Bailey v. Donahoe
Filing
55
MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, Defendant's summary judgment motion 37 is granted in large part, but denied as to one particular adverse employment action. The status hearing of 09/09/2016 remains in place, when the parties should be ready to discuss whether they want a settlement-conference referral, some more time to negotiate amongst themselves, or are ready to set a trial schedule. Emailed notice(slb, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMES BAILEY,
)
)
Plaintiff,
)
)
v.
)
)
MEGAN J. BRENNAN, Postmaster General )
of the United States,
)
)
Defendant.
)
No. 14 C 07833
Judge Edmond E. Chang
MEMORANDUM OPINION AND ORDER
James Bailey, a mail carrier at the Wood Dale Post Office, filed this lawsuit
in October 2014 against the Postal Service, alleging race discrimination, gender
discrimination, and retaliation under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000 et seq.1 R. 1; R. 13.2 Bailey, who is male and African-American, claims
that since 2009, he has faced harsher discipline than those similarly situated to him
of a different race or gender. Id. He also claims he was retaliated against for
complaining of this alleged discrimination. Id. The Postal Service seeks summary
judgment on all of Bailey’s claims. R. 37. For the reasons discussed below, the
Postal Service’s motion is granted in part and denied in part.
I. Background
In deciding the Postal Service’s motion for summary judgment, the Court
views the evidence in the light most favorable to the non-moving party, Bailey.
1This
Court has subject matter jurisdiction over the case under 28 U.S.C. § 1331.
to the docket are labeled as “R.” followed by the docket number, and when
necessary, the page and paragraph number.
2Citations
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Before summarizing the facts of this case, the Court first addresses two arguments
raised by the Postal Service: (1) that Bailey’s response to the Postal Service’s
statement of material facts violated Local Rule 56.1, and (2) that Bailey
impermissibly attached the affidavit of Cecil Watson to his response to the Postal
Service’s statement of material facts. R. 50, Def.’s Reply Br. at 2-4.
A. Local Rule 56.1
First, the Postal Service asserts that Bailey’s response to its statement of
material facts failed to comply with Local Rule 56.1. Def.’s Reply Br. at 2. Local
Rule 56.1 governs motions for summary judgment in this District. It requires the
moving party to provide “a statement of material facts as to which the moving party
contends there is no genuine issue.” L.R. 56.1(a)(3). The non-moving party is then
required to respond to “each numbered paragraph in the moving party’s statement,
including, in the case of any disagreement, specific references to the affidavits,
parts of the record, and other supporting materials relied upon.” L.R. 56.1(b)(3)(B).
The non-moving party must “admit or deny each factual statement proffered by the
[moving party] and … designate with specificity and particularity those material
facts believed to establish a genuine dispute for trial.” Greer v. Bd. of Educ. of the
City of Chi., Ill., 267 F.3d 723, 727 (7th Cir. 2001). All uncontroverted material facts
in the moving party’s statement are deemed admitted. L.R. 56.1(b)(3)(C). If the nonmoving party wishes to present additional facts, then it must do so in its own
“statement, consisting of short numbered paragraphs” supported by citations to the
2
record. Id. Complying with Local Rule 56.1 is not a mere technicality. Indeed, the
Rule takes on added importance in a case, like this one, with many events
underlying the discrimination claims, an expansive volume of discovery, and an
extensive factual back-and-forth; sorting through the myriad factual assertions
would be extremely difficult without substantial adherence to Local Rule 56.1.
The Postal Service asserts that Bailey failed to comply with this Rule in
several ways. First, in multiple instances, Bailey supposedly claims a fact is in
dispute when he simply wishes to add additional information. Def.’s Reply Br. at 2.
The Postal Service points to Bailey’s responses to DSOF ¶¶ 10-13, 19, 22, 34, 41, 44,
47, 57-58, and 60.3 Id. In one instance, the Postal Service is correct. In response to
Paragraph 11, Bailey does not actually dispute any of the facts described in the
Postal Service’s statement, which relate to an incident that took place on September
1, 2009; rather, Bailey agrees to those facts and then adds new, unrelated facts
about the hours he worked that day. Pl.’s Resp. to DSOF ¶ 11. Bailey’s hours are
not referenced in the Postal Service’s statement. If Bailey wanted to add these
additional facts, then he needed to do so in his own statement, not in his response to
the Postal Service’s statement.4 L.R. 56.1(b)(3)(B) & (C); Ammons v. Aramark
3Citations
to the parties’ Local Rule 56.1 Statements of Fact are identified as follows:
“DSOF” for the Postal Service’s Statement of Facts [R. 39], “PSOF” for Bailey’s Statement
of Facts [R. 48], “Pl.’s Resp. to DSOF” for Bailey’s response to the Postal Service’s
Statement of Facts [R. 47], and “Def.’s Resp. to PSOF” for the Postal Service’s response to
Bailey’s Statement of Facts [R. 51].
4Bailey likely sought to add these additional facts because his disciplinary notice
related to this incident discusses events occurring after 10 a.m. R. 39, Exh. 8, 9/1/09 Notice
of Suspension. But, according to Bailey, his timesheet for that day shows him clocking out
before 10 a.m.; these are the facts Bailey seeks to add in his response. Pl.’s Resp. to DSOF
3
Uniform Svcs., Inc., 368 F.3d 809, 817 (7th Cir. 2004) (noting that “several of
[plaintiff’s] responses … admit to the allegation but then add other additional
facts[;] [t]hese facts should have been included in a separate statement”); Johnson
v. Cnty. of Cook, 2012 WL 2905485, at *12 (N.D. Ill. July 16, 2012) (“It is
inappropriate for a non-movant to include additional facts, meaning facts
extraneous to the substance of the paragraph to which the non-movant is
responding, in a Local Rule 56.1(b)(3)(B) response. Rather, Local Rule 56.1 requires
… a litigant seeking to oppose a motion for summary judgment [to] file a response
that contains a separate statement under Local Rule 56.1(b)(3)(C) … .” (citations
and quotation marks omitted)). Paragraph 11 is deemed admitted.
In the other paragraphs, however, Bailey does seem to be genuinely disputing
some of the facts contained in those paragraphs. For example, in Paragraph 10, the
Postal Service states that “Bailey filed his initial complaint in this lawsuit on
October 7, 2014, nearly a year after the final denial.” DSOF ¶ 10. Bailey broadly
denies this statement. Pl.’s Resp. to DSOF ¶ 10. But Bailey goes on to admit that he
filed his complaint on October 7, 2014. Id. He then adds additional facts about the
dates his EEOC appeals were decided. Id. Although the Postal Service asserts that
Bailey agrees with the entirety of its statement, the additional dates Bailey
provided do seem to dispute the latter part of the Postal Service’s statement,
namely, that Bailey filed his complaint in this case a year after the final denial.
Sure, it would have been better for Bailey to admit to the date he filed this
¶ 11. But as already explained, if Bailey wanted to add these additional facts, the proper
place to do so was in his own statement. L.R. 56.1(b)(3)(B) & (C).
4
complaint and then to dispute only the second half of the Postal Service’s statement,
but his response does not warrant automatic admission of the entirety of the Postal
Service’s statement.
The Court reaches a similar conclusion on the remaining paragraphs. To be
sure, there are times where Bailey disputes some of the Postal Service’s asserted
facts in a particular paragraph, but then goes on to impermissibly add additional,
unrelated facts in his response. See Pl.’s Resp. to DSOF ¶ 12 (last sentence
challenging Postal Service’s Exhibit 8); id. ¶ 13 (last two sentences related to
Bailey’s pay for September 1, 2009); id. ¶ 60 (last four sentences discussing
discipline issued). In these instances, the Court disregards the additional facts, and
takes into account only Bailey’s actual challenge to the Postal Service’s statement.
Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 643-44 (7th Cir. 2008) (affirming the
district court’s refusal to consider additional facts included in the non-movant’s
Local Rule 56.1(b)(3)(B) response); see also Eason v. Nolan, 416 Fed. App’x 569, 56970 (7th Cir. 2011); Bolden v. Dart, 2013 WL 3819638, at *2 (N.D. Ill. July 23, 2013).
The Postal Service next claims that several of Bailey’s other responses violate
Local Rule 56.1 by admitting to specific facts in a statement and then disputing
facts not in the statement. Def.’s Reply Br. at 3. The Postal Service points to DSOF
¶¶ 14, 17, 20, 23, and 33. Id. These paragraphs are all similar. In all but one of the
paragraphs, the Postal Service asserts that Bailey failed to apologize or to accept
responsibility for certain conduct that resulted in Bailey receiving discipline. In his
responses, Bailey admits that he did not apologize or accept responsibility, but he
5
then adds that he disputes the statement’s intimation that he engaged in the
allegedly improper conduct. E.g., Pl.’s Resp. to DSOF ¶ 33 (“33. Bailey did not
apologize or accept responsibility for leaving … mail in the wrong place[] …
[Response]: Undisputed as to ‘Bailey never apologized’ and as to ‘nor did he accept
responsibility,’ only. … Plaintiff disputes the intimation in Paragraph 33 that he
was responsible for leaving mail in the wrong place, and denies the same.”). The
only paragraph that is slightly different is Paragraph 17, but there too Bailey
challenges the statement’s implied assertion. Pl.’s Resp. to DSOF ¶ 17. So, all of
Bailey’s responses are merely a denial of the unstated factual implications
underlying the Postal Service’s statements, and there is nothing wrong with laying
down a cautious marker that Bailey disagrees with the unstated implications.
These paragraphs are properly in dispute.
Next, the Postal Service argues that in certain instances Bailey purports to
dispute facts related to what actually happened by adding statements about what
should have happened. Def.’s Reply Br. at 3. The Postal Service points to DSOF
¶¶ 25, 27-28, 36-37, 48, and 69. Id. The Postal Service is correct. In each of Bailey’s
responses here, Bailey seeks to add additional facts about how a particular
supervisor should have acted under the alleged circumstances. These additional
facts are argumentative and improper in a Rule 56.1 statement. De v. City of Chi.,
912 F. Supp. 2d. 709, 713 (N.D. Ill. 2012) (“[A] Local rule 56.1(b)(3)(B) response [is]
not the proper province of argumentative or conclusory allegations.”) They will be
disregarded. Johnson v. Trans Union, LLC, 2012 WL 983793, at *2 (N.D. Ill. March
6
22, 2012) (“‘It is inappropriate to make legal arguments in a Rule 56.1 statement’ or
response.” (quoting Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec,
529 F.3d 371, 382 n.2 (7th Cir. 2008))). The only slightly different response is to
Paragraph 25; there Bailey also adds additional facts that he later uses to support
his argument for why his supervisor acted improperly. Pl.’s Resp. to DSOF ¶ 25.
Because this suffers from the same problems discussed previously, the Court will
also disregard these argumentative statements and additional facts.
Finally, the Postal Service argues that Bailey violated Local Rule 56.1 in his
response to DSOF ¶¶ 15 and 68 by claiming to dispute the facts alleged without
citing to any evidence in the record. Def.’s Reply Br. at 3; L.R. 56.1(b)(3)(B). The
Court agrees that Bailey fails to include a citation to any record evidence in his
response to Paragraph 68, as required under Local Rule 56.1(b)(3)(B), so the Postal
Service’s statement in that paragraph is deemed admitted. FTC v. Bay Area Bus.
Council, Inc., 423 F.3d 627, 634 (7th Cir. 2005); Smith v. Lamz, 321 F.3d 680, 68283 (7th Cir. 2003) (“[A] mere disagreement with the movant’s asserted facts is
inadequate [under Local Rule 56.1] if made without reference to specific supporting
material.”). But the Court disagrees that Bailey fell short in Paragraph 15.
Although Bailey does not include any record citations in his response to that
particular paragraph, he does refer specifically to certain of his prior responses. See
Pl.’s Resp. to DSOF ¶ 15 (referring to “Plaintiff’s Response in Paragraphs 11-14,
herein”). In those prior responses, Bailey includes specific record citations. Id.
¶¶ 11-14. This response is acceptable.
7
B. Cecil Watson Affidavit
The Postal Service also challenges Bailey’s reliance on the affidavit of Cecil
Watson, a former Postal Service supervisor. Def.’s Reply Br. at 4. Bailey attaches
Watson’s affidavit to his response to the Postal Service’s statement of facts. See
R. 47, Exh. C, Watson Aff. The affidavit does not, however, say anything specifically
about the incidents at issue in this case. Instead, Watson’s affidavit describes his
understanding of several post office policies and procedures based on his experience
as a supervisor. See generally Watson Aff. The problem is that the subject of
Watson’s potential testimony was too vaguely and too broadly disclosed by Bailey
during discovery. First and foremost, Watson’s testimony likely qualifies as expert
testimony under Federal Rule of Evidence 702 (he is an expert based on his
“experience”), which requires a disclosure under Rule 26(a)(2). At a minimum,
Bailey should have provided “a summary of the facts and opinions to which
[Watson] is expected to testify,” Fed. R. Civ. P. 26(a)(2)(C)(ii), which he did not (at
least there is nothing in the record saying that he did). Even if Watson should not
be considered a Rule 702 expert, still Bailey did not sufficiently disclose the subjects
of Watson’s testimony. Specifically, in an interrogatory response, Bailey merely
indicated that Watson had “knowledge of the facts” and “knowledge of Postal
Policies and Regulations.” R. 39, Exh. 44, Pl.’s Third Resp. to Def.’s Interrog. at 11.
This is not a proper disclosure of the “subjects of [the] information” that the witness
had under Rule 26(a)(1)(A)(i), which Bailey (and every litigant) has an ongoing duty
to supplement during discovery. It would have been one thing if Bailey had
8
identified, even generally, what policies and regulations Watson had knowledge of,
but Bailey did not do that. So the Postal Service was unfairly surprised by Watson’s
affidavit. Bailey did not front this issue in his response brief, nor did he seek a surreply to explain why reliance on Watson’s affidavit was permissible after the Postal
Service attacked it in the defense reply brief. Because Bailey failed to properly
disclose his intended reliance on Watson, Watson’s affidavit will be disregarded.
With these issues now addressed, the Court turns to the facts.
C. Bailey’s Employment at the Wood Dale Post Office
James Bailey is an African-American male. DSOF ¶ 1.5 From 1998 through
November 2013, Bailey was employed by the Postal Service as a part-time flexible
letter carrier (or, PTF-carrier for short) at the Wood Dale Post Office. DSOF ¶ 1;
R. 39, Exh. 1, Bailey Dep. 10:12-11:24. In November 2013, Bailey was converted to a
full-time letter carrier, a position he still holds today. DSOF ¶ 3; Bailey Dep. 11:1724.
Part-time postal carriers are generally assigned to regular work schedules of
less than forty hours per service week6; they must also be available to work flexible
hours as assigned by the Postal Service. DSOF ¶ 2; Bailey Dep. 12:9-11 (“A parttime letter carrier is … only guaranteed two hours … .”); R. 39, Exh. 2, Union
Contract at 007204. Full-time carriers, by contrast, are assigned to work schedules
of at least five eight-hour days per service week. DSOF ¶ 3; Union Contract at
007204. See also Bailey Dep. 12:5-13 (“A. A full-time letter carrier is guaranteed 40
5Where
a fact is admitted, only the asserting party’s statement of facts is cited;
where an assertion is otherwise challenged, it is so noted.
