Adrienne P. Clayton v. John E. Potter

Filing 53

STATEMENT OF UNCONTROVERTEDFACTS AND CONCLUSIONS OF LAW signed by Judge Manuel L. Real. (pj)

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ANDRÉ BIROTTE JR. United States Attorney LEON W. WEIDMAN Assistant United States Attorney Chief, Civil Division GWENDOLYN M. GAMBLE (CA Bar No. 143267) Assistant United States Attorney Room 7516, Federal Building 300 North Los Angeles Street Los Angeles, California 90012 Email: [e-mail] Telephone: [phone] Fax: [phone] Attorneys for Defendant UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

ADRIENNE P. CLAYTON, Plaintiff, v. JOHN E. POTTER, Defendant.

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No. CV 09-6479 R (VBKx) STATEMENT OF UNCONTROVERTED

FACTS AND CONCLUSIONS OF LAW

Hearing Date: Time:

June 2, 2010 10:00 a.m.

Honorable Manuel L. Real

Defendant's Motion for Summary Judgment having come on for hearing, and the Court having considered the pleadings, evidence presented, and memorandum of points and authorities, the Court makes the following Findings of Fact and Conclusions of Law:

I.

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FINDINGS OF FACT On approximately November 7, 2006 a vacancy announcement was

issued for the position of Supervisor, Postal Police for Tour 1 listing the hours as 9:15 pm to 6:00 a.m. Evidentiary Appendix The position

Declaration of Nichole Cooper ("Cooper Decl.") at ¶ 5.1

involved supervising Tour 1 Postal Police officers engaged in the protection of mail, life, and postal property at postal facilities and surrounding areas and providing backup to officers for non-routine and emergency situations. 2. Id.

In December 2006 a review panel for the Supervisor position

was comprised of Assistant Inspector in Charge Nichole Cooper (African American female), Los Angeles Division Postal Police Manager Karen Parks (African American female), and Assistant Inspector in Charge San Diego Field Office Robert Malaby (Asian Hispanic male). Cooper Decl. ¶ 6. 3. The panel reviewed applications for the position from four

people, including the Successful Applicant (Hispanic female), an unsuccessful applicant (Caucasian male), another unsuccessful

applicant ( African American male), and plaintiff Adrienne Clayton (African American female). Cooper Decl. ¶ 7. Each of the four

applicants submitted a P.S. Form 991 Application and were interviewed by the panel on December 7, 2006. 4. Id.

The panel believed the Successful Applicant was the best

choice for the position. Cooper Decl. ¶ 8; Declaration of Karen Parks

Defendant's evidentiary references are contained in a separate Evidentiary Appendix filed concurrently with defendant's Motion for Summary Judgment. 2

1

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("Parks Decl.") ¶ 7. 5. The vacancy was for a Tour 1 supervisor position and the

Successful Applicant was familiar with the Tour 1 postal police officers. Cooper Decl. ¶ 8; Parks Decl. ¶ 7. The Successful

Applicant had primarily worked on Tour 1 (approximately 9:30 p.m. to 6:00 a.m.) during her career as a Postal Police Officer including serving as an Acting Supervisor since 2004. Decl. ¶ 7. 6. The panel believed that the Successful Applicant had a good Cooper Decl. ¶ 8; Parks

rapport and familiarity with the Tour 1 Postal Police Officers. Cooper Decl. ¶ 8; Parks Decl. ¶ 7. They also believed that the

Successful Applicant had good interpersonal skills that would assist her as a Supervisor. 7. The panel Cooper Decl. ¶ 8; Parks Decl. ¶ 7. also considered the Successful Applicant's

familiarity and good working relationship with the Tour 1 Officers to be a benefit because morale had been low due to, among other things, a loss of approximately 25-30 Postal Police Officer positions in 2006, the removal of the prior Captain, and other supervisors being out on leave. 8. Cooper Decl. ¶ 8; Parks Decl. ¶ 7. Plaintiff had primarily worked on Tour 3 (approximately 2:00

p.m. to 10:00 p.m.) during her career as a Postal Police Officer. Cooper Decl. ¶ 9; Parks Decl. ¶ 8. 9. After the interviews, the panel's recommendation of the Applicant was conveyed to Inspector in Charge Oscar

Successful

Villanueva and in December 2006 he selected her for the position. Cooper Decl. ¶ 10. 10. On February 11, 2007, plaintiff was in a motor vehicle 3

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accident while on duty. 11. A Postal

Parks Decl. ¶ 12. employee who suffers job related

Service

disabilities is eligible to receive continuation of Postal Service pay ("Continuation of Pay") rather than using sick leave or leave without pay, from the 4th day of the period of the disability up to a maximum of 45 calendar days. Id. The USPS Employee and Labor Relations

Manual ("ELM") § 545.724, provides that to be eligible to receive Continuation of Pay the employee must, among other things, 1)complete and submit to the Postal Service a Department of Labor Office of Workers Compensation ("DOL OWCP") Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation (Form CA-1), and 2) submit medical evidence from the attending physician within 10 calendar days after filing the claim for Continuation of Pay, showing that a disability resulted from the claimed traumatic injury and indicating when the employee can return to work. 12. Id.

