Pantoja v. Brennan
Filing
34
MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 6/29/2017. (nmfn)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
NAISHA PANTOJA,
Plaintiff,
v.
MEGAN BRENNAN, Postmaster General
of the United States Postal Service,
Defendant.
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Civ. No. 16-232-SLR
John M. LaRosa, Esquire of LaRosa & Associates, Wilmington, Delaware. Counsel
for Plaintiff. Of counsel: Christine E. Burke, Esquire of Karpf, Karpf & Cerutti, P.C.,
Bensalem, Pennsylvania.
David C. Weiss, Esquire, Whitney C. Cloud, Esquire, and Laura Hatcher, Esquire of
United States Attorneys Office, Wilmington, Delaware. Counsel for Defendant.
MEMORANDUM OPINION
Dated: June J-q , 2017
Wilmington, Delaware
RM~istrict Judge
I.
INTRODUCTION
Plaintiff Naisha Pantoja ("plaintiff") sued Megan Brennan (the "defendant"), in her
capacity as postmaster general of the United States Postal Service (the "Postal
Service"), for violation of Title VII of the Civil Rights Act of 1964. (D.I. 1) Plaintiff
alleges that the Postal Service, as her former employer, subjected her to religious
discrimination by: (1) failing to provide reasonable accommodation; and (2) terminating
her in retaliation for complaints of discrimination. 1 (D.I. 1 at 1f 28; D.I. 30 at 1)
Defendant has moved for summary judgment. (D.I. 26) The court has subject matter
jurisdiction pursuant to 28 U.S.C. ยง 1331.
II.
BACKGROUND
The parties broadly agree about the events that occurred, and occasionally
present conflicting versions of certain details. Nevertheless, defendant has, for
purposes of this motion, assumed that plaintiff's version of the facts is true. (D.I. 27 at
2) More important, the court finds that those factual disputes, where they exist, are not
material to resolving defendant's motion for summary judgment.
A.
The Duties and Expectations of City Carrier Assistants
On April 5, 2014, the Postal Service hired plaintiff as a City Carrier Assistant for
the Lancaster Ave. station. (D.I. 28-15 at -217) City Carrier Assistants are temporary
employees hired on a one-year trial basis to determine whether they merit a career
Plaintiff waived any claim based on disparate treatment when she did not
respond to defendant's arguments on that issue and instead stated that her claims were
based only on accommodation and retaliation. (See D.I. 27 at 15-20; D.I. 30 at 1; D.I.
31 at 1-2).
position. (D.I. 28-1 at 2; D.I. 28-2) Lancaster Ave. station is a busy office with 60-70
mail carriers and dozens of mail routes. (D.I. 28-21at15:8-15, 13:8-23) The duties of
City Carrier Assistants require "arduous exertion," resulting in some City Carrier
Assistants leaving before the end of their term. (D.I. 28-19 at 59:1-23; D.I. 28-2 at -208)
City Carrier Assistants are treated differently than career employees. (D.I. 28-1
at 8-9) A supervisor may request to remove a City Carrier Assistant from the Postal
Service for "just cause" based on the first infraction. (Id.) For smaller infractions, a
supervisor may conduct a pre-disciplinary interview and then choose whether to issue
discipline such as a letter of warning. (D.I. 28-21at15:22-24, 16:10-24) A supervisor
does not need higher management approval to issue discipline; however, the supervisor
generally seeks approval when requesting suspension or removal. (Id. at 17:2-8) In
addition, City Carrier Assistants are not eligible for uniforms until they achieve certain
work milestones. (D.I. 28-1 at pp. 4-5) In the interim, they are permitted to wear workappropriate clothing. (Id.) Plaintiff testified that she generally wore a khimar and garb
or sweats to work. 2 (D.I. 28-19 at 51 :11-25)
8.
Plaintiff's Disciplinary Issues
Plaintiff had several disciplinary issues in the summer of 2014. On July 11, 2014,
plaintiff did not deliver an assigned route. Per the disciplinary structure for City Carrier
Assistants, Supervisor Lewis conducted the pre-disciplinary interview and thereafter
issued plaintiff a letter of warning dated July 18, 2014. (D.I. 28-3) A week later, on July
2
A khimar is a headscarf worn in public by some Muslim women; garb is a more
general term by which plaintiff refers to a long dress. (D.I. 28-19 at 51 :12-15, 52:15-20)
2
24, 2014, Supervisors Pollard-McGrath and Carpenter issued another letter of warning
to plaintiff for failing to scan route markers. (D.I. 28-4)
On August 8, 2014, Supervisor Carpenter assigned plaintiff a route and gave her
"Red Plums" (advertisements) to deliver. (D. I. 28-19 at 124-128) Plaintiff questioned
her assignment, because she thought the Red Plums should have been delivered the
day before while she was out. (Id.; D.I. 28-16 at -151) This led to a meeting with
plaintiff, Supervisor Carpenter, Postmaster Maher, and Manager Toombs. (D.I. 28-19 at
124-128) Plaintiff alleges that during the meeting, Supervisor Carpenter had an
attitude, Postmaster Maher grabbed her shoulder, and all three were yelling at her. (Id.)