6A service week begins on Saturday and ends on Friday. PSOF ¶ 13.
9
hours. A part-time letter carrier is not[.]”). Part-time carriers can bid to temporarily
hold-down a full-time assignment, which is vacant either because the regular
carrier is “on leave or otherwise unavailable to work for five or more days.” R. 47,
Exh. B, The Joint Contract Administration Manual (JCAM) Art. 41.2B.3-B.5 at
008018 (listing “part-time flexible carriers” as a type of carrier that “may … opt for
hold-down assignments”). If a PTF-carrier’s bid is successful, and the carrier is
assigned to a temporary, full-time, hold-down assignment, then that carrier is
entitled to assume the full-time schedule for that assignment. Pl.’s Resp. to DSOF
¶ 2; JCAM Art. 41.2B.3-B.5 at 008024 (“Employees on hold-downs are entitled to
work the regularly scheduled days and the daily hours of duty of the assignment[.]
(emphasis in original omitted)); R. 47, Exh. A, Collins 2015 Dep. 116:16-117:5 (“[a]
PTF … on the Hold-Down Assignment … [is] holding down assignments just like a
regular would normally do”). In February 2011, Bailey was temporarily assigned to
Carrier Route 4, a vacant full-time assignment. Pl.’s Suppl. Resp. to Def.’s Interrog.
at 7; R. 47, Exh. D, Bailey Ltr. to Postmaster General at 007160; R. 48, Exh. 3,
Collins 2012 EEO Dep. 10:3-5; Am. Compl. ¶ 10.
While working at the Wood Dale Post Office, and in particular, while working
Carrier Route 4, Bailey was supervised by Kusum Puri and Marcus Collins. DSOF
¶¶ 7-8; R. 48, Exh. 3, Collins 2012 EEO Dep. 10:1-5; R. 39, Exh. 13, Puri 2011 EEO
Aff. ¶ A7; Am. Compl. ¶ 12. Kusum Puri is female and of Asian descent. Puri 2011
EEO Aff. ¶¶ A3, A5. From May 2007 to November 2012, Puri worked as an “Officer
in Charge and Supervisor of Customer Services.” DSOF ¶ 7; R. 39, Exh. 4, Puri 2014
10
EEO Decl. ¶ 1. In November 2012, she became Postmaster of the Wood Dale Post
Office. DSOF ¶ 7, Puri 2014 EEO Decl. ¶ 1. Collins is male and African-American.
DSOF ¶ 8; R. 39, Exh. 5, Collins 2013 EEO Decl. ¶ 2. He has worked as a full-time
letter carrier at the Wood Dale Post Office for 20 years. Collins 2013 EEO Decl. ¶ 1.
From around 2005 or 2006 until 2013 or 2014, Collins held a temporary supervisory
position: “Acting Supervisor of Customer Service.” PSOF ¶ 33; DSOF ¶ 8; Collins
2013 EEO Decl. ¶ 1. While in that role, Collins was Bailey’s immediate supervisor.
Collins 2013 EEO Decl. ¶ 1. Both Collins and Puri have characterized Bailey as “a
very good Carrier,” and “the best carrier on this particular route [Route 4].” R. 48,
Exh. 2, Collins 2011 EEO Aff. ¶ A12; Puri 2011 EEO Aff. ¶ A7 (“[Bailey] is a very
good and productive Carrier on his route”); PSOF ¶ 3.
Yet, throughout his career, Bailey has been disciplined several times, which
has included several “working suspensions.” DSOF ¶ 4. This means the employee
continues to work and to collect his usual pay during the term of suspension. Id.;
Bailey Dep. 18:3-19:4; R. 48, Exh. 1, JCAM Art. 16.1 at 007907 (“Employees issued
… suspensions of fourteen days or less will remain on duty during the term of the
suspension with no loss of pay.”). Working suspensions are still considered to be “of
the same degree of seriousness” as time-off suspensions; they may also be
considered in future disciplinary actions. Id.; R. 39, Exh. 8, 9/18/09 Notice of
Suspension at 006032.
11
The Postal Service has certain policies to help guide a supervisor when
issuing discipline. Article 16.1 of the Joint Contract Administration Manual7
instructs supervisors to follow the “Just Cause Principle,” which “requires a fair and
provable justification for discipline.” PSOF ¶ 2; JCAM Art. 16.1 at 007903. This
provision outlines several basic factors for a supervisor to consider when issuing
discipline, including whether there is a rule on point, whether that rule is
reasonable and consistently enforced, whether a thorough investigation was
completed, whether the severity of the discipline reasonably relates to the infraction
and the employee’s disciplinary record, and whether the discipline was issued in a
timely manner. JCAM Art. 16.1 at 007903-7904; PSOF ¶ 2. Supervisors are also
instructed to use, generally speaking, a progressive discipline system: “for most
offenses[,] [supervisors] must issue discipline in a ‘progressive’ fashion, issuing
lesser discipline (e.g., a letter of warning) for a first offense and a pattern of
increasingly severe discipline for succeeding offenses (e.g., short suspension, long
suspension, discharge).” JCAM Art. 16.1 at 007904.
If a carrier is disciplined, then that carrier may challenge the discipline by
filing a grievance. PSOF ¶ 28; R. 47, Exh. I, Puri 2015 Dep. 17:8-11. During the first
step of the grievance process, informal Step A, the supervisor who issued the
discipline independently reviews the discipline and decides whether to reduce it.
7The
Joint Contract Administration Manual (JCAM) explains how the letter carriers’
collective bargaining agreement should be applied. PSOF ¶ 1; R. 47, Exh. O, JCAM Cover &
Preface. It also discusses how various disputes between the Postal Service and letter
carriers have been resolved over time. PSOF ¶ 1; JCAM Cover & Preface. Supervisors must
resolve any disputes discussed in the manual in accordance with the manual’s guidance.
PSOF ¶ 1; JCAM Cover & Preface at 007638.
12
PSOF ¶ 28; Puri 2015 Dep. 17:20-18:4. During the second step of the grievance
process, Step B, the discipline is reviewed by the postmaster. PSOF ¶ 28; Puri 2015
Dep. 18:5-13. The postmaster meets with the letter carriers’ union president, and
then decides whether to keep the employee’s discipline the same or reduce it. Puri
2015 Dep. 18:5-11. If the employee disagrees with the postmaster’s decision, then
the matter is sent to the Dispute Resolution Team. PSOF ¶ 29; Puri 2015 Dep.
19:24-20:13. The Dispute Resolution Team may choose to reduce or even to drop the
discipline; it may also decide whether the discipline should stay in the employee’s
file and for how long. PSOF ¶ 29; Puri 2015 Dep. 20:14-21:7.
Every time Bailey has been disciplined by the Postal Service, he has filed a
grievance. DSOF ¶ 6; Bailey Dep. 86:14-87:6. Since at least 2009, he has also filed a
corresponding EEO complaint. DSOF ¶ 6; Bailey Dep. 86:25-87:10. Five of Bailey’s
EEO complaints, and the disciplinary actions discussed within them, are relevant to
this case. DSOF ¶ 9.
D. Bailey’s EEO Complaints
i. First EEO Complaint: Incident on September 1, 2009
In Bailey’s first EEO complaint, EEOC docket no. 443-2010-00133X, which
Bailey filed in December 2009, Bailey complained about an incident that took place
on September 1, 2009, and the resulting discipline that he received. DSOF ¶ 9;
R. 39, Exh. 6, 10/31/13 EEOC Denial of Mot. for Recons. of First EEO Compl. at
001468. When Bailey arrived at work on September 1, 2009, he noticed mail for a
different route—Route 8—at his station. DSOF ¶ 11. Bailey approached Puri about
13
it. Id. ¶¶ 11-12; Pl.’s Resp. to DSOF ¶ 12. Puri told Bailey that he would need to
deliver the Route 8 mail, which would take about 25 minutes, in addition to the
mail for his own route. DSOF ¶ 11. Bailey told Puri that he would not be able to
deliver all of this mail within eight hours. DSOF ¶ 12.
The parties dispute what happened next. According to Puri, she then told
Bailey to work through lunch or to take overtime if necessary. Id.; R. 39, Exh. 8,
9/18/09 Notice of Suspension at 006032. But Bailey refused to deliver the Route 8
mail and repeatedly asked Puri, “What are your instructions?” DSOF ¶ 12; 9/18/09
Notice of Suspension at 006032. Because Bailey’s tone during this exchange was
loud, rude, and disruptive to the workroom floor, Puri asked Bailey to leave. DSOF
¶¶ 12-13; 9/18/09 Notice of Suspension at 006032.
According to Bailey, after he told Puri that he would not be able to deliver all
the mail without going into overtime, he simply asked her what her instructions
were. Pl.’s Resp. to DSOF ¶ 12; R. 39, Exh. 7, 1/08/10 Step B Decision at 000089.
Puri then began yelling at Bailey, telling him that he could perform the assignment
in eight hours. Pl.’s Resp. to DSOF ¶ 12; 1/08/10 Step B Decision at 000089. Bailey
asked her to stop yelling; Puri became angry and told Bailey to clock out for the day.
Pl.’s Resp. to DSOF ¶ 12; 1/08/10 Step B Decision at 000089.
Both parties agree that following this incident, on September 18, 2009, Puri
issued Bailey a 14-day suspension for conduct unbecoming a postal employee. DSOF
¶ 15; 9/18/09 Notice of Suspension. That suspension was later (in January 2010)
reduced to a letter of warning by the Dispute Resolution Team. DSOF ¶ 16; 1/08/10
14
Step B Decision at 000088. Bailey was ultimately paid for the hours of work he
missed on September 1 after being sent home by Puri. DSOF ¶ 13; Pl.’s Resp. to
DSOF ¶ 13; 1/08/10 Step B Decision at 000090.
In his EEO complaint, Bailey asserted that the Postal Service discriminated
against him on account of his race (African-American) and sex (male), and in
reprisal for prior protected EEO activity when Puri sent him home on September 1,
2009, placed him in an off-duty status without pay for the day, and issued him a 14day suspension. 10/31/13 EEOC Denial of Mot. for Recons. of First EEO Compl. at
001468. After an investigation, Bailey requested a hearing before an EEOC
administrative judge. Id. That hearing request was dismissed, and the Postal
Service issued a final decision on the record finding no discrimination. Id. In
October 2013, Bailey’s final request for reconsideration was denied, and Bailey was
told he had 90 calendar days within which to file a civil action in a United States
District Court. Id. at 001469.
ii. Second EEO Complaint: Incidents on June 30, August 4, and
August 25, 2011
Bailey filed his second EEO complaint, EEOC docket no. 440-2012-00068X, in
November 2011. DSOF ¶ 18; R. 39, Exh. 10, 8/21/14 EEOC Decision on Second EEO
Compl. at 001837. Here, Bailey complained about discipline he received in 2011 on
June 30 and August 4, as well as an incident that occurred on August 25, 2011.
DSOF ¶ 18; 8/21/14 EEOC Decision on Second EEO Compl. On June 30, 2011, Puri
issued Bailey a letter of warning for failing to perform his duties as assigned after a
clerk found some of Bailey’s deliverable mail in an empty tray on a skid that was to
15
be returned to the plant and discarded. DSOF ¶ 19; R. 39, Exh. 11, 6/30/11 Ltr. of
Warning at 000258; R. 39, Exh. 12, Puri 2012 EEO Dep. 8:20-9:17. Bailey denies
leaving any deliverable mail in an empty tray. Pl.’s Resp. to DSOF ¶ 19. Puri
admits that neither she, nor the distribution clerk who discovered the mail, saw
Bailey place it there. Puri 2012 EEO Dep. 9:3-11. Puri’s letter of warning was later
reduced to a job discussion by the Dispute Resolution Team. DSOF ¶ 21; R. 39, Exh.
15, 11/22/11 Step B Decision at 000323-324.
On August 4, 2011, Collins issued Bailey a seven-day suspension for failing to
perform his duties as assigned after a clerk found first-class mail in Bailey’s
undeliverable bulk business mail (or, UBBM) bin.8 DSOF ¶ 22; R. 39, Exh. 16,
8/04/11 Notice of Suspension at 000256; R. 39, Exh. 17, Collins 2012 EEO Dep.
13:19-14:13. Bailey disputes that he left any mail behind. Pl.’s Resp. to DSOF ¶ 22.
The Postal Service admits that no one saw Bailey put any mail in his UBBM bin.
Def.’s Resp. to PSOF ¶ 6. When questioned about this incident by Collins, Bailey
continually responded, “I do my job to the best of my ability.” DSOF ¶ 23; 8/04/11
Notice of Suspension at 000256. Bailey’s seven-day suspension was again reduced
by the Dispute Resolution Team, this time to a letter of warning. DSOF ¶ 24; R. 39,
Exh. 19, 11/21/11 Step B Decision at 000330.
The incident on August 25, 2011 related to the number of hours Bailey was
allowed to work that day. Bailey complained that he was allowed to work only 5.15
hours, while PTF-carrier LaTanya Rogers (female and African-American), and
8Undeliverable
bulk business mail, or UBBM, “is mail that cannot be delivered and
cannot be forwarded. UBBM is mail that can be disposed of as waste.” R. 39, Exh. 25, Puri
2013 EEO Decl. ¶ 5.
16
transitional employees Rafael Barszczewski (male and Caucasian) and Debra
Stewart (female and African-American) were allowed to work longer hours. DSOF
¶¶ 25-26; R. 39, Exh. 20, Hours Analysis at 000339; R. 39, Exh. 42, 10/23/14 Final
Agency Decision at 002334; Pl.’s Third Resp. to Def.’s Interrog. at 4-5 (¶ 8). On
August 25, Rogers worked 8.98 hours, Barszczewski worked 8.25 hours, and
Stewart worked 8.00 hours. Pl.’s Resp. to DSOF ¶ 25; R. 39, Exh. 20, Hours
Analysis at 000339, 000342.
According to Puri, mail was “very light” that day, so she needed to take work
from a PTF-carrier to ensure that the full-time carriers could work their full eighthour days. DSOF ¶ 25; Puri 2011 EEO Aff. ¶ A24. She decided to split Bailey’s
route, rather than another PTF-carrier’s route (like Rogers’), because it was “more
efficient” and would help even-out the weekly hours between Bailey and Rogers.
Puri 2011 EEO Aff. ¶¶ A24-A25; Puri 2012 EEO Dep. 43:20-45:14. Puri stated that
she tries to equalize PTF work hours in accordance with a verbal agreement she has
with the letter carriers’ union steward in the Wood Dale Post Office. Puri 2011 EEO
Aff. ¶ A25; Puri 2012 EEO Dep. 46:21-24. She also stated that Bailey agreed to give
up part of his route that day: “I asked PTF Bailey if he would give up part of his
route and when he agreed, I asked him how many hours work would he agree to
give up. He replied 3 hours.” Puri 2011 EEO Aff. ¶ A24; Puri 2012 EEO Dep. 45:1-8
(“Q. Mr. Bailey agreed [to give up part of his route]? A. That’s right.”).
