Sharp v. Potter

Filing 15

ORDER Deeming Complaint Amended; Denying 9 Motion for Summary Judgment; and Order Continuing Pretrial Conference. The complaint is Deemed Amended to substitute Patrick R. Donahoe as Defendant. The Motion for Summary Judgment is Denied. The Pretrial Conference currently set for 4/2/2013 is continued to 4/22/2013 at 12:00 Noon. Signed by Judge Larry Alan Burns on 3/26/2013. (leh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JIMMY W. SHARP,

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CASE NO. 11cv1433-LAB (NLS)
Plaintiff,

ORDER DEEMING COMPLAINT
AMENDED;

vs.

ORDER DENYING MOTION FOR
SUMMARY JUDGMENT; AND

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PATRICK R. DONAHOE, Postmaster
General U.S. Postal Dept.,

ORDER CONTINUING PRETRIAL
CONFERENCE

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Defendant.
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After exhausting his administrative remedies by filing EEOC complaints that were

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dismissed, Plaintiff Jimmy Sharp filed this action for employment discrimination pursuant to

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Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq.

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Sharp, an African-American man employed by the U.S. Postal Service, alleges he

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was not given an opportunity to apply for three work details, which eventually were given to

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three non-African-American women. He alleges the supervisors’ motives in not giving him

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an opportunity to apply for these positions was discriminatory, based on his race and sex.

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AMENDMENT OF COMPLAINT TO NAME PROPER DEFENDANT

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The complaint initially named John E. Potter, Postmaster General, as Defendant, but

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Patrick R. Donahoe has held that position since the initiation of this action. Both parties list

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Donahoe’s name in the caption as Defendant. Fed. R. Civ. P. 25(d), strictly speaking, does

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not apply here because Potter never held the position of Postmaster General during the

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pendency of this action. But in keeping with the purpose of that provision, and because the

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parties do not dispute that Donahoe is the proper Defendant, the complaint is DEEMED

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AMENDED to substitute Patrick R. Donahoe as Defendant.

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MOTION FOR SUMMARY JUDGMENT

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Donahoe has moved for summary judgment. arguing that Sharp was not asked to

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apply for the details and the three employees were selected for the details, all for

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nondiscriminatory reasons. Donahoe offers evidence in support of these contentions.

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Legal Standards

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Summary judgment is appropriate where “there is no genuine issue as to any material

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fact and . . . the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.

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56(c). It is the moving party's burden to show there is no factual issue for trial. Celotex Corp.

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v. Catrett, 477 U.S. 317, 323 (1986). To meet this burden, it must show that the non-moving

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party lacks any evidence to support its claims. Id. at 325. And if it can make that showing,

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the non-moving party must respond with “specific facts” to show there is a genuine issue for

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trial. Id. at 324.

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The Court considers the record as a whole and draws all reasonable inferences in the

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light most favorable to the non-moving party. Fairbank v. Wunderman Cato Johnson, 212

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F.3d 528, 531 (9th Cir. 2000). The Court does not make credibility determinations or weigh

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conflicting evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Rather, the

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Court determines whether the record “presents a sufficient disagreement to require

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submission to a jury or whether it is so one-sided that one party must prevail as a matter of

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law.” Id. at 251–52. A mere scintilla of evidence is not sufficient to withstand summary

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judgment. Int’l Church of Foursquare Gospel v. City of San Leandro, 673 F.3d 1059, 1068

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(9th Cir. 2011) (quoting Anderson, 477 U.S. at 252). Not all alleged factual disputes will serve

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to forestall summary judgment; they must be both material and genuine. Id. at 247–49.

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Inadmissible evidence is not considered when ruling on a motion for summary

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judgment. See Fed. R. Civ. P. 56(e); Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179,
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1181–82 (9th Cir.1988). Nor may a party resist summary judgment by relying on mere

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allegations or denials of the moving party's evidence. Anderson, 477 U.S. at 248.