On approximately March 5, 2007, Postal Police Manager Karen

Parks received plaintiff's CA-1 Form through inter-office mail. Parks Decl. ¶ 14. When she received the CA-1 Form it had a signature from

plaintiff dated February 14, 2007, a signature from Lt. Hawkins dated February 14, 2007, and a witness statement signature from Postal Police Officer Amanda Culbert dated February 23, 2007. Id. No

medical documentation accompanied the CA-1 Form when she received it. Id. 13. After receiving the CA-1 form Manager Parks contacted the

Postal Service Injury Compensation Office in Washington, D.C. and determined that the form had not yet been forwarded to them. Decl. ¶ 15. Parks

Manager Parks forwarded the CA-1 Form to the Injury 4

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Compensation office on approximately March 5 or 6th, 2007. 14.

Id.

On approximately March 12, 2007, Manager Parks received

medical documentation regarding Ms. Clayton in the form of after care emergency room discharge instructions and forwarded that to Lisa Armstrong at the Postal Service Injury Compensation Office in

Washington, D.C.

Parks Decl. ¶ 16.

Based on her discussion with Ms.

Armstrong, Parks believed that without proper medical documentation this was insufficient to authorize continuation of pay because the documents were after-care discharge instructions and not an actual diagnosis of the injury. 15. Id.

On approximately March 22, 2207, plaintiff faxed to Parks

and Ms. Armstrong additional medical documentation. Id. Thereafter, based on a conversation with Ms. Armstrong, Parks believed that the Postal Service was now authorized to pay plaintiff Continuation of Pay and to do a pay adjustment to change her sick leave to Continuation of Pay for the 4th through 45th day period after the February 11th accident (i.e. the period from February 15th to March 28th 2007). Parks Decl. ¶ 17. 16. Even prior to the Continuation of Pay being authorized,

plaintiff continued to receive pay in February and March 2007 from the Postal Service based on sick leave being used. 17. Id.

The pay adjustment was done in March 2007 and the sick leave

plaintiff had used prior to the authorization to use Continuation of Pay was restored by April 2007. 18. Id.

After the February 2007 car accident, plaintiff returned to

work in approximately April 2008. Declaration of Mahmoud Shooshtari ("Shooshtari Decl.") ¶ 3 Sergeant 5 Shooshtari was one of the

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Supervisors at that time. 19.

Id.

Plaintiff asked about the location of her badge which is an Id. Id.

access card to the facility with an employee's picture on it. Sergeant Shooshtari told plaintiff that he would look into this. 20.

Because he did not know where the badge was, he asked

Manager Karen Parks about it and said that Ms. Clayton was looking for her badge. Id. Manager Parks did not know where Ms. Clayton's badge

was, but recalled that there was a Postal Service plastic tub that had items such as her uniform, boots, and duty belt. 21. Id.

Sergeant Shooshtari thought the badge might be in the tub Id. He obtained the plastic tub and gave it to

with her belongings.

Ms. Clayton on April 15, 2008. Id. 22. Any statement of Uncontroverted facts erroneously designated

as a conclusion of law is incorporated herein. II. CONCLUSIONS OF LAW To withstand summary judgment, the non-moving party must show that there are genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party. If the factual context makes the non-moving

party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477

U.S. 317, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Matshushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Cal.Arch. Bldg. 6

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Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir. 1987), cert. denied, 484 U.S. 1006 (1988). The burden of proof in an employment discrimination case is: (1) plaintiff must carry the initial burden of proof by

establishing a prima facie case of discrimination; (2) If plaintiff successfully establishes a prima facie case, the burden shifts to defendant to articulate a legitimate, nondiscriminatory explanation for the action taken; and (3) If defendant articulates a legitimate nondiscriminatory explanation2, the burden shifts back to plaintiff to prove, by a preponderance of the evidence, that the defendant intentionally discriminated against him and accordingly that the explanation articulated by defendant is actually a pretext or ruse for discrimination. forward remains with plaintiff. St. Mary's Honor Center, et al., v. Hicks, 509 U.S. 502, 125 L.Ed.2d 407, 417, 113 S.Ct. 2742 (1993); U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 714-15, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 67 L.ED.2d 207, 101 S.Ct. 1089 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d. 668 (1973). The burden of going

Should plaintiff succeed in establishing a prima facie case, this creates a presumption of unlawful discrimination, and defendant must then articulate a legitimate nondiscriminatory reason for the challenged action. To carry its burden of production, defendant must "introduce evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action." St. Mary's Honor Center, et al., v. Hicks, 509 U.S. 502, 125 L.Ed.2d 407, 417, 113 S.Ct. 2742 (1993). Defendant does not have a burden of proof on this issue, rather defendant merely has the burden of producing such a reason. Id. If defendant carries this burden, "the McDonnell Douglas framework -with its presumptions and burdens -- is no longer relevant." Id.; U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 714-15, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983). 7