At that time, Bailey was still assigned to Route 4, his temporary full-time,
hold-down assignment. Collins 2012 EEO Dep. 34:7-9. Rogers, by contrast, was not
17
on a bid assignment. Id. 34:17-19 (“Q. And Miss Rogers was not on a bid assignment
for that day, correct? A. Correct.”). A PTF-carrier on a hold-down assignment (like
Bailey was at the time) is generally considered to have priority over both a nonhold-down PTF-carrier and transitional employees. Collins 2015 Dep. 41:6-15 (“[Q.]
Is it fair to say that a PTF, a T.E. [transitional employee], and a causal, … there is
no priority over who is entitled to more hours? A. What I would say out of those
three people, I would base it off of that the PTF would probably be a little bit more
superior than a T.E. or a causal … .”); id. 117:11–118:3 (“Q. Do … PTFs with HoldDown Assignments come before PTFs without [them] … ? A. I would say that they
do, because they actually hold-down the assignment. … Q. So if there was overtime
available, … [o]bviously the full-time carrier gets priority in the overtime hours … ?
A. Yes. Q. Okay. And the PTF [with] … the Hold-Down Assignment would have
priority over the PTF that doesn’t … is that right? A. I would say so, yes, because
that PTF is holding down an assignment … .”); Puri 2015 Dep. 22:9-21 (“[Q]. Are the
PTFs ranked for any purposes by seniority? A. When time comes for conversion, yes,
the senior person gets converted first. Q. Okay. But other than conversion … ? A.
No. Q. What if a PTF has a Hold-Down Assignment, does the … hold-down PTF
carrier have priority over a non-hold-down PTF carrier? A. Yes.”); id. 69:5-8 (“Q.
Can work be taken from a PTF on a Hold-Down Assignment and given to PTFs who
were not on Hold-Down Assignments? A. No.”).
It is also undisputed that there is no specific written post office policy
requiring hours to be equalized among PTF-carriers. Puri 2012 EEO Dep. 47:1-6 (Q.
18
Okay. Let me ask you. According to postal contract, are you required to equalize -A. No. Q. -- PTF hours? A. No, no.”); Collins 2012 EEO Dep. 39:4-7 (“Q. … [I]s there
a contract regulation that states you have to equalize PTF work hours? A. I don’t
recall … ”). However, it does appear to be an adopted practice in the Wood Dale Post
Office. Id. 39:10-15 (“A. … I don’t recall. But I believe that it is fair that all PTFs get
the equal share of hours. We have a verbal agreement between the union and
management in our office. … So that’s what I’ve always known … ”); Puri 2012 EEO
Dep. 46:21-24 (“Q. Are you required to equalize PTF work hours? A. It’s our verbal
agreement with the union steward in Wood Dale office.”).
Pointing to these three incidents, Bailey alleged in his second EEO complaint
that he was subjected to harassment and a hostile work environment on account of
his race and sex, and in reprisal for prior EEO activity. 8/21/14 EEOC Decision on
Second EEO Compl. at 001837-1838. Bailey again requested a hearing before an
EEOC Administrative Judge. Id. at 001838. The Postal Service sought a decision
without a hearing. Id. On November 25, 2013, the administrative judge issued a
summary judgment decision in favor of the Postal Service finding no discrimination.
Id. The judge concluded that Bailey had “[failed to] show by a preponderance of the
evidence that he was discriminated against on the bases of race, sex and reprisal
discrimination,” or that “the [Postal Service’s] proffered reasons for its actions were
a
pretext
for
discrimination.”
Id.
The
Postal
Service
implemented
the
administrative judge’s decision in its final action. Id. Bailey appealed, but the
Postal Service’s decision was affirmed on August 18, 2014. Id. at 001837-1841.
19
iii. Third EEO Complaint: Incidents on August 9, September 25, and
October 23, 2012
In his third EEO complaint, EEOC docket no. 440-2013-00077X, Bailey
contested discipline he received on August 9, 2012, and October 23, 2012, as well as
an incident that occurred on September 25, 2012. DSOF ¶ 31. On August 9, 2012,
Collins issued Bailey a seven-day suspension after deliverable mail was again found
in Bailey’s UBBM bin on three separate occasions. R. 47, Exh. K, 8/09/12 Notice of
Suspension; R. 39, Exh. 24, Collins 2013 EEO Decl. ¶¶ 5-10; Puri 2013 EEO Decl.
¶¶ 9-11. Before issuing the suspension, on July 26, 2012, Collins tried to hold a predisciplinary
interview
with
Bailey,
but
because
Bailey
requested
union
representation, the meeting was pushed to a later date. DSOF ¶ 33; Pl.’s Resp. to
DSOF ¶ 33; 8/09/12 Notice of Suspension at 000530; R. 39, Exh. 27, Bailey 2013
EEO Dep. 30:16-31:4. The parties agree that on July 26, when Bailey was
instructed to go to the Postmaster’s office, Bailey asked, “Is it discipline?” 8/09/12
Notice of Suspension at 000530; Collins 2013 EEO Decl. ¶ 8; Bailey 2013 EEO Dep.
30:19-24. The parties dispute what happened next. According to Collins, when
Bailey was told that it could lead to discipline, he tried to clock out; when he was
told he could be charged with failing to follow instructions if he left, Bailey started
yelling. Collins 2013 EEO Decl. ¶ 8; 8/09/12 Notice of Suspension at 000530. Bailey
was then instructed to leave. Id. According to Bailey, it was Collins who got upset.
Bailey 2013 EEO Dep. 31:1-13. Bailey also disputes whether he left mail in his
UBBM tub on the dates alleged. Pl.’s Resp. to DSOF ¶ 33. Again, the Postal Service
admits no one saw Bailey put the mail in his UBBM bin. Def.’s Resp. to PSOF ¶ 6.
20
The incident on September 25, 2012 related to an attempt by Bailey to take
eight hours of sick leave, a request that was ultimately denied. DSOF ¶ 34. Bailey
was scheduled to work both Monday, September 24, 2012 and Tuesday, September
25, 2012. Puri 2013 EEO Decl. ¶ 13. On September 24, he was to work his regular
Route 4 shift. Id.; Pl.’s Resp. to DSOF ¶ 34. On September 25, which was a nonscheduled day for Route 4 (meaning he was not required to work his route that day),
Bailey was still scheduled to work, but on some other PTF-carrier assignment. Puri
2013 EEO Decl. ¶ 13; R. 39, Exh. 26, Puri 2013 EEO Dep. 40:22-41:16. On Monday
September 24, Bailey called in sick and requested sixteen hours of sick leave for
Monday September 24 and Tuesday September 25. R. 47, Exh. E., Bailey 2015 Aff.
¶ 9; Puri 2013 EEO Dep. 40:22-41:1. Bailey’s request for eight hours on September
25 was denied. DSOF ¶ 34; Puri 2013 EEO Dep. 41:5-7. According to Puri, Bailey’s
request was denied because it was a non-scheduled day for him on Route 4 and he
was already scheduled to work forty hours that week. Id. 41:8-16. The Postal
Service’s Employee and Labor Relations Manual limits a PTF-carrier’s ability to
request sick leave depending on a PTF-carrier’s hours in a given week. R. 39, Exh.
29, Employee Manual at 007787. It provides that “part-time flexible employees who
have been credited with 40 hours or more of paid service (work, leave, or a
combination of work and leave) in a service week are not granted sick leave during
the remainder of that service week.” Id. (Section 513.421(c)). Puri interpreted this
section as prohibiting Bailey from being paid sick leave for his non-scheduled day
(September 25) because he was already scheduled to work (and to be paid for) at
21
least forty hours that week. DSOF ¶ 36; Puri 2013 EEO Decl. ¶ 13; Puri 2013 EEO
Dep. 41:8-16. Indeed, excluding the requested sick leave on September 25, Bailey
was paid for 42.94 hours of work that week (September 22-28, 2012). DSOF ¶ 35.
The last instance of discipline Bailey cited in this EEO complaint occurred on
October 23, 2012. On that day, Collins issued Bailey a 14-day suspension for failing
to maintain a regular work schedule after Bailey had three unscheduled absences
within a three-month period. R. 39, Exh. 30, 10/23/12 Notice of Suspension. Bailey
did not submit doctors’ notes for any of those absences. DSOF ¶ 38. He was not,
however, strictly required to provide this documentation. For absences of three days
or less, supervisors may accept the employee’s statement explaining the absence.
PSOF ¶ 12; R. 48, Exh. 5, Employee and Labor Relations Manual at 003032. This
policy of disciplining carriers for three unscheduled absences in a three-month
period is not a nationwide policy, but there is evidence to suggest that it is a local
policy at the Wood Dale Post Office. PSOF ¶ 17; R. 47, Exh. P, Def.’s Second Resp.
to Pl.’s First Set of Interrog. at 002373-2374 (¶ 25); Puri 2015 Dep. 33:22-34:9.
Bailey’s third EEO complaint was unsuccessful. In June 2014, an EEOC
administrative judge determined that Bailey had not shown that he was the victim
of illegal discrimination. R. 39, Exh. 22, 7/02/14 Notice of Final Action Related to
Third EEO Compl. at 003908; R. 39, Exh. 31, 6/20/14 EEOC AJ Summ. J. Op. In
July 2014, the Postal Service issued a final agency action implementing the decision
22
of the administrative judge.9 7/02/14 Notice of Final Action Related to Third EEO
Compl.
iv. Fourth EEO Complaint: Incidents on February 16 and April 2, 2013
In Bailey’s fourth EEO complaint, EEOC docket no. 440-2013-00216X, Bailey
complained about discipline he received on February 16, 2013, and April 2, 2013.
DSOF ¶ 39. On February 16, 2013, Collins issued Bailey a 14-day suspension for
failing to perform his duties as assigned, and more specifically, for the unauthorized
disposal of mail. R. 39, Exh. 35, 2/16/13 Notice of Suspension. This discipline was
issued after two pieces of first-class mail were found in Bailey’s UBBM bin on
December 8, 2012. Id.; R. 39, Exh. 33, Photocopy of Mail. Originally, Collins issued
Bailey a notice of removal for this incident on December 22, 2012. R. 39, Exh. 32,
12/22/12 Notice of Removal; DSOF ¶ 40. But that notice was later rescinded due to a
typographical error in the discipline. R. 39, Exh. 34, 2/08/13 Rescission of Notice of
Removal. Bailey was then issued a 14-day suspension. 2/16/13 Notice of Suspension.
Bailey denies leaving mail in his UBBM bin. Pl.’s Resp. to DSOF ¶ 40.
On April 2, 2013, Collins issued Bailey a notice of removal for failing to
perform his duties as assigned after Bailey delivered a certified flat-mail piece on
March 19, 2013, without obtaining the recipient’s signature. R. 39, Exh. 37, 4/02/13
9The
parties both state that the Postal Service issued its final agency decision on
June 20, 2014. See DSOF ¶ 31; Pl.’s Resp. to DSOF ¶ 31. But a review of the exhibit they
cite—the notice of final action, R. 39, Exh. 22, 7/02/14 Notice of Final Action Related to
Third EEO Compl.—suggests that this is incorrect. That notice is dated July 2, 2014, and
stamped as received by the Postal Service’s Law Department on July 9, 2014. Id. at 0039083909. In the body of the notice, it states that an administrative judge with the EEOC issued
a decision on June 20, 2014, which was received by the Postal Service on June 30, 2014. Id.
at 003908. So it cannot be that this notice was also issued on June 20, 2014. But the date is
not really important.
23
Notice of Removal. Puri learned about this incident after a customer called to
complain; she then shared the information with Collins. R. 39, Exh. 40, Puri 2014
Second EEO Decl. ¶ 6. R. 39, Exh. 41, Collins 2014 EEO Decl. ¶ 6. Bailey denies
delivering any certified mail on March 19, 2013. Pl.’s Resp. to DSOF ¶¶ 43-45.
Bailey points to a log sheet which does not show any certified mail for his route on
March 19. Id. ¶ 44; R. 47, Exh. R, 3/19/13 Accountable Log Sheet. Bailey’s notice of
removal for this incident was reduced by the Dispute Resolution Team to a 14-day
suspension, which was combined with the 14-day suspension Bailey received for the
incident on February 16 (mail found in his UBBM bin) into one 14-day suspension.
R. 39, Exh. 36, 7/19/13 Step B Decision at 000895 (“[T]he DRT agreed that the
Notice of Removal dated 04/02/13 and the 14-Day Suspension dated 02/16/13 will be
combined into one 14-Day Suspension to remain in the grievant’s file[.]”).
In the same opinion addressing Bailey’s third EEO complaint, the
administrative judge also addressed Bailey’s fourth complaint. 6/20/14 EEOC AJ
Summ. J. Op. The administrative judge again found that Bailey had not shown that
he was discriminated against, and found that summary judgment in favor of the
Postal Service was proper. Id. at 003905-3907.
v. Fifth EEO Complaint: Inability to Start Work Earlier and Delay in
Conversion to Full-time Carrier
In his fifth and final EEO complaint, EEOC docket no. 440-2014-00065X,
Bailey complained about being denied the opportunity to start work thirty minutes
earlier—at 7:00 a.m. rather than 7:30 a.m.—like two other PTF-carriers: Rosa
Villareal (female and Hispanic) and LaTanya Rogers (female and African24
American). DSOF ¶ 46; Pl.’s Resp. to DSOF ¶ 46; R. 39, Exh. 42, 10/23/14 Final
Agency Decision at 002334. Bailey asserted that at least for Rogers, this resulted in
her receiving more overtime wages. Pl.’s Resp. to DSOF ¶ 47; R. 39, Exh. 47, Pl.’s
Suppl. Discovery Resp. Ltr. at 2; 10/23/14 Final Agency Decision at 002330-2231.
Puri states that she assigned Rogers an earlier start time so that Rogers, who was a
PTF-carrier at the time, could case mail on open routes;10 this enabled Puri to avoid
calling a carrier to work on his or her non-scheduled day at the overtime rate. Puri
2014 EEO Decl. ¶ 12. Puri further states that she assigned Rogers an earlier start
time so that Puri could run the office in a more efficient manner and avoid paying
unnecessary overtime. Id.
In addition, Bailey complained about the amount of time it took the Postal
Service to convert him from a PTF-carrier to a full-time carrier. DSOF ¶ 46. Bailey
was converted to a full-time carrier in November 2013. DSOF ¶ 49. He claims he
should have been converted earlier—in January 2013—when Rosa Villareal was
converted to a “T6” swing position, which is a full-time carrier position. Pl.’s Third
Resp. to Def.’s Interrog. at 9; PSOF ¶ 18. According to Puri, at the time Villareal
was converted, there was a nationwide mandate in effect that precluded PTF-
10Neither
party defines what it means to “case mail.” But it would appear it means
to manually sort letters into some sort of sequence or designated cases (such as into
delivery sequence). See United States Postal Service, Publication 32 – Glossary of Postal
Terms, available at http://about.usps.com/publications/pub32/pub32_terms.htm (last visited
August 26, 2016) (defining “case” as follows: “(1) A piece of equipment that contains labeled
separations into which clerks or carriers manually sort letters, flats, or irregular parcels.
