Morales-Vallellanes v. Potter

Filing 920100511

Opinion

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var WPFootnote1 = 'Of the Tenth Circuit, sitting by designation.\
'

var WPFootnote2 = 'Additional detail regarding Morales\'s allegations can be found\
in our prior opinion. See Morales I, 339 F.3d at 12-14.\
'

var WPFootnote3 = 'At the time, Morales had Sundays and Mondays off. Morales\
testified that at some point in 1996, he was given Saturday and\
Sundays off instead.\
'

var WPFootnote4 = '              The EEO complaint process provides an administrative\
forum for postal employees to resolve discrimination\
claims against the USPS. Postal workers alleging\
discrimination are required to file a "precomplaint" and\
consult with an EEO counselor. If the matter raised in\
the precomplaint is not resolved within the established\
30-day counseling period, the employee is authorized to\
file a formal EEO complaint. Once the formal complaint is\
filed, USPS is compelled to take action within a\
specified time period. After this period expires, the\
employee is permitted to file suit in United States\
District Court.\
\
Morales I, 339 F.3d at 13.\
'

var WPFootnote5 = 'Contrary to his initial allegations, Morales testified that this\
incident may have occurred in May 1996.\
'

var WPFootnote6 = 'Morales moved for panel reconsideration, which was denied.\
'

var WPFootnote7 = 'The district court did not address the merits of Potter\'s legal\
challenge, concluding instead that whether Morales suffered\
actionable discrimination or retaliation "involve[d] factual\
issues, as well as matters of credibility and weight of the\
evidence."\
'

var WPFootnote8 = 'Since that time, Morales has received approximately 66.33% of\
his USPS salary through the U.S. Department of Labor\'s Workers\'\
Compensation Program. He technically remains a USPS employee.\
'

var WPFootnote9 = 'With respect to Morales\'s claims of retaliation, we are mindful\
that "the significance of any given act of retaliation will often\
depend upon the particular circumstances" of each case. Burlington\
N. & Santa Fe Ry. v. White, 548 U.S. 53, 69 (2006)("Context\
matters."); see also Oncale v. Sundowner Offshore Servs., 523 U.S.\
81, 82 (1998)("The real social impact of workplace behavior often\
depends on a constellation of surrounding circumstances,\
expectations, and relationships which are not fully captured by a\
simple recitation of the words used or the physical acts\
performed."). Thus, we review the factual circumstances bearing on \
the legal significance of these actions in the light most favorable\
to the verdict. Cf. Bergeron, 560 F.3d at 6 n.1 (noting that "the\
existence of an adverse employment action may be a question for the\
jury when there is a dispute concerning the manner in which the\
action taken affected the plaintiff-employee"(citing Rivera-Jiménez\
v. Pierluisi, 362 F.3d 87, 94 (1st Cir. 2004)); see also Granfield\
v. CSX Transp.,Inc., __ F.3d __, 2010 U.S. App. LEXIS 5299, at *15\
(1st Cir. Mar. 12, 2010)(in considering the denial of a party\'s\
motion for judgment as a matter of law, appellate courts "examine\
the evidence presented to the jury, and all reasonable inferences\
that may be drawn from such evidence, in the light most favorable\
to the jury verdict").\
'

var WPFootnote10 = 'In any event, Morales\'s various contentions lack merit. Our\
independent review of Morales\'s submissions to the EEOC reveal that\
Morales did, in fact, include in a formal complaint the additional\
allegation that his tires were punctured on two occasions while his\
car was parked in the Caparra Heights station employee parking lot. \
At the trial, Morales put into evidence a sworn declaration from a\
co-worker, Samuel Cora-Rivera, which stated that Cora-Rivera had\
heard that Morales\'s tires were punctured by a Caparra Heights\
supervisor as an act of retaliation. On that basis, Morales\
misleadingly asserts that, because these incidents were included in\
a formal EEOC complaint and were proven to be retaliatory, we\
should consider these acts "adverse employment actions" for\
purposes of his retaliation claim. Morales fails to point out,\
however, that Cora-Rivera testified at the trial and unambiguosly\
retracted his statements in the declaration, stating that "[a]ll of\
the paragraphs [in the sworn statement] are not true." We do not\
consider this incident in our analysis of Morales\'s Title VII\
claims.\
'

var WPFootnote11 = 'The jury instructions provided, in relevant part:\
\
              Pursuant to the Opinion of the Court of Appeals for the\
First Circuit . . ., plaintiff Morales\'s Title VII cause\
of action is limited to those discrimination and\
retaliation allegations in his amended complaint that\
were previously the subject of a formal EEO complaint, to\
wit;\
              1.  Morales\' allegation that Job Bid # 2541417 was\
posted with Thursday/Sunday rest days rather\
than Saturday/Sunday rest days in retaliation\
for plaintiff\'s OSHA complaints;\
              2.  Morales allegation of sexual discrimination\
and retaliation arising on April 9, 1996\
incident [sic] in which plaintiff\'s duties and\
responsibilities were awarded to a female\
employee and he was given window clerk duties\
to perform;\
              3.  Morales\' allegation that the \'coffee and lunch\
break\'s policy\' was not applied in an equal\
and nondiscriminatory manner.\
See also Morales-Vallellanes v. U.S. Postal Serv., No. 97-2459,\
slip op. at 9 (D.P.R. Aug. 27, 2008)(post-trial order discussing\
limitations on claims submitted to the jury).\
'

