Seymore v. Johnson
Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. (Zaleski, Christine)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
Civil Action No.
JEH CHARLES JOHNSON,
MEMORANDUM AND ORDER ON
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Arthur Seymore has brought suit against his former employer, defendant Jeh
Charles Johnson, Secretary of the Department of Homeland Security. In substance, Seymore
contends that defendant retaliated against him for bringing an Equal Employment Opportunity
complaint concerning alleged unpaid overtime and discrimination on the basis of race.
Defendant has moved for summary judgment. For the following reasons, the motion will
be granted in part and denied in part.
The following facts are undisputed.
Plaintiff Arthur Seymore is an African-American man and a former employee of the
Transportation Security Administration (“TSA”). (Def. SMF ¶ 1). Defendant Jeh Charles
Johnson is the Secretary of the Department of Homeland Security. The TSA is an agency within
the Department of Homeland Security.
In January 2010, the TSA hired Seymore as a part-time transportation security officer at
the Provincetown Municipal Airport in Massachusetts. (Dow Decl. ¶ 5). In the fall of 2012,
Seymore was transferred from the Provincetown Airport to the Logan International Airport in
Boston, Massachusetts, and had his status changed from part-time to full-time. (Def. SMF ¶ 6).
In November 2012, Seymore contacted an Equal Employment Opportunity counselor
concerning allegedly unpaid overtime. (Compl., Ex. 13). In January 2013, he filed a formal
complaint with the Department of Homeland Security alleging that TSA employees at the
Provincetown Airport discriminated against him on the basis of race. (Id.).
On September 29, 2013, while Seymore’s allegations were pending, Transportation
Security Manager Jenifer Wainscott called Seymore into her office to discuss his use of sick
leave, which she considered inappropriate. (Def. SMF ¶ 9). Thereafter, on October 6, 2013,
Wainscott placed Seymore on a leave restriction.
The leave restriction was detailed in a memorandum. (Def. SMF ¶ 10). Under the terms
of the memorandum, Seymore was required to request scheduled leave at least seven days in
advance, request emergency leave at least an hour before his scheduled report time, and, under
some circumstances, provide supporting documentation for his absences. (Dow Decl., Ex. 6). It
further provided that “Your work hours are 1215 to 2045. These include a 30-minute lunch
break. You are expected to be at work and be ready to begin working at 1145 every day . . .”
(Id. ¶ 5). The memorandum stated that the restriction would either be reviewed within 180 days
or it would lapse. (Id. at 2).
On April 21, 2014, Seymore sent an e-mail to TSA Federal Security Director David Kane
informing him that he had “been on [leave restriction] reporting to work 30 minutes early
without pay since 10/6/2013” and requesting that the restriction be removed. (Balakrishna Decl.,
Ex. 3). On April 26, 2014, another TSA employee, Rob Snyder, sent Seymore an e-mail
informing him that the leave restriction had expired on April 4, 2014, 180 days after it was
issued. (Id.). On May 7, 2014, Kane sent Seymore another e-mail, which stated that after an
investigation, he determined that the leave restriction “contained a typographical error that
directed you to begin working at 1145 everyday rather than your regularly scheduled start time
of 1215. I apologize for this mistake.” (Id.). Kane requested that Seymore provide an
accounting of the days on which he arrived early in order to compensate him for that time. (Id.).
Seymore did not provide such an accounting and was not compensated for any extra time. (Def.
SMF ¶ 24).
Seymore filed this lawsuit on May 30, 2014, alleging seven counts arising under state and
federal law. On March 26, 2015, defendant moved to dismiss the complaint for failure to state a
claim upon which relief can be granted. The Court granted that motion with respect to Counts
One, Three, Six, and Seven, and otherwise denied it. The remaining counts allege claims for
retaliation in violation of Title VII, breach of contract, and breach of the implied covenant of
good faith and fair dealing.
The role of summary judgment is to “pierce the pleadings and to assess the proof in order
to see whether there is a genuine need for trial.” Mesnick v. General Elec. Co., 950 F.2d 816,
822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)).
Summary judgment is appropriate when the moving party 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 is “one that must be decided at trial because the evidence,
viewed in the light most flattering to the nonmovant would permit a rational fact finder to resolve
the issue in favor of either party.” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8
(1st Cir. 1990) (citation omitted). In evaluating a summary judgment motion, the court indulges
all reasonable inferences in favor of the nonmoving party. See O'Connor v. Steeves, 994 F.2d
905, 907 (1st Cir. 1993). When “a properly supported motion for summary judgment is made,
the adverse party must set forth specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quotations omitted). The nonmoving party may not simply “rest upon mere allegation or denials of his pleading,” but instead
must “present affirmative evidence.” Id. at 256–57.
Count Two: Retaliation
Title VII makes it an unlawful act for an employer to discriminate against any employee
“because he has opposed any practice made an unlawful employment practice” under Title VII.
42 U.S.C. § 2000e–3(a). In order to prove a prima facie case of retaliation, plaintiff must
establish three elements: (1) that he engaged in a protected activity; (2) that he suffered a
materially adverse action, causing him harm either inside or outside of the workplace; and (3)
that the adverse action was causally linked to the protected activity. See Mariani-Colon v.
Department of Homeland Sec., 511 F.3d 216, 223 (1st Cir. 2007) (citing Dixon v. International
Bhd. of Police Officers, 504 F.3d 73, 81 (1st Cir. 2007)).
Defendant contends that plaintiff has not established a prima facie case of retaliation
because he has not produced evidence that the leave restriction constituted a materially adverse
action. A materially adverse action is one that “might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006) (quotation omitted). Requiring a plaintiff to prove that element serves to
“separate significant from trivial harms.” Medina-Rivera v. MVM, Inc., 713 F.3d 132, 139 (1st
Cir. 2013) (quoting Burlington N., 548 U.S. at 68).
The memorandum describing the leave restriction plainly provided that plaintiff was
required to arrive at work thirty minutes prior to his scheduled start time and be “ready to work”
at that time. Without question, requiring an employee to work an extra thirty minutes each day
without pay rises above the level of a “minor annoyance.” Id. Defendant contends that the
restriction cannot constitute an adverse action because it was the unintentional result of a
typographical error that was remedied immediately upon its discovery. Plaintiff disputes that
contention, arguing that the structure of the memorandum—which juxtaposes his start time of
12:15 with the early arrival time of 11:45 within the same paragraph—renders defendant’s
explanation implausible. Drawing all inferences in the light most favorable to plaintiff, a
reasonable juror could find that the memorandum was written as intended and constituted an
adverse employment action. That factual dispute precludes summary judgment. Accordingly,
defendant’s motion for summary judgment will be denied with respect to Count Two.
Counts Four and Five: Breach of Contract and Breach of the Implied
Covenant of Good Faith and Fair Dealing
Counts Four and Five allege claims for breach of contract and breach of the implied
covenant of good faith and fair dealing. Defendant moved for summary judgment on those
claims on the basis that plaintiff’s employment was initiated by governmental appointment,
rather than by contract. Plaintiff did not address defendant’s arguments concerning those claims
in opposing the motion for summary judgment. Accordingly, as defendant’s arguments appear
meritorious, the Court will grant the motion for summary judgment with respect to Counts Four
For the foregoing reasons, defendant’s motion for summary judgment is GRANTED as to
Counts Four and Five, alleging claims for breach of contract and breach of the implied covenant
of good faith and fair dealing, and DENIED as to Count Two, alleging a claim for retaliation
under Title VII.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: February 22, 2017
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