Cases are designed to allow flexible configuration of the separations, and they can be
expanded by attaching additional cases (wing cases) on either side. (2) To sort mail into a
case. To place letter and flat mail into the separations of a carrier case. (3) To place flat
mail in delivery sequence outside a case using the delivery order shown for the letter mail.”)
25
carriers from filling any vacant full-time positions other than T6 swing positions.
PSOF ¶¶ 19, 21. Because Villareal was senior to Bailey, it was appropriate for her
to be converted first. DSOF ¶ 53 (“Under the Postal Service’s union contract, PTFs
must be converted to full-time carriers in order of their seniority.”); Union Contract
at 007246-7247; R. 39, Exh. 45, Seniority List (listing Villareal before Bailey).
Bailey does not contest that it was appropriate for Villareal to be converted
first. But he asserts that there were two full-time vacancies in January 2013:
Carrier Route 4 and a T6 swing position. PSOF ¶ 22; Bailey Dep. 76:24-77:7. Bailey
contends that Dannie Mamparo’s T6 swing position should have also been available
because Mamparo had been on medical leave for over a year at that point. PSOF
¶¶ 22-23. The Postal Service disputes this fact. Def.’s Resp. to PSOF ¶ 22. According
to the Postal Service, in January 2013, only the Route 4 position was available.11 Id.
Villareal bid on that position, which she was awarded, and then when a T6 swing
position became available later in 2013, Villareal dropped the Route 4 position and
bid on the T6 swing position. Id. After Villareal left the Route 4 position, it was
posted in September 2013.12 Id. See also R. 48, Exh. 9, Puri 11/05/13 Aff. at 001082.
Bailey’s fifth EEO complaint again fell short. On October 23, 2014, the Postal
Service issued a final agency decision concluding that Bailey had failed to establish
11The
parties do not discuss how long Bailey’s hold-down assignment for Route 4
lasted. But there is evidence suggesting that Bailey held the assignment until July 2013.
Pl.’s Third Resp. to Def.’s Interrog. at 7.
12The Postal Service’s position on these facts is somewhat inconsistent. The facts
discussed here were taken from the Postal Service’s Response to Paragraph 22 of Bailey’s
Local Rule 56.1 statement. But in its response to an earlier paragraph, the Postal Service
agreed that Villareal was converted to a T6 swing in January 2013. Def.’s Resp. to PSOF
¶ 18. It is possible that these responses could be reconciled if the Route 4 position is also a
T6 swing. But it is not clear.
26
through these two incidents that he was discriminated against on account of his
race or gender, or in retaliation for EEO activity. R. 39, Exh. 42, 10/23/14 Final
Agency Decision on Fifth EEO Compl.
E. This Lawsuit
Bailey filed this lawsuit on October 7, 2014, alleging that the Postal Service
discriminated against him on account of his race (African American) and gender
(male) (Counts 1 and 2), and that the Postal Service retaliated against him for filing
these EEO complaints (Count 3). R. 1; R. 13. The Postal Service now moves for
summary judgment on all of Bailey’s claims. R. 37, Def.’s Mot. Summ. J.
II. Legal Standard
Summary judgment must be granted “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 genuine issue of material fact exists if “the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating
summary judgment motions, courts must view the facts and draw reasonable
inferences in the light most favorable to the non-moving party. Scott v. Harris, 550
U.S. 372, 378 (2007). The Court may not weigh conflicting evidence or make
credibility determinations, Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697,
704 (7th Cir. 2011), and must consider only evidence that can “be presented in a
form that would be admissible in evidence,” Fed. R. Civ. P. 56(c)(2). The party
seeking summary judgment has the initial burden of showing that there is no
27
genuine dispute and that they are entitled to judgment as a matter of law.
Carmichael v. Vill. of Palatine, 605 F.3d 451, 460 (7th Cir. 2010); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986); Wheeler v. Lawson, 539 F.3d 629, 634 (7th
Cir. 2008). If this burden is met, the adverse party must then “set forth specific
facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256.
III. Analysis
In his amended complaint, Bailey raises three claims: discrimination based
on race in violation of Title VII, 42 U.S.C. § 2000e-2(a)(1) (Count 1); discrimination
based on sex, also in violation of Title VII, 42 U.S.C. § 2000e-2(a)(1) (Count 2); and
retaliation in violation of Title VII, 42 U.S.C. § 2000e-3(a) (Count 3). R. 13, Am.
Compl. In addition, Bailey now appears to be asserting, for the first time, a hostile
work environment claim. R. 46, Pl.’s Resp. Br. at 6.
A. Hostile Work Environment Claim
The Court first addresses Bailey’s hostile work environment claim, which was
not asserted in his amended complaint. See Am. Compl. The first time Bailey
mentions this claim is in his response to the Postal Service’s motion for summary
judgment. Id. (“Defendant … ignores Plaintiff’s claims that the totality of the
baseless actions against him amounted to a hostile work environment.”). But
Bailey’s attempt to add this hostile work environment claim comes far too late.
Bailey already amended his complaint once on January 15, 2015, without
mentioning any hostile work environment claim. R. 13, Am. Compl. On February
18, 2015, the Court set a Rule 16(b) deadline to add parties or amend the pleadings
28
of June 1, 2015. R. 15, 2/18/15 Minute Entry. Over a year has passed since that
deadline, and up until now, Bailey had still made no mention of wanting to add a
hostile work environment claim to his complaint. While Rule 15 instructs that leave
to amend the pleadings should be “freely give[n] … when justice so requires,” Fed.
R. Civ. P. 15(a)(2), this right is not absolute. See Airborne Beepers & Video, Inc. v.
AT&T Mobility LLC, 499 F.3d 663, 666 (7th Cir. 2007); Brunt v. Serv. Emps. Int’l
Union, 284 F.3d 715, 720 (7th Cir. 2002). And Rule 15(a)(2) must be read in
conjunction with Rule 16. See Alioto v. Town of Lisbon, 651 F.3d 715, 719 (7th Cir.
2011); Fed. R. Civ. P. 16. Once a court enters a scheduling order under Rule 16, as
the Court did here in February 2015, any subsequent requests to amend the
pleadings after that deadline must satisfy both Rule 16(b)(4)’s “good cause”
requirement, as well as Rule 15(a)(2)’s standard. Alioto, 651 F.3d at 719; Kortum v.
Raffles Holdings, Ltd., 2002 WL 31455994, at *3 (N.D. Ill. Oct. 30, 2002) (“When [an
amendment] request would require alteration to a Rule 16(b) scheduling order … ,
the moving party must overcome the presumption against modification through ‘a
showing of good cause.’” (quoting Fed. R. Civ. P. 16(b))).
In this case, Bailey has not only failed to show good cause for his delay in
seeking this amendment, but he has also failed to even ask for leave to amend his
complaint, which is the only way he can add a claim at this point. Fed. R. Civ. P.
15(a). Instead, he tries to insert this new claim into his summary judgment briefing
without any explanation. Pl.’s Resp. Br. at 6. “It is well settled that a plaintiff may
not advance a new argument in response to a summary judgment motion.”
29
Abuelyaman v. Ill. St. Univ., 667 F.3d 800, 814 (7th Cir. 2011) (citing Andree v.
Ashland Cnty., 818 F.2d 1306, 1314 n.11 (7th Cir. 1987)). Bailey’s attempt to do so
here fails. The Postal Service is entitled to summary judgment on Bailey’s hostile
work environment claim.
B. Discrimination Claims
Bailey next asserts that the Postal Service discriminated against him on
account of his race (African-American) and gender (male) in violation of Title VII.
Am. Compl. ¶¶ 61-72. To prevail on a Title VII discrimination claim, a plaintiff
must show that “the evidence would permit a reasonable factfinder to conclude that
the plaintiff’s race, ethnicity, sex, religion, or other proscribed factor caused the
discharge or other adverse employment action.” Ortiz v. Werner Enters., Inc., —
F.3d —, 2016 WL 4411434, at *4 (7th Cir. Aug. 19, 2016). The Seventh Circuit has
dispensed with the “direct” and “indirect” frameworks for analyzing employment
discrimination claims, id., which had taken on a life of their own, sowing confusion
and sometimes imposing a too-high burden on plaintiffs. But the prima facie
framework under McDonnell Douglas of course survives (it was established by the
Supreme Court). Id. at *5. Under the prima facie framework, a plaintiff must show
that: (1) he belongs to a protected class; (2) he performed his job to the defendant’s
legitimate expectations; (3) he suffered an adverse employment action; and (4)
similarly situated employees outside of his protected class were treated more
favorably by the defendant. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803
(1973); Atanus v. Perry, 520 F.3d 662, 672-73 (7th Cir. 2008); Wyninger v. New
30
Venture Gear, Inc., 361 F.3d 965, 978 (7th Cir. 2004). If the plaintiff is able make a
prima facie case, then the burden shifts to the defendant “to produce a legitimate,
noninvidious reason for its actions.” Atanus, 520 F.3d at 672. If the defendant
successfully rebuts the plaintiff’s prima facie case, then the burden shifts back to
the plaintiff “to show that the [defendant’s] reasons ‘are false and only a pretext for
discrimination.’” Id. (quoting Bahl v. Royal Indem. Co., 115 F.3d 1283, 1290 (7th
Cir. 1997)).
In arguing against summary judgment, Bailey relies solely on the McDonnell
Douglas framework. The Postal Service asserts that in each instance of alleged
discrimination, Bailey fails to show that he suffered an adverse employment action
or that similarly situated employees outside his protected class were treated more
favorably (or both). Def.’s Br. at 9. The Postal Service also asserts that it had a
legitimate, non-discriminatory reason for all of its action. Id. at 18-19. Bailey
alleges eleven discrete incidents of discrimination. The Court reviews each in turn.
1. September 1, 2009 Incident
Bailey first asserts that he was discriminated against on September 1, 2009,
when Puri sent him home after he refused to deliver auxiliary Route 8 mail and
disrupted the workroom floor. Am. Compl. ¶¶ 13-15; DSOF ¶¶ 9, 12-13. Puri
originally issued Bailey a 14-day suspension for this incident, but that suspension
was reduced to a letter of warning. DSOF ¶¶ 15-16; 9/18/09 Notice of Suspension;
1/08/10 Step B Decision. Bailey was ultimately paid for a full day of work on
September 1, 2009. DSOF ¶ 13; 1/08/10 Step B Decision at 000090.
31
The Postal Service asserts that Bailey’s claim here is untimely, Def.’s Br. at
7, and the Postal Service is correct. Bailey filed his EEO complaint for this incident
on December 7, 2009. 10/31/13 EEOC Denial of Mot. for Recons. of First EEO
Compl. at 001468. His final reconsideration request was denied on October 31,
2013. Id. at 001469. At that time, Bailey was informed that he had 90 calendar days
to file a civil action. Id. (“You have the right to file a civil action in an appropriate
United States District Court within ninety (90) calendar days from the date that
you receive this decision.”); Threadgill v. Moore U.S.A., Inc., 269 F.3d 848, 849-50
(7th Cir. 2001) (“A civil action alleging a Title VII violation must be filed within 90
days of receiving a right-to-sue notice from the EEOC.”); 42 U.S.C. § 2000e-5(f)(1).
But Bailey did not file his complaint in this action until October 7, 2014, almost one
year later. R. 1. Bailey’s only response to this timing issue is that hostile work
environment claims do not require all prior acts to occur within the statutory time
period, they only require one act to fall within that time period. Pl.’s Resp. Br. at 8.
But while this might be true, see Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 116-17 (2002), as already discussed above, Bailey never sought leave to add a
hostile work environment claim, so that claim has not been properly asserted and
cannot be relied upon to save his claim here. Because Bailey failed to file his
discrimination claim related to this September 2009 incident within the statutorily
imposed limitations period, this particular claim is untimely.
Even if it were timely, Bailey also fails to show that he suffered an adverse
employment action. “An adverse employment action is one that significantly alters
32
the terms and conditions of the employee’s job.” Griffin v. Potter, 356 F.3d 824, 829
(7th Cir. 2004). It “must be materially adverse, not merely an inconvenience or a
change in job responsibilities.” Id. At the very least, a plaintiff “‘must show some
quantitative or qualitative change in the terms or conditions of his employment or
some sort of real harm.’” Chaib v. Ind., 744 F.3d 974, 982 (7th Cir. 2014) (quoting
Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1116-17 (7th Cir. 2009)); Johnson v.
Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003). For instance, a
“materially adverse change” may include “a termination of employment, a demotion
evidenced by a decrease in wage or salary, a less distinguished title, a material loss
of benefits, significantly diminished material responsibilities, or other indices that
might be unique to a particular situation.” Crady v. Liberty Nat’l Bank & Trust Co.,
993 F.2d 132, 136 (7th Cir. 1993).
In this incident, the only discipline Bailey actually faced was a letter of
warning; the original suspension was reduced by the Dispute Resolution Team.
1/08/10 Step B Decision at 000088. But the Seventh Circuit has said that “a letter of
reprimand is not an adverse employment action unless the letter is accompanied by
some other action, such as job loss or demotion.” Krause v. City of LaCrosse, 246
F.3d 995, 1000 (7th Cir. 2001) (emphasis omitted; discussing requirement in
retaliation context); Oest v. Ill. Dep’t of Corr., 240 F.3d 605, 613 (7th Cir. 2001)
(noting that “oral or written reprimands” do not “implicat[e] … ‘tangible job
consequences’” that provide “an independent basis of liability under Title VII” in
33
discrimination context)13; see also Whittaker v. N. Ill. Univ., 424 F.3d 640, 648 (7th
Cir. 2005). This remains the case even under a progressive discipline system like
the one used by the Postal Service. Oest, 240 F.3d at 613 (“Nor do we believe that
the … reprimands received by Ms. Oest under the Department’s progressive
discipline system [were] … sufficient[] … to constitute an independent basis of
liability under Title VII.” (emphasis added)). Because Bailey has not pointed to any
tangible job consequences resulting from his letter of warning, Bailey has failed to
show he suffered an adverse employment action. The only potential tangible job
consequence Bailey faced as a result of this incident was lost wages from being sent
home early. Whittaker, 424 F.3d at 647-48 (adverse job action may include “loss or
reduction of pay”). But Bailey does not dispute that he ultimately received a full
day’s pay for September 1, 2009, pursuant to the Dispute Resolution Team’s
decision. DSOF ¶ 13; 1/08/10 Step B Decision at 000090. And while there was likely
a lag between when Bailey should have received his pay for that day and when he
ultimately received it, Bailey does not allege any sort of tangible hardship resulting
from this delay. So this is another reason, aside from untimeliness, to grant
summary judgment against the September 1, 2009 claim.