Plaintiff does not allege that any official made any discriminatory comments, questioned
her clothing, or questioned her religion during the meeting. After the meeting, plaintiff
left the postal station citing health issues and did not return to work for a week. (Id. at
177:20-24; D.I. 28-15 at -217)
On August 22, 2014, plaintiff went to the Lancaster Ave. station to collect a form
for her doctor to sign so she could return to work. (D.I. 28-19 at 179:5-17, 181 :13182:8) Upon her arrival, Supervisor Pollard-McGrath assigned her a route. (Id. at
187: 11-188:25) Plaintiff informed Supervisor Pollard-McGrath that she was there only
to collect a form for her doctor's appointment that day. (Id. at 183-184) Although there
appeared to be some confusion as to whether plaintiff's appointment was canceled,
ultimately Supervisor Pollard-McGrath told plaintiff she should go to the doctors and
then come back to work, but make sure she changed her clothes before she came
back, because she "wasn't properly dressed to deliver the mail." (D.I. 28-14 at -175)
Plaintiff said at the time she had "her garb on[;] face showing." (Id.) Plaintiff's
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appointment with the doctor did not finish until around 3:00 p.m., and she did not return
to work and deliver the route. (D.I. 28-19 at 184:16-25, 188:21-25) Plaintiff was marked
absent without leave, but she was not disciplined. (D.I. 28-22 at 30-32)
On August 24, 2014, plaintiff told work that she was not sure if she was on the
schedule but could not come in anyway because she lost her car keys. (D.I. 28-7)
Plaintiff was on the schedule for that day. (Id.) In response, Postmaster Maher sent
Manager Toombs an email stating that plaintiff "needs to be issued a removal." (Id.)
August 25, 2014, plaintiff told Supervisor Pollard-McGrath that she needed help
completing a route, because she wanted to leave early to go to the police station to
resolve a car break-in. (D.I. 28-19 at 197-198; D.I. 28-9 at 2) Plaintiff claims that
Supervisor Pollard-McGrath responded by criticizing her clothing and kicking her out of
the station. (D.I. 28-19 at 199:4-23) Plaintiff did not complete her route. (D.I. 28-9 at 2)
Plaintiff was sent a letter to appear for a pre-disciplinary interview on August 29, 2014.
(D.I. 28-8)
C.
Management's Request to Remove Plaintiff
On August 29, 2014, Supervisor Pollard-McGrath conducted a pre-disciplinary
interview with plaintiff to discuss the incident on August 25. (D.I. 28-8; D.I. 28-9) Rose
King, a union official representing plaintiff, was also present. (Id.) Supervisor PollardMcGrath asked plaintiff if she was prepared to work that day (August 29). (D.I. 29-9 at
3) Plaintiff indicated that she was not prepared to work, because the letter she received
setting up the August 29th meeting "didn't state that." (D.I. 28-14 at -175; D.I. 28-16 at 157) Supervisor Pollard-McGrath, Ms. King, and plaintiff also discussed whether
plaintiff was properly dressed to work. (D.I. 29-9 at 3; D.I. 28-19 at 204-205) According
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to Ms. King, she asked Supervisor Pollard-McGrath if plaintiff could go home and come
back prepared, to which plaintiff responded that she could not come back, because she
had made other plans for the day. 3 (D.I. 29-9 at 3) According to plaintiff, Supervisor
Pollard-McGrath said there was "no point" in having plaintiff change, because she was
"never properly dress[ed] to work." (D.I. 28-14 at -175) After the meeting, plaintiff did
not work. (D.I. 28-9 at 2) That same day, Supervisor Pollard-McGrath and Manager
Toombs formally requested removal of plaintiff based on the disciplinary actions that
occurred on July 18, July 24, and August 25. (D.I. 28-11) The request was sent to
labor representatives to approve, process, and complete a "notice of removal." (Id.)
The notice of removal was finalized on September 17, 2014 and states that the reason
for removal is plaintiff's "improper conduct/failure to follow instructions" as demonstrated
on July 18, July 24, and August 25. (D.I. 28-12)
On September 3, 2014, five days after Supervisor Pollard-McGrath initiated the
removal process, plaintiff requested pre-complaint counseling from the Postal Service's
Equal Employment Opportunity ("EEO") agency. (D.I. 28-13at1J 3; D.I. 28-14) In her
EEO forms, plaintiff alleged discrimination based on "religion the way I dress Muslim."