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To establish a prima facie case of discrimination, Sharp must demonstrate (1) that he

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belongs to a protected class; (2) that he performed his job satisfactorily; (3) that he suffered

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an adverse employment action; and (4) that his employer treated him differently than a

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similarly situated employee who does not belong to the same protected class as he does.

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See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See also Surrell v. Calif.

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Water Serv. Co., 518 F.3d 1097, 1105 (9th Cir. 2008) (“Typically, we apply the familiar

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McDonnell Douglas burden shifting framework for Title VII . . . claims.”)1 If a plaintiff

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establishes a prima facie case, the burden of production (not persuasion) shifts to the

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defendant to offer a legitimate, nondiscriminatory reason for its action. McDonnell Douglas,

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411 U.S. at 802.

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In Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000), the

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Supreme Court held that, once the plaintiff had made out a prima facie case, the factfinder

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could infer intentional discrimination without additional proof if the factfinder found the

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employer’s proffered nondiscriminatory reasons not credible. But even after Reeves, “at the

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summary judgment stage, a plaintiff may raise a genuine issue of material fact as to pretext

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via (1) direct evidence of the employer's discriminatory motive or (2) indirect evidence that

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undermines the credibility of the employer's articulated reasons.” Noyes v. Kelly Servs., 488

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F.3d 1163, 1170–71 (9th Cir. 2007) (citation omitted). In other words, if the Postmastert

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proffers nondiscriminatory reasons, Sharp must adduce evidence showing those reasons

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are pretextual. See Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008). If Sharp

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makes out a prima facie case and shows sufficient reason to disbelieve the employer’s

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explanation, summary judgment must be denied. See Reeves, 530 U.S. at 140.

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Alternatively, Sharp could proceed by producing “direct or circumstantial evidence
that a discriminatory reason more likely than not motivated the employer.” McDonnell
Douglas, 411 U.S. at 931. He relies on the familiar burden-shifting framework, however.
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Factual Background

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The following background facts are undisputed, except where a source is noted.

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While the Court has in some instances cited only evidence favorable to Sharp, it has

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considered all evidence the parties have cited. See Reeves, 530 U.S. at 149–150 (while

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court reviews the entire record, it resolves all evidentiary conflicts in nonmoving party’s

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favor).

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Sharp has been employed by the postal service since 1981. Since 2001, he has been

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a Level 7 Time and Attendance (“TACS”) clerk. He is competent in this position and has

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always received positive performance evaluation. He was written up once, in June of 2008,

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for failing to read emails promptly.

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A “detail,” such as those Sharp applied for, is “the opportunity to work in a position,

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learn it through training, and then perhaps apply for that position if it becomes available.”

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(Sharp Decl. in Opp’n to Mot. for Summ. J. (Sharp Decl.), ¶ 5.) Details do not arise

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predictably or regularly, and are generally filled quickly and informally. One of the three

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details Sharp thinks he should have been considered for carried a higher salary than his

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current position. (Id.) On April 10, 2008, Sharp emailed his supervisors expressing interest

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in any training that would prepare him for management opportunities in the future. (Id., ¶ 7.)

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He also asked them for consideration. (Id., ¶ 8.)

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In late September, 2008, three details opened up and were filled without the openings

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being announced or Sharp being told. The managers making the hiring decisions knew

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Sharp was an African-American man, and each of the details was filled by a non-African-

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American woman. Sharp argues he was more qualified for each of these positions, based

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on his experience, education, and training. The Postmaster offers evidence of the managers’

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legitimate, non-discriminatory reasons for hiring others besides Sharp. These include the

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need to fill the positions quickly; and the successful applicants’ expressed interest in the

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particular positions as well as (in the managers’ views) their superior qualifications and

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personal characteristics. The Postmaster also points to evidence Sharp had recently been

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written up for failing to respond to emails, resulting in his being slow to carry out his duties;
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that he was criticized by managers for being difficult to work with; and that he was inflexible

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and had a poor attitude. They also point out that one manager, Donna Rodgers, was herself

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African-American.