13In
Ortiz v. Werner Enterprises, Inc., — F.3d —, 2016 WL 4411434 (7th Cir. Aug. 19,
2016), the Seventh Circuit overruled Oest, but only “to the extent that [it] insist[ed] on the
use of the direct-and-indirect framework” to prove discrimination. 2016 WL 4411434, at *5.
As noted earlier, the Seventh Circuit made clear that Ortiz in no way concerned the
McDonnell Douglas burden-shifting framework established by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Id. So, the only portion of Oest that
the Court relies on here is that portion analyzing the plaintiff’s claim under the McDonnell
Douglas framework, which was not overruled by the Seventh Circuit and is still good law.
Oest, 240 F.3d at 612-615 (discussing plaintiff’s claim “under the familiar … burdenshifting approach”).
34
2. June 30, 2011 Incident
Bailey next claims that he was discriminated against on June 30, 2011, when
he was issued a letter of warning, which was later reduced to a job discussion, for
leaving deliverable mail on empty postal equipment. Am. Compl. ¶¶ 17-19; DSOF
¶¶ 19, 21. There are several problems with this claim. First, Bailey has again failed
to show that he suffered an adverse employment action. As discussed above, “[a]n
adverse employment action is one that significantly alters the terms and conditions
of the employee’s job.” Griffin, 356 F.3d at 829. In the case of a reprimand or
negative performance evaluation, the discrimination must lead to some tangible job
consequence. Lucas v. Chi. Transit Auth., 367 F.3d 714, 731 (7th Cir. 2004) (“There
must be some tangible job consequence accompanying the reprimand to rise to the
level of a material adverse employment action.”). Here, the only consequence Bailey
faced for leaving deliverable mail behind was a job discussion. DSOF ¶ 21; 11/22/11
Step B Decision at 000323-324. But a job discussion is not considered discipline by
the Postal Service. JCAM Art. 16.1 at 007906 (“[Job] discussions are not considered
discipline and are not grievable.”). Nor is it noted in an employee’s personnel file so
as to potentially impact future discipline under the Postal Service’s progressive
discipline system, even if a potential impact under a progressive discipline system
could qualify as an adverse employment action. Id. (“[N]o notation or other
information pertaining to such [job] discussion shall be included in the employee’s
personnel folder.”). Because Bailey has not shown that the Postal Service’s actions
caused any sort of real harm to his compensation, terms of employment, benefits, or
35
privileges, Bailey has failed to show he suffered an adverse employment action.
Whittaker, 424 F.3d at 648 (explaining that reprimands that lead to “ineligibility for
job benefits like promotion, transfer to a favorable location, or an advantageous
increase in responsibilities” could be adverse actions); Sweeney v. West, 149 F.3d
550, 556-57 (7th Cir. 1998) (concluding that “two counseling statements”
admonishing employee to improve were not materially adverse actions in retaliation
context where employee had not pointed to any immediate consequence of the
reprimand such as eligibility for promotion, transfer to a favorable location, or
something similar); Lollis v. Donahoe, 2012 WL 33005, at *5 (N.D. Ill. Jan. 6, 2012)
(in retaliation context, noting that “[t]he pre-disciplinary interview is not an
adverse employment action as a matter of law”).
Bailey also fails to show that a similarly situated person outside his protected
class was treated more favorably than he was. Bailey points only to Rosa Martinez
(female and Hispanic). DSOF ¶ 59; Pl.’s Suppl. Discovery Resp. Ltr. at 2; Pl.’s Resp.
Br. at 14-15. Martinez was similarly disciplined for failing to perform her duties as
assigned when deliverable mail was found in her mail truck. R. 39, Exh. 54,
Martinez 7/09/11 Notice of Suspension. Several pieces of mail had slipped in
between the window and door of Martinez’s postal truck; the mail was discovered
after the door was removed during repairs.14 Id.; R. 39, Exh. 52, Collins 2013 EEO
14Bailey
challenges these facts; he claims that at the time mail was allegedly found
in Martinez’s truck, “postal employees were using LLV trucks, [which had] no such door.”
Pl.’s Resp. Br. at 14; PSOF ¶ 38. But even if true, Bailey does not offer any evidence which
would suggest that Martinez was not issued the suspension described in the suspension
notice provided by the Postal Service for this truck incident, see Martinez 7/09/11 Notice of
Suspension.
36
Aff. ¶ 42; R. 39, Exh. 53, Puri 2013 EEO Aff. ¶ 40. Martinez was issued a seven-day
suspension for this incident, Martinez 7/09/11 Notice of Suspension, which Bailey
asserts was later reduced to a job discussion (although Bailey fails to attach the
cited exhibit—Exhibit V—supporting this contention so the Court cannot verify it),
see Pl.’s Resp. to DSOF ¶ 60 (referring to Exhibit V).15
The problem for Bailey here is that regardless of whether Martinez was
issued a seven-day suspension or just a job discussion, Bailey cannot show that
Martinez “was treated more favorably” by the Postal Service. Wyninger, 361 F.3d at
978 (emphasis added). At most, Bailey could show that he and Martinez were
treated similarly, as Bailey too ultimately received a job discussion. 11/22/11 Step B
Decision at 000323-324. But receiving equal treatment is not the same as receiving
less favorable treatment than the proposed comparator. Bailey separately suggests
that because his discipline was not reduced until Step B of the grievance process,
whereas Martinez’s was supposedly reduced during informal Step A, his
punishment was somehow harsher or dissimilar. Pl.’s Resp. Br. at 14; Pl.’s Resp. to
DSOF ¶ 60; PSOF ¶ 39. Again, Bailey fails to attach any exhibit which shows that
Martinez’s discipline was reduced during Step A (or at all for that matter), so this
allegation is unsupported. But regardless, even assuming Bailey is correct, this
minor distinction does not alter the result. In both instances, Martinez and Bailey
15Bailey
does attach what may be the same exhibit to his statement of material facts.
R. 48, Exh. 12, Martinez Form 8190; see also PSOF ¶ 39. But that exhibit is only a page and
does not mention Martinez’s suspension being reduced to a job discussion. See generally
Martinez Form 8190. So it does not provide support for Bailey’s allegation either. The
Postal Service, for its part, disputes that Martinez’s suspension was reduced. Def.’s Resp. to
PSOF ¶ 39.
37
would have been required to go through the grievance process, and in both
instances their discipline would have been reduced to a job discussion. The slight
distinction between when in the grievance process their discipline would have been
reduced does not alter the fact that both ultimately faced similar discipline for a
similar infraction. So Bailey might not have liked how far he had to proceed in the
grievance process, but he cannot show that he faced worse treatment than
Martinez. Indeed, a reasonable factfinder could conclude that he was actually
treated more favorably. Def.’s Resp. to PSOF ¶ 39 (asserting Martinez’s suspension
was never reduced). See Nichols v. S. Ill. Univ.-Edwardsville, 510 F.3d 772, 780 (7th
Cir. 2007) (“not everything that makes an employee unhappy is an actionable
adverse action” (internal quotation marks and citation omitted)).
Finally, even if the Court were to assume that Bailey could establish a prima
facie case of discrimination here, Bailey fails to show that the Postal Service’s
stated reason for issuing the discipline was a pretext for discrimination. Once a
prima facie case of discrimination is shown, the burden shifts to the defendant to
articulate a legitimate, non-invidious reason for its action. Hughes v. Brown, 20
F.3d 745, 746 (7th Cir. 1994); Atanus, 520 F.3d at 672. If the defendant articulates
such a reason, then the burden shifts back to the plaintiff to show that the stated
reason is a pretext for discrimination. Id.; Essex v. United Parcel Serv., Inc., 111
F.3d 1304, 1309 (7th Cir. 1997). The plaintiff must present evidence showing “that a
discriminatory reason motivated the employer’s decision,” or that the defendant
could not have “honestly believed its proffered reason.” Id. at 1310; Russell v. Acme-
38
Evans Co., 51 F.3d 64, 68 (7th Cir. 1995) (explaining that pretext means more than
a “mistake,” “[i]t means a lie, specifically a phony reason for some action”); Hughes,
20 F.3d at 747 (“An employee may establish pretext by proving … defendant’s
explanation had no basis in fact, or … the explanation was not the ‘real’ reason, or
… at least the reason stated was insufficient to warrant the discharge.” (internal
quotation marks and citation omitted)).
In this case, Puri stated that she disciplined Bailey after a distribution clerk
told her that several pieces of deliverable mail from Bailey’s route were found in a
tray that was to be returned to the plant with other undeliverable mail. DSOF ¶ 19;
Puri 2012 EEO Dep. 8:20-9:17; Puri 2011 EEO Aff. ¶ A11. Bailey does not offer any
evidence to suggest that the clerk reported things differently or that Puri did not
honestly believe what the clerk reported to her. Nor does Bailey suggest that
misplacing deliverable mail is not a proper reason to issue discipline. See Cabrera v.
Legal Assistance Found. of Chi., 2002 WL 31324051, at *4 (N.D. Ill. Oct. 17, 2002)
(rejecting pretext argument on similar grounds). Bailey simply states that
“Martinez’s more favorable treatment evidences pretext.” Pl.’s Resp. Br. at 14. But
while evidence of differential treatment is an accepted means of showing pretext,
see McDonnell Douglas Corp., 411 U.S. at 804; Essex, 111 F.3d at 1311; Morrow v.
Wal-Mart Stores, Inc., 152 F.3d 559, 561 (7th Cir. 1998); Cabrera, 2002 WL
31324051, at *5, as already discussed, Bailey has not shown that he was treated
any differently than Martinez (or any other similarly situated employee). Because
no reasonable juror could conclude that Martinez was treated better than Bailey
39
(indeed, it is possible that a juror could actually conclude that Bailey was treated
better), Martinez’s incident does not give rise to a reasonable inference of pretext.
The Court grants summary judgment to the Postal Service on this claim.
3. Incidents on August 4, 2011, August 9, 2012, and February 16, 2013
Next, Bailey asserts he was discriminated against when he was disciplined
for leaving deliverable mail in his UBBM bin. Am. Compl. ¶¶ 20-21, 27, 29-30, 3638, 40; DSOF ¶¶ 22, 32, 40. This occurred on three separate occasions. Because
these claims are so similar, the Court discusses them together.
The first incident occurred on August 4, 2011, when Collins issued Bailey a
seven-day suspension after a clerk informed him that deliverable mail was found in
Bailey’s UBBM bin; that suspension was later reduced to a letter of warning. DSOF
¶¶ 22, 24; 8/04/11 Notice of Suspension; 11/21/11 Step B Decision at 000330. Bailey
faces a similar problem with this claim as he did in his prior claim—he is unable to
establish that a similarly situated individual outside his protected class was treated
more favorably. Bailey points to PTF-carriers LaTanya Rogers (female and AfricanAmerican) and Rosa Martinez (female and Hispanic). DSOF ¶ 62; Pl.’s Suppl.
Discovery Resp. Ltr. at 2. Bailey contends that Rogers was treated more favorably
than he was when deliverable mail was found in her UBBM bin on May 12, 2012
and on May 21, 2012. DSOF ¶ 62; Pl.’s Suppl. Discovery Resp. Ltr. at 2; R. 39, Exh.
55, Rogers 6/07/12 Ltr. of Warning at 003073. But like Bailey, Rogers received a
letter of warning for the failures. Rogers 6/07/12 Ltr. of Warning at 003073. So
40
Bailey has not shown that she was treated more favorably than he was.16 And as
discussed above, Rosa Martinez was issued a seven-day suspension for leaving
deliverable mail in her postal truck (remember, Bailey failed to establish that
Martinez’s suspension was reduced to a job discussion). Martinez 7/09/11 Notice of
Suspension. So there too, Bailey is unable to show that another carrier was treated
better.17
Bailey also fails to show that the Postal Service’s stated reason for
disciplining him was pretextual. According to Bailey, this incident was “clearly [the
Postal Service’s] way of attempting to terminate [him].” Pl.’s Resp. Br. at 15. But
Bailey again fails to present any evidence to suggest that the clerk who informed
Collins about this incident reported anything different or that Collins did not
honestly believe what the clerk told him. Nor does Bailey assert that misplacing
deliverable mail is not a matter worthy of discipline. Cabrera, 2002 WL 31324051,
at *4 (rejecting pretext argument on similar grounds).
Bailey also attempts to show pretext by explaining that he could not have
engaged in this alleged misconduct because carriers cannot dispose of UBBM. Pl.’s
Resp. Br. at 15. Bailey explains that the Postal Service’s “Management Instruction
Manual” defines UBBM as “live mail” until it has been picked up by the mill or
16Bailey
makes no argument related to Rogers having mail found in her UBBM bin
on two separate occasions six days apart.
17There is additional evidence to suggest that Martinez might not be similarly
situated to Bailey. The Postal Service asserts that in Martinez’s case (unlike in Bailey’s
case), the Postal Service could not be certain whether she was the one who misplaced the
mail because other carriers had used her truck during the time period in which the mail
would have fallen. DSOF ¶ 60; Collins 2013 EEO Aff. ¶¶ 42-43 (“It could not be established
who or when the mail was left in her truck … .”); Puri 2013 EEO Aff. ¶¶ 40-41 (stating the
same).
41
broker for final “disposal.” Id. (citing PSOF ¶ 5). As a result, says Bailey, carriers do
not dispose of UBBM even when they place it in their UBBM bins, so he could not
have engaged in this misconduct. Id. But Bailey fails to actually attach this manual
to his statement of facts, so the Court has no way of verifying whether this is in fact
the post office’s policy.18 The Postal Service suggests that it is not. Def.’s Reply Br.
at 11. But even assuming that the manual says what Bailey alleges it does, Bailey’s
argument still fails to show that the Postal Service’s stated reason for disciplining
him was pretextual. For one, Bailey’s argument rests on a mere technicality.
Although the mail found in Bailey’s UBBM tub may have technically been “live
mail,” for all intents and purposes, it was sorted as discarded mail or UBBM. This
minor technicality does little to discredit the Postal Service’s stated reason for
disciplining him. Bailey’s assertion that carriers do not discard mail is further
weakened by evidence suggesting that part of a carriers’ role is to identify UBBM.
See Puri 2013 EEO Decl. ¶ 5 (“At the Wood Dale Post Office, while a carrier is
casing his/her route, it is his/her responsibility to identify UBBM (as mail that will
be disposed of as waste) in a UBBM tub at the carrier’s case.” (citing City Delivery
Carriers Duties and Responsibilities, Handbook M-41)); see also Puri 2011 EEO Aff.
¶ A15 (M-41 handbook excerpt); R. 47, Exh. M, Puri 2013 Dep. 17:9-18:7 (explaining
that carriers are assigned red color coded tubs to put undeliverable standard mail
in, which is then verified by a clerk and sent to the plant to be discarded). Bailey
does not contest this. Accordingly, this alleged statement in the Postal Service’s
18The
only cite Bailey provides that actually supports this fact is Watson’s affidavit.
See PSOF ¶ 5. But as already discussed, that affidavit is not properly before this Court.
42
manual, even when viewed in Bailey’s favor, does not discredit Collins’ stated
reason for disciplining Bailey.