2

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Defendant is entitled to judgment because plaintiff cannot establish a prima facie case of disparate treatment based on race. Plaintiff alleges that she was discriminated against based on race (African American) when she was not selected for the Supervisor position in December 2006. To establish a prima facie case of

disparate treatment discrimination plaintiff must show that: 1) he belongs to a protected class, 2) he was performing according to his employer's legitimate expectations, 3) he suffered an adverse

employment action, and 4) similarly situated persons outside the protected class were treated more favorably. Godwin v. Hunt Wesson,

Inc., 150 F.3d 1217, 1220 (9th Cir. 1998); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002); Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 672 (9th Cir. 1988). Plaintiff has the burden of establishing a prima facie case of disparate treatment based on race. However, two of the three review

panel members (Nichole Cooper and Karen Parks) were African American. Moreover, the selecting official Oscar Villanueva had previously promoted African Americans when he selected Nichole Cooper (African American, female) for the position of Assistant INC for the Los Angeles Division and Karen Parks (African American, female) for a June 2005 detail as Acting Manager of the Postal Police Security Force, Los Angeles Division. Declaration of Oscar Villanueva at ¶ 3. Defendant

is entitled to summary judgment on the disparate treatment claim. Defendant is entitled to judgment because plaintiff can not establish a prima facie case of retaliation. Title VII prohibits

retaliation against an employee for opposing a practice prohibited under Title VII or participating in a Title VII investigation, hearing 8

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or proceeding.

42 U.S.C. §2000c-3(a).

The prima facie elements of

a retaliation case are: 1) plaintiff engaged in protected activity; 2) the agency subjected him to an adverse action; and 3) there was a causal connection between the protected activity and the adverse action. Yartzoff Villiarimo v. Aloha Island Air, Inc., 281 F.3d at 1064; v. Thomas, a causal 809 F.2d 1371, 1375 (9th Cir. the 1987). burden To of

demonstrate

connection,

plaintiff

bears

presenting "evidence sufficient to raise the inference that [the] protected activity was the likely reason for the adverse action." Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982); Miller v. Fairchild Industries, Inc., 797 F.2d 727, 731 (9th Cir. 1986). Plaintiff contends that due to retaliation for protected EEO activity she was not selected for the Supervisor Position, her Continuation of Pay was delayed, and items were returned to her in April 2008. Plaintiff can not establish a causal connection between Clark County

the alleged adverse action and protected EEO activity.

School Dist. V. Breeden, 532 U.S. 268, 273 (2001) (action taken 20 months later does not establish an inference of causation, the temporal proximity must be very close); Villiarimo, 281 F.3d at 1065 (an 18 month lapse does not establish an inference of causation). Moreover, timing alone would not necessarily show causation as there must be evidence that "but for" the protected activity there would have been no adverse action. Villiarimo, supra, 281 F.3d at 1064-1065. Further, plaintiff can not establish that a delay in processing the Continuation of Pay claim or the return of items constitutes an adverse employment action. Accordingly, defendant is entitled to

summary judgment on the retaliation claim. 9

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Plaintiff cannot rebut defendant's legitimate reasons for its actions. Even assuming arguendo that plaintiff could establish a

prima facie case of discrimination based on race or retaliation, summary judgment should still be granted in defendant's favor.

Defendant has articulated a legitimate non-discriminatory reason regarding its actions. Accordingly, plaintiff can not establish that the articulated reason is pretextual. Villiarimo, 281 F.3d at 1062-

1063 (summary judgment affirmed where employee failed to present evidence that employer did not honestly believe its proffered reasons for termination). Plaintiff has the ultimate burden of persuasion, and must offer specific and significantly probative evidence that defendant's

intentional purpose was to take action against him because of his national origin, disability, or in retaliation for protected activity. Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2111-2112 (2000) (the ultimate question in every employment discrimination case is whether the plaintiff was the victim of intentional

discrimination); St. Mary's, supra, 125 L.Ed.2d at 422; Aikens, supra, 460 U.S. at 714-15 (the ultimate factual inquiry is whether the defendant intentionally discriminated against plaintiff). Plaintiff

must do more than simply make out a prima facie case and attack the credibility of defendant's witnesses. Id.

Plaintiff has no direct evidence, nor any specific substantive circumstantial evidence that defendant's actions were the result of intentional discrimination. plaintiff relies upon Godwin, supra, 150 F.3d at 1222 (where evidence to show that an

circumstantial

employer's proffered motives were pretext, such evidence must be 10

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"specific" and "substantial"' in order to create a triable issue with respect to whether the employer intended to discriminate); Villiarimo, 281 F.3d at 1062. Since plaintiff cannot meet his ultimate burden of

persuasion as a matter of law, defendant is entitled to judgment in its favor. Any conclusions of law erroneously designated as an

Uncontroverted fact is incorporated herein. DATED: June 7, 2010

MANUEL L. REAL UNITED STATES DISTRICT JUDGE PRESENTED BY: ANDRÉ BIROTTE JR. United States Attorney LEON W. WEIDMAN Assistant United States Attorney Chief, Civil Division /s/ Gwendolyn M. Gamble GWENDOLYN M. GAMBLE Assistant United States Attorney Attorneys for Defendant

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