var WPFootnote12 = 'We acknowledge that, with respect to the admission of evidence,\
it appears that the trial court was inexplicably lax in its\
enforcement of its pre-trial orders, and Potter routinely failed to\
object at trial. Nonetheless, contrary to Morales\'s contentions,\
we do not agree that Potter is therefore estopped from asserting\
that the jury award was limited to the three incidents we remanded,\
which were clearly delineated in the pre-trial orders and\
instructions to the jury.\
'

var WPFootnote13 = 'In Gómez-Pérez, the Supreme Court held that the Americans with\
Disabilities Act\'s (ADA) federal-sector provision, which "was\
patterned \'directly after\' Title VII\'s federal-sector\
discrimination ban," prohibited workplace retaliation through its\
substantive antidiscrimination prohibition. See 128 S. Ct. at\
1940. Potter thus maintains that Title VII\'s federal-sector\
provision bans workplace retaliation, if at all, only if it results\
in an adverse "personnel action[]," 42 U.S.C. § 2000e-16(a), which\
he contends means only those actions that affect employment or\
alter the conditions of the workplace. We do not reach this\
argument because we conclude that even under the Burlington\
Northern standard Morales has failed to prove he suffered any\
adverse employment action.\
'

var WPFootnote14 = 'While Morales received a letter of warning for taking an\
extended coffee break on March 22, 2006, the letter was removed\
from plaintiff\'s file just 5 days later. This preliminary action\
was insufficient to support a claim of discrimination. See 29\
C.F.R. § 1614.107(a)(5) (requiring agency to "dismiss" any\
administrative complaint that "is moot or alleges that a proposal\
to take a personnel action, or other preliminary step to taking a\
personnel action, is discriminatory").\
'

var WPFootnote15 = 'Specifically, Morales testified:\
\
              And, in front of everyone, [López] said that, because\
someone had placed an EEO[C complaint], now everybody had\
to punch in their timecards for every time they would go\
out on a break, when they left on break, and when they\
came back. Obviously, this was a policy that the\
employees did not like. And so, all of them . . . well,\
maybe not all of them, but most of them started to look\
at me bad.\
                   It was a very smart way of putting the employees\
against me.\
'

var WPFootnote16 = 'We emphasize that there was no evidence presented at trial that\
the rotation was permanent, or that he was divested of meaningful\
job responsibilities as a consequence. Cf. DeNovellis, 124 F.3d at\
306 (explaining that "five-month assignment [of plaintiff] to a\
financial position for which he had no background and the\
concomitant deprivation of meaningful duties constituted an adverse\
employment action within the meaning of Title VII"). Rather, his\
testimony demonstrates that he experienced the sort of temporary\
"reassignment that involves only minor changes in working\
conditions [which] normally does not constitute an adverse\
employment action." Marrero, 304 F.3d at 23.\
'

var WPFootnote17 = 'Other courts confronting roughly similar circumstances have come\
to the same conclusion. Thomas v. Potter, 202 Fed. Appx. 118, 119\
(7th Cir. 2006) (unpublished decision)(plaintiff\'s assertion that\
shift change was undesirable or inconvenient did not rise to the\
level of a materially adverse employment action under Burlington\
where the plaintiff did not assert and record did not contain\
evidence that the plaintiff had "a unique vulnerability that the\
Postal Service knew about and sought to exploit by changing his\
shift schedule"); Smith v. Potter, 629 F. Supp. 2d 644, 652 (S.D.\
Miss. 2009)(retaliation claim alleging that USPS "attempted to\
force [plaintiff] to return to working a schedule with off days of\
Friday and Saturday," which plaintiff had worked for preceding six\
years, did not constitute an adverse employment action under\
Burlington Northern even though plaintiff may have preferred\
Saturdays and Sundays off); Arredondo v. Flores, Civil Action No.\
L-05-191, 2008 U.S. Dist. LEXIS 77675, 2008 WL 4450311, *20 (S.D.\
Tex. Sept. 30, 2008) ("Even if the Burlington standard applies, a\
change in schedule, shift, and days off, in this setting, is\
insufficient to establish an adverse employment action").\
'

var WPFootnote18 = 'Even considering these incidents cumulatively, we still conclude\
that Morales has failed to establish that he suffered any adverse\
employment action within the meaning of Title VII\'s antiretaliation\
provision. See Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473,\
485 (5th Cir. 2008) (negative treatment, undesired transfer to\
another department, undesirable break schedule, and assignment of\
more arduous and dirty jobs are not adverse employment actions in\
the retaliation context).\
'

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