Bailey also explains that there is no official post office policy on disciplining
carriers for placing deliverable mail in their UBBM bin, which he suggests shows
that the Postal Service’s purported reason was pretextual. Pl.’s Resp. Br. at 16. But
contrary to Bailey’s contention, this fact does not raise an inference of pretext. It
makes sense that the Postal Service would want to discipline letter carriers for not
properly sorting through the mail for their assigned routes. The Postal Service is in
the business of delivering mail; improper sorting prevents the Postal Service from
doing its job properly. Presumably, this is why the Postal Service has adopted what
appears to be an informal policy of disciplining carriers who fail to properly sort
their mail. Collins 2015 Dep. 10:17-18 (“From my recollection, mail being disposed
of in a UBBM is a violation.”); id. 13:17-21 (“[A]s a carrier for 20 years, I do know
that one of our jobs is not to discard first class mail in the UBBM tub, because the
UBBM is mail that is going to be discarded in the trash.”). Bailey fails to present
any evidence to cast doubt on whether such a disciplinary practice exists; indeed,
the Postal Service’s decision to discipline Bailey, Rogers, and Martinez for this type
of conduct supports the existence of such a policy. 8/04/11 Notice of Suspension;
Rogers 6/07/12 Ltr. of Warning; Martinez 7/09/11 Notice of Suspension. Cf. Sarsha
v. Sears, Roebuck & Co., 3 F.3d 1035, 1040 (7th Cir. 1993) (concluding that material
fact existed where there was conflicting testimony about the existence of a no-
43
interoffice-dating policy). The lack of a formal UBBM policy does not suggest pretext
in this context. Bailey’s claim here fails.
The second incident occurred on August 9, 2012, when Collins issued Bailey a
seven-day suspension after a clerk again found deliverable mail in Bailey’s UBBM
bin. DSOF ¶ 32; 8/09/12 Notice of Suspension. This suspension was not reduced.
Bailey runs into similar pretext problem with this incident—he fails to present any
evidence to suggest that the clerk reported something different to Collins, that
Collins did not honestly believe what the clerk told him, or that this was not an
issue worthy of discipline. Cabrera, 2002 WL 31324051, at *4 (rejecting pretext
argument on similar grounds). The only new challenge Bailey makes is to the Postal
Service’s contention that Bailey was disciplined, in part, because he refused to
discuss the incident with Collins. Pl.’s Resp. Br. at 16-17; Def.’s Br. at 19 (“Collins
disciplined Bailey because … [w]hen Collins tried to discuss the UBBM mail with
Bailey, he refused to discuss it, clocked out, and left the facility.”). According to
Bailey, he simply asked for union representation when Collins sought to discuss the
incident with him, but because there was no union representative available at that
time, the meeting had to be rescheduled. Pl.’s Resp. to DSOF ¶ 33; Bailey 2013 EEO
Dep. 30:16-31:4; 8/09/12 Notice of Suspension at 000530. Bailey asserts that he
never refused to discuss the incident with Collins, as the Postal Service alleges, so
the Postal Service’s stated reason for issuing this discipline must be pretextual. Pl.’s
Resp. Br. at 16-17. But this argument is unavailing. To be sure, there does appear
to be a genuine dispute over Bailey’s reaction when Collins approached him. Bailey
44
asserts he simply requested union representation and that Collins became upset,
Bailey 2013 EEO Dep. 31:1-13, while Collins asserts that Bailey became agitated
and started yelling, Collins 2013 EEO Decl. ¶ 8; 8/09/12 Notice of Suspension at
000530. But this fact is not material. To establish pretext, Bailey must show that
the Postal Service’s articulated reason for the discipline—a clerk finding deliverable
mail in Bailey’s UBBM bin—had no basis in fact, did not actually motivate the
Postal Service’s decision, or was insufficient to motivate the action. Hughes, 20 F.3d
at 746. Bailey has failed to do this. He has failed to specifically refute the Postal
Service’s contention that a clerk told Collins about deliverable mail being in Bailey’s
UBBM bin, or its contention that Collins believed the clerk. He has also failed to
show that the Postal Service’s decision to discipline him for this incident was so
unreasonable that it must be pretext. As already discussed, part of a letter carrier’s
job is to properly identify undeliverable mail. Collins 2015 Dep. 13:15-21, 15:14-18.
Disciplining Bailey for failing to do his job properly does not show pretext. Simply
put, no reasonable factfinder would find “‘the [Postal Service’s] proffered
explanation is unworthy of credence.’” Blise v. Antaramian, 409 F.3d 861, 867 (7th
Cir. 2005) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981)).
Finally, turning to the last UBBM incident, in December 2012, Collins issued
Bailey a notice of removal after a clerk told Collins that deliverable mail was again
found in Bailey’s UBBM bin. 12/22/12 Notice of Removal; DSOF ¶ 40. That notice
was later rescinded due to a typographical error and on February 16, 2013, Collins
45
issued Bailey a 14-day suspension instead. 2/08/13 Rescission of Notice of Removal;
2/16/13 Notice of Suspension. Bailey again fails to show that a similarly situated
employee—he still only points to Rogers and Martinez—was treated more favorably,
Pl.’s Suppl. Discovery Resp. Ltr. at 2. This was the third time Bailey was disciplined
for leaving deliverable mail in his UBBM bin. Rogers appears to have been
disciplined only twice, see Rogers 6/07/12 Ltr. of Warning at 003073 (noting that
deliverable mail was found in Rogers’ UBBM bin on May 15, 2012 and again on May
21, 2012), and Martinez just once, see Martinez 7/09/11 Notice of Suspension.
Because the Postal Service employs a progressive discipline system, JCAM Art. 16.1
at 007904, it follows that Bailey would face harsher punishment for his incident
than Rogers or Martinez did for theirs. Indeed, Bailey’s notice of suspension
specifically references the prior discipline he received in August 2012 for leaving
deliverable mail in his UBBM bin.19 2/16/13 Notice of Suspension at 000889
(considering Bailey’s 8/09/12 seven-day suspension). These differing performance
histories make the comparison between Bailey and Rogers or Martinez more
difficult and less useful. See Coleman v. Donahoe, 667 F.3d 835, 846 (7th Cir. 2012)
(stating that the similarly situated requirement is intended to “eliminate other
possible explanatory variables, such as differing roles, performance histories, or
decision-making personnel, which helps isolate the critical independent variable—
discriminatory animus” (emphasis added; internal quotation marks omitted)).
19It
is worth noting that because Bailey’s notice of suspension specifically indicates
that Bailey’s prior suspension was taken into account, a persuasive argument could be
made that Bailey’s suspensions are adverse employment actions even though they are
working suspensions. The Postal Service disputes this point. See Def.’s Br. at 10.
46
What’s more, Bailey still fails to show that the Postal Service’s purported
reason for disciplining him was a pretext for discrimination. Bailey contends that
this was the first time that Collins had ever rescinded and reissued discipline. Pl.’s
Resp. Br. at 17-18; Collins 2015 Dep. 92:15-95:10. But that fact does not show that
Collins’s stated reason for issuing the discipline—a clerk finding deliverable mail in
Bailey’s UBBM bin for a third time—was a lie or lacked any basis in fact. Nor does
the fact that Collins’ rescission letter might not have precisely followed post office
procedure (at least not without some other evidence of discrimination) give enough
grounds for a reasonable factfinder to find pretext here. Id. at 17; Kipnis v. Baram,
949 F. Supp. 618, 623 (N.D. Ill. 1996) (explaining that “the misapplication of normal
procedures [related to EEO complaints] is not sufficient to support a Title VII claim
(citing Friedel v. City of Madison, 832 F.2d 965, 974 (7th Cir. 1987)). This evidence
fails to cast doubt on Collins stated reason for disciplining Bailey.
Finally, even when these three incidents are considered together, Bailey still
fails to show that a reasonable factfinder could conclude that he was disciplined
because of his race or gender. Bailey argues he never left any deliverable mail in his
UBBM tub. But he fails to present any evidence to suggest that in each instance,
the distribution clerk did not find the mail as suggested, that the clerk did not
report it to Collins, or that Collins honestly did not believe the clerk. He also does
not contest that it is part of a carrier’s job to sort mail, including UBBM mail. As
discussed earlier, although there might not be a formal policy in place for
disciplining carriers for misplacing deliverable mail, the Postal Service’s decision to
47
discipline carriers for this does not raise an inference of pretext. The discipline
Bailey received also grew increasingly more severe with each incident—warning
letter, seven-day suspension, 14-day suspension—as it is supposed to under the
Postal Service’s progressive discipline system. JCAM Art. 16.1 (requiring
supervisors to “issue discipline in a ‘progressive’ fashion, issuing lesser discipline
(e.g., a letter of warning) for a first offense and a pattern of increasingly severe
discipline for succeeding offenses (e.g., short suspension, long suspension … )). As a
whole, this evidence fails to raise a genuine issue of material fact as to whether
Bailey was discriminated against in these three instances. Accordingly, the Court
grants summary judgment to the Postal Service on all three of Bailey’s UBBM
claims.
4. Incident on August 25, 2011
Bailey next claims that he was discriminated against when he was only
allowed to work 5.15 hours on August 25, 2011, despite still being on his temporary
hold-down assignment, while another PTF-carrier and two transitional employees—
none of whom were African-American males—were allowed to work full days. Am.
Compl. ¶ 22; DSOF ¶¶ 25-26. On this particular claim, Bailey has enough
evidence—though barely and only because he is given the benefit of all reasonable
inferences at this stage, see Matsushita Elec. Indus. Co., Ltd., 475 U.S. at 587—to
survive summary judgment.
For this claim, the Postal Service does not contest the first two elements of
the McDonnell Douglas framework: (1) that Bailey is a member of a protected class
48
and (2) that he performed his job to the Postal Service’s legitimate expectations. See
generally Def.’s Br. at 7, 9; Atanus, 520 F.3d at 672-73. This then leaves the last two
elements: (3) whether Bailey suffered an adverse employment action and (4)
whether similarly situated individuals outside his protected class were treated more
favorably. Id. Although the Postal Service challenges these two prongs, Bailey has
presented enough evidence to satisfy them.
First, a reasonable juror could conclude that Bailey suffered an adverse
employment action. Puri’s decision to split Bailey’s route led to Bailey being sent
home about three hours early that day. Because Bailey did not work a full day,
presumably, he did not receive a full day’s worth of wages. These lost wages are of
course real and tangible. In addition, because Bailey was still on his hold-down
assignment at that time, see Collins 2012 EEO Dep. 34:7-9 (noting that Bailey was
still on hold-down), he was also entitled to work his full shift that day. See JCAM
Art. 41.2B.3-B.5 at 008024 (“An employee who successfully opts for a hold-down
assignment is said to be guaranteed the right to work the hours of duty and
scheduled days of the regular carrier.”); id. (“Employees on hold-downs are entitled
to work the regularly scheduled days and the daily hours of duty of the
assignment.”). Puri’s decision to split Bailey’s route could also be viewed as
infringing that right. Bailey’s reduced pay, coupled with the loss of his right to work
his hold-down shift for that day, constitutes real harm. Griffin, 356 F.3d at 830
(denial of a raise can constitute a materially adverse employment action if that
raise was “an expected element of the employee’s salary and its denial cuts the
49
salary in real terms”); Duncan v. Thorek Mem’l Hosp., 784 F. Supp. 2d 910, 919
(N.D. Ill. 2011) (finding that demotion from full-time to part-time constituted
adverse employment action where plaintiff suffered lost wages from working fewer
hours and lost several vacation days). See also Russell v. Bd. of Trs. of the Univ. of
Ill. at Chi., 243 F.3d 336, 341 (7th Cir. 2001) (stating that a five-day suspension was
materially adverse because it was a formal disciplinary action and the employee lost
a week’s pay); see also Crady, 993 F.2d at 136 (“A materially adverse change might
be indicated by … a demotion … , a less distinguished title, a material loss of
benefits, significantly diminished material responsibilities, or other indices that
might be unique to a particular situation.”). This evidence is sufficient to show that
Bailey suffered an adverse employment action.
The Postal Service, for its part, tries to recast Bailey’s argument by asserting
that a court is not to act as a “super-personnel department” and that employers may
schedule employee work hours without running afoul of Title VII. Def.’s Br. at 11
(quoting Beverly v. Kaupas, 2008 WL 624045, at *14 (N.D. Ill. Feb. 29, 2008) and
Cardoso v. Robert Bosch Corp., 427 F.3d 429, 435 (7th Cir. 2005) (holding that
inconvenient work hours do not constitute an adverse employment action)). That is
of course generally true. But the Postal Service ignores the fact that Bailey was on a
hold-down assignment in August 2011, and Rogers was not. Collins 2012 EEO Dep.
34:7-9. Viewing the evidence in Bailey’s favor, this gave Bailey the right to work the
days and hours of his bid assignment. JCAM Art. 41.2B.3-B.5 at 008024. Rogers did
not enjoy this same privilege, nor did Barszczewski or Stewart. So more than just a
50
disagreement with hours is present here. Bailey has shown that he suffered an
adverse employment action.
Bailey has also shown that he received different, less favorable treatment
that someone outside his protected class. Bailey offers evidence showing that PTFcarrier LaTanya Rogers (a woman) was allowed to work 8.98 hours that day. Pl.’s
Resp. to DSOF ¶¶ 25-26; Hours Analysis at 000339, 000342; Bailey Dep. 42:25-43:2.
Rogers was not on a hold-down assignment at that time. Collins 2012 EEO Dep.
34:17-19. Bailey also offers evidence showing that transitional employees Rafael
Barszczewski (male and Caucasian) and Debra Stewart (female) were allowed to
work 8.25 hours and 8.00 hours that day, respectively. Hours Analysis at 000339,
000342. What’s more, there is evidence demonstrating that PTF-carriers on holddown assignments are considered more senior then either PTF-carriers not on bid
assignment or transitional employees. Collins 2015 Dep. 41:6-15, 117:11-118:3; Puri
2015 Dep. 22:9-21. Thus, it would appear that Bailey should have actually had
priority over these other employees in working a full day on August 25. Puri 2015
Dep. 69:5-8 (“Q. Can work be taken from a PTF on a Hold-Down Assignment and
given to PTFs who are not on Hold-Down Assignments? A. No.”). So Rogers,
Barszczewski, and Stewart were more junior for purposes of the hours allotment,
and this evidence is sufficient to show that Bailey was treated less favorably than
others outside of his protected class. Bailey has established a prima facie case of
discrimination.