(D.I. 28-14 at-174) When asked to describe the discrimination, plaintiff wrote that
Supervisor Pollard-McGrath told her she was not in proper attire for work on August 22,
when she arrived to pick up the doctor's form, and on August 29, during the predisciplinary interview. (Id.) No other discriminatory acts or actors were alleged. On
September 11, 2014, Counselor Alpheaus was assigned to investigate the case. (D.I.
3
In her deposition, plaintiff testified that Ms. King did not ask if plaintiff could go
home to change, but in her pre-counseling forms, plaintiff states that Ms. King did ask.
(Compare D.I. 28-19 at 205:1-7 with D.I. 28-14 at-175)
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,.m 23-24) Thereafter, plaintiff received a notice of removal and told Counselor
Alpheaus. (Id. at ,.m 26-27) Counselor Alpheaus contacted Manager Toombs and
28-13 at
Supervisor Pollard-McGrath for the first time after plaintiff received her notice. (Id. at ~
28) Counselor Alpheaus sent introductory emails about plaintiff's informal complaint to
Manager Toombs and Supervisor Pollard-McGrath on October 1, 2014. (Id.) The
counselor's efforts to reach a resolution among the parties was unsuccessful, so on
November 25, 2014, she alerted plaintiff of her right to file a formal EEO complaint. (Id.
at~
30) Meanwhile, management's decision to terminate plaintiff went through the
informal and formal grievance processes pursuant to the Postal Service's collective
bargaining agreement, and was upheld. (D.I. 28-15) Plaintiff's removal was effectuated
in November 2014.
Plaintiff filed her formal EEO complaint with the Postal Service's EEO agency on
December 1, 2014. (D.I. 28-16 at -158) The formal complaint described three incidents
of alleged discrimination: the meeting on August 8 regarding the RedPlum
advertisements; the meeting on August 22 when plaintiff arrived at work to pick up the
doctor's form; and the pre-disciplinary interview on August 29. (Id. at -151) Plaintiff
alleged that in the August 8 meeting she was "verbally attack[ed], scrutinized, and
looked down upon" for questioning why the Red Plum advertisements were not
delivered the day before. (Id.) Plaintiff alleged that in the August 22 and August 29
meetings she was "picked on about [her] attire." (D.I. 28-16 at-155) The EEO agency
accepted for investigation these three incidents and plaintiff's notice of removal issued
around September 18, 2016. (D.I. 28-17) On February 5, 2016, the EEO agency
issued its final decision denying plaintiff's claims for religious discrimination based on
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disparate treatment and /or retaliation. (D. I. 28-18) There was no analysis of a claim
for religious accommodation. (Id.)
Ill.
STANDARD OF REVIEW
"The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a). A "material fact" is one that "could affect the
outcome" of the proceeding. Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011 ).
The moving party bears the burden of demonstrating the absence of a genuine issue of
material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.
10 (1986). The court will "draw all reasonable inferences in favor of the nonmoving
party, and it may not make credibility determinations or weigh the evidence." Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
If the moving party is able to demonstrate an absence of disputed material facts,
the nonmoving party then "must come forward with 'specific facts showing that there is a
genuine issue for trial."' Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The mere existence of some evidence in support of the nonmoving party, however, will
not be sufficient for denial of a motion for summary judgment. Id. Rather, the
nonmoving party must present enough evidence to enable a jury to reasonably find for it
on that issue. Id. If the non moving party fails to make a sufficient showing on an
essential element of its case with respect to which it has the burden of proof, the moving
party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
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IV.
DISCUSSION
Although defendant raised several arguments, the court finds, as explained in
more detail below, that the accommodation claim fails because plaintiff did not exhaust
her administrative remedies. (D. I. 27 at 10-13) The retaliation claim fails because
plaintiff cannot prove causation. Accordingly, the court grants summary judgment in
defendant's favor on plaintiff's religious discrimination claims.
A.
Accommodation
Before bringing suit under Title VII in federal court, a plaintiff must exhaust her
administrative remedies. Webb v. City of Phi/a., 562 F.3d 256, 262 (3d Cir. 2009). "The
purpose of this administrative exhaustion requirement is to put the EEOC on notice of
the plaintiff's claims and afford it 'the opportunity to settle disputes through conference,
conciliation, and persuasion, avoiding unnecessary action in court." Id. (quoting Antal v.
Perry, 82 F.3d 1291, 1296 (3d Cir. 1996)). To establish a prima facie case of a failure
to accommodate claim, plaintiff must show: "(i) she holds a sincere religious belief that
conflicts with a job requirement; (ii) she informed her employer of the conflict; and (iii)
she was disciplined or subject to an adverse employment action for failing to comply
with the conflicting requirement." E.E.O.C. v. GEO Grp., Inc., 616 F.3d 265, 271 (3d
Cir. 2010).
