant United States Attorney, on the brief), for Nora R. Dannehy, United States Attorney for the District of Connecticut, Hartford, Connecticut. Appearing for Appellee.

Present: REENA RAGGI, GERARD E. LYNCH, J. CLIFFORD WALLACE,[ 1 ] Circuit Judges.

SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court entered on October 1, 2009, is AFFIRMED.

Plaintiff Josier Jeunes, a black male of Haitian origin, appeals from an award of summary judgment in favor of his former employer, the United States Postal Service (“Postal Service”), on his Title VII claims of discriminatory discharge based on race and national origin. See 42 U.S.C. § 2000e et seq. We review a summary judgment award de novo, viewing the facts in the light most favorable to the non-moving party. See Havey v. Homebound Mortgage, Inc., 547 F.3d 158, 163 (2d Cir. 2008). While we will not uphold an award of summary judgment in favor of the Postal Service if the evidence is sufficient to permit a reasonable jury to find for Jeunes, he must point to more than a “scintilla” of supporting evidence to defeat summary judgment. Id. (internal quotation marks omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In applying these principles to this appeal, we assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision to affirm.

Consistent with the burden-shifting framework for analyzing Title VII claims established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), we note that the Postal Service does not dispute that Jeunes established a prima facie case of discrimination. Nor does Jeunes dispute that the Postal Service proffered a race-neutral reason for the challenged termination: violation of its established zero tolerance policy. See Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004) (holding that once plaintiff establishes prima facie case of discrimination, burden shifts to defendant to demonstrate legitimate, nondiscriminatory justification). Accordingly, the only issue on appeal is whether Jeunes has adduced evidence sufficient to permit a rational factfinder to conclude that the proffered justification was, in fact, a pretext for discrimination. See Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir. 2000) (stating that at step three of McDonnell Douglas analysis “plaintiff is given an opportunity to adduce admissible evidence that would be sufficient to permit a rational finder of fact to infer that the employer’s proffered reason is pretext for an impermissible motivation”). We conclude that he has not.

The Connecticut District of the Postal Service has a policy stating that (1) “there will be zero tolerance of acts or threats of violence in our workplace”; (2) such conduct “includes, but is not limited to: [a]ny act of physical violence[, a]ny actual, implied, or veiled threat made seriously or in jest[, and a]ny type of vulgar language which would lead to a hostile workplace”; and (3) “each and every act or threat of violence… will elicit an immediate and firm response that could, depending on the severity of the incident, include removal from the postal service.” February 26, 2007 Mem. Re: Acts and Threats of Violence in Workplace. Jeunes admits that he used profanity during a verbal altercation with co-worker Thomas Nichols on October 26, 2007, conduct clearly proscribed by the zero tolerance policy. Jeunes nevertheless insists that the Postal Service’s reliance on the policy is a pretext for unlawful discrimination.

Jeunes submits that pretext is evidenced by the Postal Service’s disparate treatment of Nichols, a white male who was not disciplined for his part in the altercation. Further, Jeunes contends that the Postal Service’s failure to interview minority employees who allegedly witnessed the incident as part of its investigation manifests pretext. We are not persuaded that these allegations are sufficient to raise a triable question of fact.

While Nichols was involved in the incident, the Postal Service found — and Jeunes admits — that the language used by Nichols during the incident was neither profane nor racially derogatory.[ 2 ] In addition, Jeunes points to no evidence establishing that Nichols’s disciplinary history was comparable to his own, which included a letter of warning, two seven-day paper suspensions, and a fourteen-day paper suspension for attendance issues, poor work performance, and/or failure to follow instructions. On this record, no reasonable factfinder could conclude that Jeunes and Nichols were similarly situated. See Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003) (“A plaintiff relying on disparate treatment evidence must show []he was similarly situated in all material respects to the individuals with whom []he seeks to compare [him]self.” (internal quotation marks omitted)); see also Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000). The Postal Service’s decision to terminate Jeunes but not to discipline Nichols is thus insufficient to raise a triable issue as to pretext.

No different conclusion is warranted by the Postal Service’s failure to interview minority employees whom Jeunes contends witnessed the October 2007 incident. Jeunes failed to identify such witnesses in response to an interrogatory, and he points to no evidence indicating that the Postal Service knew the witnesses’ identities but deliberately declined to interview them. Further, there is no competent evidence in the record indicating that the witnesses would provide materially different accounts of the incident than those provided by the employees whom the Postal Service did interview. For the foregoing reasons, the Postal Service’s failure to interview the minority employees who witnessed the October 2007 incident does not raise a triable issue of fact sufficient to preclude summary judgment.

We have considered Jeunes’s remaining arguments on appeal and conclude that they are without merit. Accordingly, the October 1, 2009 judgment of the district court is AFFIRMED.