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Sharp also cites a matrix developed by the EEOC’s independent investigator. (Sharp

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Decl., ¶ 13 (citing Ex. E).) The matrix identifies itself as being based, in part on Sharp’s own

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testimony. The matrix identifies eleven positions and who filled them. Two of the positions

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were filled by men, which could undercut Sharp’s sex-based claims. But it doesn’t include

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a time frame, and the Postmaster doesn’t comment on it, so it isn’t clear when the positions

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identified in the matrix were offered and filled, and other details are also lacking. Neither

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party has anything to say about the demographics of the relevant pool, leaving it an open

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question whether the matrix generally tracks those demographics or whether departs from

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them, potentially suggesting a pattern of discrimination.

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Discussion

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Although Sharp’s briefing characterizes a detail as a promotion,2 the evidence

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unanimously points to it not being a promotion in itself; the employee on a detail does not

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leave his or her own position, but only temporarily takes on the job duties of another

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employee. (See Sharp Decl., ¶ 5; Motion for Summ. J. (Mot.), 2:26–27 (citing evidence

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showing a detail is a temporary position).) It represents an opportunity to gain training and

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experience, may lead to opportunities for advancement, and may temporarily entitle the

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employee to higher pay. (Sharp Decl., ¶ 5. (detail may improve chances for a promotion);

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Mot., 2:26–27 (citing evidence showing a detail is a temporary position).)

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Viewing the evidence in the light most favorable to Sharp, he is able to demonstrate

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(1) that he belongs to protected classes (African-American, male); (2) that he performed his

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job satisfactorily; (3) that he suffered an adverse employment action (i.e., not being allowed

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Sharp cites ELM 351.51, from the post office’s Employment and Labor Relations
Manual, (Opp’n, Ex. D), which he argues requires that details be announced and filled by
means of a uniform process. But this regulation addresses promotions, and the evidence
presented here shows that a detail is not a promotion. The Postmaster cites the Assignment,
Reassignment, and Promotion Handbook EL-312 716 et seq., a section dealing with
temporary assignments, which shows a detail is not filled subject to the same requirements
as is a promotion.
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to apply for details and not being considered for them); and (4) that his employer treated him

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differently than similarly situated employees who do not belong to the same protected

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classes as he does. Thus, he has made out a prima facie case. See McDonnell Douglas,

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411 U.S. at 802. Of course, the Postmaster points to conflicting evidence, but at this stage,

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the Court does not resolve such conflicts or weigh the evidence. Anderson, 477 U.S. at 255.

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Donna Rodgers, a supervisor, was responsible for both reprimanding Sharp for his

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job performance, and also designating the employee who would fill one of the details. That

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she is of the same race as Sharp does not preclude a Title VII racial discrimination claim

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against the employer, see Billingsley v. Jefferson County, 953 F.2d 1351, 1353 (11th Cir.

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1992), though it does undercut Sharp’s race-based claims. See Udoewa v. Plus4 Credit

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Union, 754 F. Supp. 2d 850, 873 (S.D.Tex. 2010). Similarly, the fact that Jon Bigornia, a

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supervisor who designated an employee to fill a second position, is male does not preclude

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Sharp’s sex-based discrimination claims, though it does undercut them.

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The Postmaster musters evidence explaining why others were selected and Sharp

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was not (Mot., 3:26–6:22), and also offers evidence that Sharp was detailed into the position

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of TACS Specialist seven times from November, 2004 to September, 2007, (Mot., 6:2–6),

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which Sharp does not dispute. (Sharp Decl.., ¶ 4.) While the Postmaster implies, based on

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this history, that no one was discriminating against Sharp earlier, Sharp relies on the same

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evidence to show he was better qualified for additional the details. (Id.,¶¶ 4, 10.) The

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Postmaster offers evidence Sharp turned down a supervisory warehouse position (Rodgers

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Decl., ¶ 11), but Sharp’s declaration contradicts this. (Id., ¶ 15.)

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The Postmaster has met its burden of showing legitimate, nondiscriminatory reasons

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for the decisions not to tell Sharp about the three details or select him for them. The burden

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now falls on Sharp to show either (1) direct evidence of the employer's discriminatory motive

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or (2) indirect evidence that undermines the credibility of the employer's articulated reasons.”