Plaintiff's narrative in her informal and formal complaints did not put either the
EEO investigator or the EEO agency on notice of her accommodation claim. Plaintiff's
complaints are devoid of any allegation that she needed or was denied a religious
accommodation. Plaintiff does not allege that her clothing conflicted with a job
requirement. Indeed, plaintiff repeatedly asserted that she wore whatever she wanted
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to work, as did other temporary employees, and previous supervisors had no issues
with her attire. (See, e.g., 0.1. 28-17 at -075 ("I've been wearing my jilbab since I've
been working here"); Id. at -80 ("I've been wearing the same thing since I've been
there"); Id. at -071 (stating that "everyone else was allowed to come to work with
anything they wanted to wear"); Id. at -080 (stating that previous supervisors "never
cared" about her clothes)).
Instead, the crux of plaintiff's claims was that she was targeted and treated
differently by a particular supervisor, because of her religion. (See, e.g., 0.1. 17 at -071
(stating that she was being "treated less than human" compared to everyone else who
wore what they wanted); 0.1. 30 at 16 (arguing that plaintiff alleged that "she had been
singled out due to her religion and picked on")) As a result, the EEO investigation
focused on whether plaintiff was targeted, treated differently, or terminated because of
her religion. (See, 0.1. 28-13; 0.1. 28-17) Similarly, the final decision of the EEO
agency analyzed only claims for disparate treatment and retaliation. (0.1. 28-18)
Neither the investigation nor the agency considered facts or issues relevant to a
religious accommodation claim, including whether plaintiff's desire to wear religious
garb conflicted with any Postal Service policy, whether her garb interfered with her
ability to perform her job responsibilities, or whether plaintiff should be permitted to
continue to wear what she had always worn to work. Thus, there is no evidence that
plaintiff exhausted her administrative remedies with respect to a religious
accommodation claim. See, e.g., Ocasio v. City of Bethlehem, 2009 WL 37518, at *3
(E.O. Pa. Jan. 7, 2009) (finding that plaintiff failed to exhaust his administrative
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remedies because his discrimination claim did not put EEO on notice of claims for
retaliation, harassment, and hostile work environment).
Plaintiff argues that the EEO was on notice of her accommodation claim,
because it recited the standard for an accommodation claim in its final decision. (D.I. 30
at 16) The EEO included the standard in a general overview of law governing each type
of discrimination claims. (D.I. 28-18 at 4) Accommodation is not mentioned anywhere
else in the carefully-considered, single-spaced, seventeen-page decision. Accordingly,
this tenuous mention of accommodation is not enough to show that the EEO was on
notice of plaintiff's claim.
B.
Retaliation
Plaintiff claims that the Postal Service retaliated against her for protected activity,
namely filing an informal EEO complaint on September 3, 2014. (D.I. 1 at 111121-22) In
order to claim retaliation, a plaintiff must make a prima facie showing that: "(1) she
engaged in activity protected by Title VII; (2) the employer took an adverse employment
action against her; and (3) there was a causal connection between her participation in
the protected activity and the adverse employment action." Moore v. City of Phi/a., 461
F.3d 331, 340-41 (3d Cir. 2006); see also Daniels v. Sch. Dist. of Phi/a., 776 F.3d 181,
193 (3d Cir. 2015) (noting that protected activity includes filing formal charges and
making informal protests to management). To prove causation, "the plaintiff must show
that she would not have suffered an adverse employment action 'but for' her protected
activity." Young v. City of Phi/a. Police Dep't, 651 F. App'x 90, 96 (3d Cir. 2016). If the
plaintiff establishes a prima facie case, '"the burden shifts to the employer to advance a
legitimate, non-retaliatory reason' for its conduct and, if it does so, 'the plaintiff must be
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able to convince the factfinder both that the employer's proffered explanation was false,
and that retaliation was the real reason for the adverse employment action."' Moore,
461 F.3d at 342 (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500-01 (3d Cir.
1997)).
Plaintiff's claim of retaliation fails at the prima facie level, because the undisputed
facts show that the Postal Service decided to terminate plaintiff before plaintiff
approached the EEO, not after. The Postal Service initiated the removal process on
August 29, 2014; plaintiff filed an EEO complaint on September 3, 2014. (Compare D.I.
28-11 with D.I. 28-14) Thus, the Postal Service did not and could not have acted with
retaliatory animus when it decided to initiate termination before plaintiff made her
complaints to EEO. Cf. Glanzman v. Metropolitan Mgmt. Corp., 391 F.3d 506, 516 (3d
Cir. 2004) (noting that adverse action for protected activity was not possible when the
employee had already been terminated). For this reason, plaintiff's retaliation claim
fails.
V.
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment (D.I. 26) is
granted. An appropriate order shall issue.
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