51
In response, the Postal Service asserts that it had a legitimate, nondiscriminatory reason for its action. Def.’s Br. at 19; Def.’s Reply Br. at 11-12. It
explains that Puri needed to take work from a PTF-carrier that day because mail
was “light” and full-time carriers needed to be able to work their full eight-hour
days, Puri 2011 EEO Aff. ¶ A25; the Postal Service also explains that Puri decided
to split Bailey’s route rather than another carrier’s because it was more efficient
and would help even-out the weekly hours between Bailey and Rogers, both of
whom where PTF-carriers at the time, id.; Puri 2012 EEO Dep. 43:20-45:14. To cast
doubt on this alleged reason, Bailey points to Collins and Puri’s statements that
PTF-carriers on hold-down assignment are generally viewed as being more senior
than non-hold-down-PTF-carriers and transitional employees. Pl.’s Resp. Br. at 19;
see also Collins 2015 Dep. 117:11-118:3; Puri 2015 Dep. 22:9-21. He also points to
Collins’s statement that in the event a full-time employee needed hours and there
were two PTF-carriers—one on hold-down and one without a hold-down
assignment—he would not send anyone home but would instead reduce both PTFs’
hours. Pl.’s Resp. Br. at 19, Collins 2015 Dep. 37:9-24. And although Bailey does not
point to it, there is also evidence in the record to suggest that Puri knew Bailey was
on a hold-down assignment on August 25. Puri 2012 EEO Dep. 43:20-44:1. Based on
this evidence, a reasonable factfinder could conclude that Puri knew that PTFcarriers with hold-down assignments have priority over work hours, that Puri also
knew Bailey was on a hold-down assignment, and that she purposely disregarded
all of this because of Bailey’s race or gender when she allowed three more junior
52
employees outside of Bailey’s protected class to take several of Bailey’s hours.20 This
evidence is sufficient to cast doubt on the Postal Service’s purported reason for
splitting Bailey’s route, and to raise a genuine issue of material fact as to whether
Bailey was treated less favorably simply because of his race or gender. On balance,
when all reasonable inferences are viewed in Bailey’s favor, Bailey has presented
enough evidence to create a genuine issue of triable fact as to whether Puri’s stated
reason for splitting Bailey’s route on August 25 was a pretext for discrimination.
Bailey’s claim here withstands summary judgment.
5. Incident on September 25, 2012
Bailey next claims discriminatory treatment when he was denied sick leave
on September 25, 2012. DSOF ¶ 34; Am. Compl. ¶¶ 31, 34. Bailey requested sixteen
hours of sick leave for September 24 and September 25, 2012, but he was only
granted eight. DSOF ¶ 34; Pl.’s Resp. to DSOF ¶ 34; Bailey 2015 Aff. ¶ 9. According
to Puri, Bailey was denied sick leave on September 25 because it was his nonscheduled day for Route 4 (Bailey’s temporary hold-down assignment) and Bailey
was already scheduled to work forty hours that week. Puri 2013 EEO Dep. 41:8-16.
20Again,
the Court emphasizes that this conclusion is dictated only when viewing the
evidence in Bailey’s favor. It would also be reasonable for a juror to conclude there was no
discrimination, based on the evidence that Puri really did believe that she needed to take
hours from a PTF-carrier, that the most efficient way to do that was to split Bailey’s route,
and that Bailey agreed to split his route. Puri 2012 EEO Dep. 44:20-45:14. Both Collins and
Puri also stated that the Wood Dale Post Office had a verbal agreement with the union
steward to equalize PTF-carrier hours. Collins 2012 EEO Dep. 39:10-15; Puri 2012 EEO
Dep. 46:21-24. And even if Puri mistakenly thought she could alter employee hours, the
ultimate “inquiry is not whether the reason for the [action] was a correct business judgment
but whether the decisionmaker[] honestly acted on that reason.” Bahl, 115 F.3d at 1291;
Essex, 111 F.3d at 1310 (“The fact that the employer was mistaken or based its decision on
bad policy, or even just plain stupidity, goes nowhere as evidence that the proffered
explanation is pretextual.”). Those principles will ultimately govern the jury’s decision.
53
Like many other claims he has proposed, Bailey again fails to make out a
prima facie case of discrimination on this one. Specifically, he fails to show that a
similarly situated postal worker not in his protected class (male or African
American) was treated more favorably than he was by the Postal Service. Bailey
again points to Rogers (female and African American), who he claims was similarly
situated to him and treated more favorably than he was when she requested sick
leave on October 1 and October 2, 2012. DSOF ¶ 64; Pl.’s Suppl. Discovery Resp.
Ltr. at 1-2. Like Bailey, Rogers was a PTF-carrier in October 2012 when she
requested sick leave. Puri 2013 EEO Dep. 42:15-43:1. Bailey argues that although
October 2 was a non-scheduled day for Rogers on her assigned route, id. 43:11-13;
Puri 2013 EEO Decl. ¶ 15, just like September 25 was for Bailey, all sixteen hours
of Rogers’ requested leave was approved, Pl.’s Resp. to DSOF ¶¶ 65-66; Pl.’s Resp.
Br. at 21.
It is true that Rogers initially received approval for sixteen hours of sick
leave for October 1 and October 2, 2012. See Puri 2013 EEO Decl. ¶ 15. But Bailey
leaves out several critical facts that are fatal to his claim. On the day that Rogers
requested sick leave, Puri was out of the office and a substitute manager was
working in her place. Id. That substitute manager was the one who approved
Rogers’ sixteen hours of leave, which resulted in Rogers being paid for a
combination of 52.84 hours of work and leave for that service week. Id. But when
Puri returned and realized what had happened, she issued Rogers a pay adjustment
taking back the eight hours of sick leave given to her on October 2, her non-
54
scheduled day for her assigned route. Id. ¶¶ 16-18; R. 39, Exh. 56, Invoice to
LaTanya Rogers. So like Bailey, Rogers was only paid for eight hours of sick leave,
and she was denied sick leave on the non-scheduled day for her assigned route.
Bailey contends that Rogers was still paid for those eight hours because the
invoice deducting the incremental eight hours from her pay cryptically states that
“8.00 hours of sick leave has been changed to work hours.” Invoice to LaTanya
Rogers at 004130; Pl.’s Resp. to DSOF ¶¶ 65-66. But it is not clear what this
statement even means, and more importantly, Bailey fails to provide any actual
evidence showing that Rogers was indeed repaid for those eight hours of leave that
she had to pay back. Apparently, Bailey did not pursue this further in discovery.
Without some evidence that a reasonable factfinder can rely on to find that the
Postal Service repaid Rogers for eight work hours on October 2, 2012, Bailey fails to
show that Rogers was treated more favorably than he was. In fact, it appears Puri
treated them exactly the same.
Bailey also argues that another carrier, Rosa Villareal (female and Hispanic),
was treated more favorably with regard to sick leave. Pl.’s Resp. Br. at 21. But
Bailey runs into problems here too. For one, it does not appear that Bailey
identified Villareal during discovery as a similarly situated individual for this
particular incident. Pl.’s Suppl. Discovery Resp. Ltr. at 2 (discussing Villareal only
in conjunction with a different incident). Bailey also fails to present evidence
showing that Villareal’s leave was similarly subjected to Puri’s approval. See
Coleman, 667 F.3d at 835 (identifying different “decision-making personnel” as a
55
reason why employees may not be similarly situated). The Postal Service asserts
that Bailey’s sick leave was denied because of how Puri interpreted the relevant
policy in the employee manual. Puri 2013 EEO Dep. 41:8-16; Employee Manual at
007787. If Puri did not similarly approve Villareal’s leave, then this evidence would
do little to show that Puri did not honestly believe that her interpretation of the
policy was correct. The evidence related to this incident could not lead a reasonable
juror to conclude that Bailey was discriminated against on account of his race or
gender.
6. Incident on October 23, 2012
Bailey contends that he was discriminated against when he was issued a 14day suspension on October 23, 2012 for having three unscheduled absences within a
three-month period. Am. Compl. ¶¶ 32-33; DSOF ¶¶ 37-38. But Bailey again fails to
show that a similarly situated employee not in his protected class was treated more
favorably. Bailey alleges that Dannie Mamparo (male and Asian) and Rosa
Martinez (female and Hispanic) were both treated better than he was even though
their attendance, and in particular, their number of unscheduled absences, were
worse than his in 2012. DSOF ¶ 67; Pl.’s Suppl. Discovery Resp. Ltr. at 2. Martinez
was issued a seven-day suspension for her absences, R. 39, Exh. 57, Martinez
4/02/13 Notice of Suspension, and Mamparo was issued a letter of separation, R. 39,
Exh. 59, Mamparo 7/29/13 Ltr. of Separation at 003148, which was later
withdrawn, R. 47, Exh. X, Mamparo 10/9/13 Step A Decision at 003678.
56
It is true that both Martinez and Mamparo had more unscheduled absences
than Bailey did, and that the punishment they received was less harsh. See
Martinez 4/02/13 Notice of Suspension at 003071 (noting unscheduled absences for
Martinez on August 23-24, 2012, September 18-September 22, 2012, and September
25-October 6, 2012); Mamparo 7/29/13 Ltr. of Separation at 003148 (noting
Mamparo was absent from his official duties from October 2011 through at least
July 2013). But unlike Bailey, both Martinez and Mamparo explained their
absences. Martinez’s absences occurred around the same time her daughter was
kidnapped and assaulted. DSOF ¶ 68; R. 39, Exh. 38, Collins 2014 EEO Dep. 47:2348:24. And although Bailey contends that “[t]here is no independent evidence that
supports the alleged reasons for Martinez’s absences,” Pl.’s Resp. to DSOF ¶ 68,
Bailey himself stated in his deposition that Martinez told him that her daughter
was kidnapped and assaulted around the relevant time, Bailey Dep. 61:20-23 (“Q.
Were you aware that Ms. Martinez’s daughter was kidnapped and assaulted during
that period which caused her to miss work? A. She told me that.”). Mamparo
likewise
offered
an
explanation
for
his
absence
by
submitting
medical
documentation. DSOF ¶ 69; Puri 2013 EEO Decl. ¶ 50; R. 39, Exh. 58, Puri 2015
Dep. 62:8-16. This is in contrast to Bailey who did not provide any explanation for
his absences. Pl.’s Resp. to DSOF ¶ 38. Bailey also makes much of the fact that
Mamparo was absent for over a year without allegedly receiving appropriate
approval and without any disciplinary consequences. Pl.’s Resp. Br. at 22; Pl.’s
Resp. to DSOF ¶ 69. But even so, Mamparo’s situation is still too distinct from
57
Bailey’s to allow for a meaningful comparison or to show that Bailey “was singled
out for worse treatment.” Crawford v. Ind. Harbor Belt. R.R. Co., 461 F.3d 844, 846
(7th Cir. 2006). Mamparo was in a different role—he was a full-time carrier—and
his medical issues offer a plausible explanation for his differing treatment.
Coleman, 667 F.3d at 847 (for similarly situated requirement, generally, “plaintiff
must at least show that the comparators (1) dealt with the same supervisor, (2)
were subject to the same standards, and (3) engaged in similar conduct without
such differentiating or mitigating circumstances as would distinguish their conduct
or the employer’s treatment of them”). Bailey has failed to show that Martinez or
Mamparo were similarly situated and treated more favorably.
Finally, Bailey also notes that there is no rule at the Wood Dale post office
requiring disciplinary action for three or more unscheduled absences in a threemonth period. Pl.’s Resp. Br. at 22. Presumably, Bailey is suggesting that this
shows that the Postal Service’s alleged reason for disciplining him was nothing
more than a lie. But there is evidence that this policy of disciplining carriers for
three unscheduled absences in a three-month period is an unwritten local policy at
the Wood Dale Post Office. Puri 2015 Dep. 33:22-34:9. And the adoption of such a
practice is not so unusual as to suggest pretext. It makes sense that the Postal
Service would want to implement a policy like this to discourage unscheduled
absences among its carriers. Bailey has failed to cast doubt on the Postal Service’s
stated reason for disciplining him. Because Bailey has failed to make out a prima
facie case of discrimination here, or to show that the Postal Service’s stated reason
58
for disciplining him was pretextual, the Court grants summary judgment to the
Postal Service on this claim.
7. Delay in Conversion to Full-Time Carrier
Bailey next contends that he was discriminated against when Puri refused to
convert him to a full-time carrier until November 2013. Am. Compl. ¶ 47; DSOF
¶¶ 46, 49. Bailey argues that he should have been converted to a full-time carrier in
January 2013, when Rosa Villareal (female and Hispanic) was converted to a T6
swing position, a full-time carrier position. Pl.’s Third Resp. to Def.’s Interrog. at 9;
PSOF ¶ 18. According to Puri, Bailey was not converted in January 2013 because a
national moratorium was in effect at that time, which precluded PTF-carriers from
being converted to full-time positions other than T6 swing positions. PSOF ¶¶ 19,
21; Puri 2015 Dep. 41:2-17. Because no T6 swing was available for Bailey at that
time, Puri states that Bailey could not be converted in January 2013. Id. 43:22-44:3.
Bailey disputes this. He contends that in January 2013, there were two fulltime positions available: Carrier Route 4 and a T6 swing position. PSOF ¶ 22;
Bailey Dep. 76:24-77:7. He argues that at that time, Dannie Mamparo had been on
leave from his T6 swing position for over a year. PSOF ¶ 22; Pl.’s Resp. Br. at 22-23.
Bailey contends that when an employee is out for a year or more, they must
relinquish their position. PSOF ¶ 23. So, according to Bailey, Mamparo’s T6 swing
position should have also been available in January 2013, which in turn means that
he and Villareal should have both been converted to full-time carriers at the same
time, as Bailey was next in line. PSOF ¶¶ 22-23; Pl.’s Resp. Br. at 23; Seniority List
59
(listing Villareal right before Bailey). The Postal Service, for its part, disputes much
of Bailey’s position. The Postal Service asserts that only the Route 4 position was
available in January, which went to Villareal. Def.’s Resp. to PSOF ¶ 22. It states
that the T6 swing did not become available until later in 2013, and that as soon as
it was posted, Villareal dropped the Route 4 position and bid on the T6 swing. Id.
After Villarreal was awarded the T6 swing, her vacant Route 4 position was posted
in September 2013.21 Id.
Bailey’s argument here appears to be that Puri and Collins purposely chose
not to post Mamparo’s T6 swing position knowing full well that Bailey would be
next in line for conversion. Pl.’s Resp. Br. at 22-23. Bailey points to a statement
Collins made in his deposition in which he said that he likes to post and fill
positions as soon as they become available. Id. at 23; PSOF ¶ 20; Collins 2015 Dep.
82:24-83:2. He also points to a statement made by Puri in which she said that when
an employee provides medical documentation that they need to be out on extended
leave for two years, their position gets posted. Pl.’s Resp. Br. at 23; PSOF ¶ 23; Puri
2015 Dep. 38:21-39:1. Bailey argues that these statements show that the Postal
21Neither
party actually states this, but presumably the Route 4 position is also a T6
swing position. Both the Postal Service and Bailey seem to agree that Villareal was
converted to a T6 swing position in January 2013. PSOF ¶ 18; Def.’s Resp. to PSOF ¶ 18;
Pl.’s Resp. Br. at 22. And Bailey does not appear to contest the Postal Service’s position that
Villareal was awarded the Route 4 position in January 2013. Indeed, in Bailey’s statement
of facts, he appears to be asserting that the two full-time positions that were available in
January 2013 were the Route 4 position and Mamparo’s T6 swing—the latter of which
should have gone to him. PSOF ¶ 22. In addition, if the Route 4 position were not a T6
swing, then presumably Bailey would have pointed that out because it would have
undermined the Postal Service’s reason for not converting Bailey sooner: that in January
2013, a national moratorium was in effect precluding PTF-carriers from being converted to
anything other than T6 swing positions.