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Noyes, 488 F.3d at1170–71. He has no direct evidence, but he has pointed to indirect

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evidence.

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First, Sharp points to evidence he is well qualified and has been detailed in the TACS

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Specialist position numerous times. If a jury believed this evidence, and disbelieved the

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Postmaster’s, it could conclude there was some reason other than the employees’

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experience that others were told about the details, considered for them, and given them.

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While the Postmaster correctly points out the email only requested training, rather

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than a detail assignment generally, a detail provides some opportunity for learning new skills.

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And besides the email, Sharp offers evidence he mentioned to two supervisors numerous

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times that he was interested in higher level details. (Sharp Decl., ¶ 6.)3 Relying on this

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evidence, a factfinder could determine that supervisors knew Sharp was interested in detail

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assignments, but avoided telling him about openings.

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Sharp also points out facts suggesting that the reprimand in June of 2008 was not as

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serious as the Postmaster now claims. The documentary evidence shows Sharp was talked

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to about failing to respond to emails, but it could be taken in two ways. Exhibit G is a short

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list of employer expectations, which Sharp acknowledged with his signature, about how he

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would deal with the email problem. Exhibit H is notes from an investigative interview

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concerning the email problem. Both exhibits document that there was a problem, and a

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serious enough problem to warrant intervention, and Exhibit H says “Jimmy was told this was

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a last chance. He has been spoken to 3 or 4 times before . . . .” This evidence weighs

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against Sharp’s characterization of the discipline as minor relative to his long and generally

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problem-free career. At the same time, Exhibit H records “No discipline at this time.” Also in

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Sharp’s favor is the fact that there is no evidence of follow-up after July 16, 2008. The

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passage of a few months’ time could support Sharp’s argument that the reprimand was

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relatively minor.

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Another factor in Sharp’s favor is that there is a genuine conflict about whether he

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turned down an earlier detail opportunity that could have led to a permanent management

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The Postmaster cites Ex. J, Sharp’s response to supplemental interrogatory 14, as
evidence that Sharp admitted he had not requested a detail since 2003 or 2004. There are
no dates in this response later than 2004, suggesting that the last time he mentioned it was
in 2004. At the same time, the interrogatory does suggest they reached an understanding
that he would be told of the possibility of detail assignments in the future.
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position. The Postmaster offers Rodgers’ declaration that he told a supervisor he wasn’t

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interested in this detail, because it was “dirty work.” (Mot., 6:7–13 (citing evidence).) Sharp

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denies ever saying this. (Sharp Decl., ¶ 15.) Accepting Sharp’s evidence as persuasive, a

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factfinder could conclude this represented the supervisors’ efforts to cover up an illicit

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purpose. See Reeves, 530 U.S. at 147 (holding that if a factfinder rejects an employer’s

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explanation, it may infer an illicit motive).

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In Reeves, the Supreme Court made clear an employer could still prevail, even if a

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plaintiff made out a prima facie case. Reeves, 530 U.S. at 148 (discussing situations where

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summary judgment for an employer would still be appropriate). But after Reeves, that

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category of cases was reduced to those where, “although the plaintiff has established a

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prima facie case and set forth sufficient evidence to reject the defendant's explanation, no

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rational factfinder could conclude that the action was discriminatory.” Id.

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Based on the entire record, the Court concludes that Sharp has offered some

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evidence from which a trier of fact could disbelieve the nondiscriminatory reasons, and on

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this basis conclude they were pretextual. The evidence for Sharp’s claims does not appear

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particularly strong, but it is more than a scintilla.

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Conclusion and Order

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For these reasons, the motion for summary judgment is DENIED.

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The pretrial conference, currently on calendar for Tuesday, April 2, 2013, is

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CONTINUED to Monday, April 22, 2013 at 12:00 noon.

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IT IS SO ORDERED.
DATED: March 26, 2013

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HONORABLE LARRY ALAN BURNS
United States District Judge

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