60
Service’s alleged reason for not converting Bailey sooner—that no T6 swing was
available—is a pretext for discrimination. Pl.’s Resp. Br. at 22-23. But these general
statements are not enough for a reasonable factfinder to find pretext. There is no
evidence that a firm deadline existed for the posting of Mamparo’s position. Nor has
Bailey provided proper support for his contention that employees on extended leave
must relinquish their positions—all he cites is Watson’s affidavit, see PSOF ¶ 23,
and as explained earlier, that affidavit is stricken because of the failure to disclose
the subjects of Watson’s testimony. Because Mamparo was on medical leave, for
which he provided documentation to his supervisors, the Postal Service had a
legitimate reason for not posting the position. A reasonable juror could not infer
pretext based on these facts.
Bailey separately argues that “it[] [is] questionable as to whether [a] national
moratorium even exist[ed].” Pl.’s Resp. Br. at 23. But Bailey fails to present any
evidence to cast doubt on Puri’s testimony that a moratorium was in place in early
2013. Puri 2015 Dep. 41:2-22. True, no written policy has been offered by the Postal
Service, but when it became clear during discovery that the Postal Service intended
to rely on this specific policy to support its delay of Bailey’s conversion, Bailey could
have requested documents reflecting it. Instead, Bailey appears to have waited until
after the close of discovery to ask for this policy. R. 48, Exh. 8, Sept. 2015 Email
String; R. 15, 2/18/15 Minute Entry (setting 08/17/15 as close of fact discovery). So
the Postal Service has admissible evidence of the moratorium, PSOF ¶¶ 19, 21; Puri
61
2015 Dep. 41:2-17, and Bailey cannot simply deny it with no basis. The Court
grants summary judgment to the Postal Service on this claim.
8. Incident on April 2, 2013
Next, Bailey asserts that he was discriminated against when he was
disciplined for delivering certified mail to a customer’s mailbox without obtaining a
signature. DSOF ¶ 43; Am. Compl. ¶¶ 41-42. Puri stated that she learned about this
incident after a customer called the post office to complain. Puri 2014 Second EEO
Decl. ¶ 6. She informed Collins of the complaint and Collins issued Bailey a notice of
removal, which was reduced to a 14-day suspension by the Dispute Resolution
Team. 4/02/13 Notice of Removal; Puri 2014 Second EEO Decl. ¶ 6; Collins 2014
EEO Decl. ¶ 6; 7/19/13 Step B. Decision at 000895.
Bailey asserted during discovery that Al Klebek, who is male and Caucasian,
was similarly situated and treated better when Klebek received a 14-day
suspension for failing to deliver express mail. DSOF ¶ 70; Pl.’s Suppl. Discovery
Resp. Ltr. at 2. Klebek’s suspension did not count toward his progressive discipline.
Id. Bailey noted (again during discovery) that unlike Klebek, his disciplinary
violations were never retracted or reduced by management. Id. But notably absent
from Bailey’s summary judgment briefing is any mention of Klebek. See generally
Pl.’s Resp. Br. Bailey states only that his discipline “was not reduced at the
management level … as it had been for other non-African American and for female
employees.” Id. at 24. He does not mention Klebek or challenge the Postal Service’s
contention that Klebek did not receive different treatment, see Def.’s Br. at 17, a
62
contention which is supported by Klebek and Bailey’s receipt of 14-day suspensions
for their similar misconduct. Bailey bears the burden of making a prima facie case
of discrimination; to do that, he must show that the Postal Service treated a
similarly situated individual outside his protected class more favorably. Bailey has
failed to do that.
What’s more, Bailey has also failed to show that the Postal Service’s stated
reason for disciplining him was pretextual. Bailey does not present any evidence
that would call into question whether the customer who called to complain said
something different, nor does he present any evidence to suggest that Puri or
Collins did not actually believe the customer. Bailey asserts that the Postal Service
keeps a record of customer complaints, and that there is no record of this complaint
against him. Pl.’s Resp. Br. at 24. But Bailey provides no support for the contention
that there is always a record kept of customer complaints. Bailey cites only to
Paragraphs 43 through 45 of the Postal Service’s statement of facts—none of which
discuss a log sheet for customer complaints. Pl.’s Resp. Br. at 24. Bailey’s responses
to those statements also fail to discuss any customer complaint log. Pl.’s Resp. to
DSOF ¶¶ 43-45. From the Court’s own review of the record, the only evidence that
could possibly support Bailey’s allegation here is Collins’s 2015 deposition, in which
he states that he believes customer complaints are now tracked, but that he cannot
remember when they started logging complaints. Collins 2015 Dep. 102:11-103:24.
Collins states it could have been “three or four years” ago, or “possibly two.” Id.
102:18-19, 103:11-12. All he seems to remember is that “on [his] way out … about a
63
year-and-a-half [ago,] … it was something that [they] started.” Id. 103:14-17. So it is
possible that a log of customer complaints existed in March 2013. But without more
(and especially without Bailey identifying factual support via Local Rule 56.1), this
assertion about logged complaints fails to establish pretext.
Bailey separately points to an accountable mail log sheet for March 19,
2013—the day the customer called to complain—which does not list any accountable
mail for Route 4. 03/19/13 Accountable Mail Log Sheet. It also does not show the
tracking number associated with the certified mail piece listed in Bailey’s notice of
removal. Id.; 4/02/13 Notice of Removal at 005877 (listing tracking no. 7011 2970
0003 6843 2818). But this log sheet, on its own, does not sufficiently cast doubt on
the Postal Service’s purported reason for the discipline to establish pretext. For one,
it is not clear who fills out this log sheet. If the carriers fill it out, then a failure by
Bailey to recognize this certified mail piece would explain why it was never logged.
The notice of removal also includes very specific details about the complaint,
including the time the customer called, the customer’s address, and the tracking
number of the certified flat mail piece. Id. These specifics add detailed support for
the Postal Service’s stated reason for disciplining Bailey. Puri further stated—on
multiple occasions—that she had to go to the customer’s home to correct the issue.
Puri 2014 Second EEO Decl. ¶ 6; R. 39, Exh. 39, Puri Discovery Dep. 20:5-21:23.
Bailey presents no evidence that would suggest Puri did not do this, nor does he
present any evidence challenging whether the customer’s address was on his
assigned route. In fact, he specifically states in his deposition that the customer’s
64
address is on Route 4 and that he was working that route that day. Bailey Dep.
64:15-25. Without more, Bailey has not presented enough evidence to raise a
genuine issue of material fact as to whether the Postal Service’s alleged reason for
issuing him discipline was a fabrication.22 Accordingly, the Court grants summary
judgment to the Postal Service on this claim.
9. Inability to Start Work Day Earlier
Finally, Bailey contends that the Postal Service discriminated against him by
not allowing him to start his work day thirty minutes earlier, at 7:00 a.m., like two
other PTF-carriers, Rosa Villareal (female and Hispanic) and LaTanya Rogers
(female and African American). DSOF ¶ 46; Pl.’s Resp. to DSOF ¶ 46; Am. Compl.
¶ 46. Bailey asserts that Rogers was able to receive more overtime wages because
she started her day earlier. Pl.’s Resp. to DSOF ¶ 47, Pl.’s Suppl. Discovery Resp.
Ltr. at 2; 10/23/14 Final Agency Decision at 002330-2231. Puri explained that she
assigned Rogers an earlier start time so that Rogers could case mail on open routes;
she also stated that this enabled her to run the office more efficiently and to avoid
calling a carrier into work on his or her non-scheduled day at the overtime rate.
Puri 2014 EEO Decl. ¶ 12.
22Bailey
suggests in conjunction with this claim that he tried multiple times to
escape his “hostile” work environment. Pl.’s Resp. Br. at 24. In his statement of facts, he
alleges that his requests to transfer out of the Wood Dale Post Office were denied because of
his disciplinary record. PSOF ¶ 30. But to the extent Bailey is trying to assert a claim along
these lines, he runs into a problem with the fact that it does not appear that he raised this
claim in any of his EEO complaints. Hill v. Porter, 352 F.3d 1142, 1145 (7th Cir. 2003)
(explaining that a plaintiff may not file suit under Title VII without first exhausting his
administrative remedies).
65
The difficulty for Bailey here is that he does not allege that he ever asked to
begin work at 7:00 a.m. So there is no evidence that Puri made a conscious decision
against allowing Bailey to start at that time, or that Puri picked Rogers or Villareal
over Bailey. Bailey simply suggests that because he was more senior than Rogers,
Puri should have approached him first. Pl.’s Resp. Br. at 25. But Bailey offers no
evidence showing that Puri should have known that Bailey wanted to start earlier.
So Bailey’s claim appears to amount to nothing more than a “petty slight[] or minor
annoyance[]” with his work hours, which does not qualify as an adverse
employment action. Burlington N. & Santa Fe Ry Co. v. White, 548 U.S. 53, 68
(2006); Griffin, 356 F.3d at 829 (denial of shift change is not an adverse employment
action). Cordoso, 427 F.3d at 435 (explaining that Title VII does not authorize a
court to act as a “‘super-personnel department’ intervening whenever an employee
feels he is being treated unjustly”); Kaupas, 2008 WL 624045, at *14.
Bailey also suggests that the earlier start time enabled Rogers to accrue
greater overtime. Pl.’s Resp. Br. at 25. But there is evidence in the record—
including Bailey’s own deposition—showing that all PTF-carriers are entitled to
overtime if they work more than forty hours a week, no matter when they begin
their shift. Bailey Dep. 8:8-16; Puri 2014 EEO Decl. ¶ 10 (“PTF carriers who start
work at 7:00 a.m. are not paid at the overtime rate of pay. Rather, overtime is paid
to employees who work more than eight hours.”). So it is not necessarily true that
starting a shift earlier will automatically translate into greater overtime hours, as
Bailey suggests. Here too Bailey fails to show that he suffered any sort of tangible
66
harm from Puri’s decision to allow one or two other employees to begin work earlier.
He too would be entitled to overtime if he worked more than eight hours in a day,
just as Rogers would be. Bailey has again failed to establish a prima facie case of
discrimination, so the Postal Service is again entitled to summary judgment.23
C. Retaliation Claim
Bailey raises one final claim, a retaliation claim. Am. Compl. ¶¶ 73-77 (Count
3). He asserts that the Postal Service retaliated against him for filing his EEO
complaints, in violation of Title VII, 42 U.S.C. § 2000e-3(a). Id.; see Miller v. Am.
Family Mut. Ins. Co., 203 F.3d 997, 1007 (7th Cir. 2000) (“Title VII protects persons
not just from certain forms of job discrimination, but from retaliation for
complaining about the types of discrimination it prohibits.”). To establish a prima
facie case of retaliation, Bailey must show, by a preponderance of the evidence, that
he: (1) opposed an unlawful employment practice under Title VII; (2) was the object
of a materially adverse action; and (3) that the adverse action was caused by his
opposition to the unlawful employment practice. Hamner v. St. Vincent Hosp. &
Health Care Center, Inc., 224 F.3d 701, 705 (7th Cir. 2000); McKenzie v. Ill. Dep’t of
23It
is worth mentioning (even though Bailey does not raise this argument) that even
when all of these incidents are considered together, a reasonable factfinder still could not
find any differently than the Court did above. Outside of the one incident related to Bailey’s
work hours on August 25, Bailey fails to provide sufficient evidence to cast doubt on the
Postal Service’s purported reasons for disciplining him. Bailey is unable to point to others
outside his protected class who were treated more favorably than he was, and he is also
unable to show that any of the misconduct for which he was disciplined were not matters
worthy of discipline. The evidence Bailey offers is simply not sufficient to raise a genuine
issue of material fact regarding whether the Postal Service discriminated against him on
account of his race or gender.
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Transp., 92 F.3d 473, 483 (7th Cir. 1996); see also Burlington N. & Santa Fe Ry Co.,
548 U.S. at 67-68.
Bailey runs into several problems here. For one, Bailey fails to sufficiently
allege any sort of connection between his protected activity and the supposedly
adverse actions taken by the Postal Service. Bailey generally asserts that the Postal
Service retaliated against him for filing EEO complaints, Am. Compl. ¶¶ 73-77; Pl.’s
Resp. Br. at 26, but he fails to identify which of the alleged incidents of discipline
(there are many) were retaliatory and which EEO complaints they were in
retaliation for. To prevail on his claim, Bailey must demonstrate a causal link
between the allegedly adverse action taken by the Postal Service and his filing of an
EEO complaint. Miller, 203 F.3d at 1007 (noting that plaintiff must establish “a
causal link between the protected expression and the adverse job action”); see also
McKenzie, 92 F.3d at 483 (“In order to demonstrate the ‘causal link,’ [the plaintiff]
must demonstrate that [the defendant] would not have taken the adverse action
‘but for’ the protected expression.”). Bailey fails to do this.
What’s more, even if Bailey had established a prima facie case of retaliation,
the Postal Service would still be entitled to summary judgment because, as
discussed in-depth in the prior section, the Postal Service offered legitimate, nondiscriminatory reasons for its disciplinary actions, and Bailey failed to meet his
burden of showing that these reasons were pretextual. Id. at 1008. Bailey’s only
surviving claim relates to the incident on August 25, 2011, where he was sent home
early after Puri decided to split his route. But the only EEO complaint Bailey had
68
filed before that date was filed back in December 2009, almost two years earlier.
DSOF ¶ 9; 10/31/13 EEOC Denial of Mot. for Recons. of First EEO Compl. at
001468. So the timing in no way appears suspicious such that it could lend some
support to an inference of retaliation. Hughes v. Derwinski, 967 F.2d 1168, 1174-75
(7th Cir. 1992) (affirming grant of summary judgment where four months had
elapsed between employee’s protected activity and his discipline). Cf. Coleman, 667
F.3d at 861 (holding that evidence of causation was sufficient to withstand
summary judgment where adverse actions against employee began around a month
after the employee filed EEO discrimination complaints and where employee had
also presented evidence of pretext). Nor does there appear to be any evidence of a
causal connection between Bailey’s protected activity of filing his EEO complaint in
2009 and the Postal Service’s alleged materially adverse action of precluding Bailey
from working his full shift on August 25, 2011. Because Bailey has failed to properly
develop this claim or to raise a genuine issue of material fact as to whether the
Postal Service retaliated against him for filing his EEO complaints, the Court
grants summary judgment to the Postal Service on this claim.
IV. Conclusion
For the reasons discussed above, the Postal Service’s motion for summary
judgment [R.37] is granted as to all but one of Bailey’s claims: his claim related to
the number of hours he was allowed to work on August 25, 2011. With this
summary judgment motion now decided, the parties must seriously engage in
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settlement discussions in advance of setting a pretrial conference and trial schedule.
The status hearing scheduled for September 9, 2016, remains in place.
ENTERED:
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: August 26, 2016
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