Anderson v. Donahoe

Filing 82

Chief Judge Patti B. Saris: MEMORANDUM and ORDER entered. This Court DENIES the defendant's motion for summary judgment (Docket No. 44 ). (Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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DIPING Y. ANDERSON,
Plaintiff,
v.
MEGAN J. BRENNAN, Postmaster
General,
Defendants.
______________________________

Civil Action
No. 14-13380-PBS

MEMORANDUM AND ORDER
November 23, 2016
Saris, C.J.
INTRODUCTION
Diping Anderson was formerly employed as a Postal Police
Officer (“PPO”) by the U.S. Postal Service. She claims that the
Postal Service unlawfully terminated her on the basis of her
Chinese descent and in retaliation for her filing multiple
complaints of race discrimination with the Equal Employment
Opportunity Commission (“EEOC”).
The Postal Service moves for summary judgment on the basis
that it had a nondiscriminatory reason for terminating Anderson:
a series of workplace misconduct incidents. Anderson responds
that her workplace misconduct was a pretextual reason for her
termination, as evidenced by the fact that she received harsher
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punishment than similarly situated white PPOs for the same
misconduct. Because a factfinder could reasonably conclude that
race and/or retaliatory motive was a determining factor in the
Postal Service’s termination of Anderson, the Postal Service’s
motion for summary judgment (Docket No. 44) is DENIED.
BACKGROUND
I.

Factual Background
The facts below are taken from the record, and are

undisputed except where stated.
Diping Anderson immigrated to the United States from China
in 1990. She began working as a PPO on July 15, 2000. She was
the only PPO of Asian descent during her thirteen years of
employment at the Boston General Mail Facility.
On May 12, 2011, Anderson filed her first pre-complaint
statement with the EEOC, alleging race discrimination by her
supervisors, Captain Harrington and Sergeant Ford. She alleged
that on May 1, 2011, Harrington and Ford impeded her return to
work from a workplace injury because of her race.
On May 23, 2011, the EEOC notified Harrington and Ford of
Anderson’s May 12, 2011 EEOC filing. On May 25, 2011, Anderson
came into work to find that her normal chair had been replaced
by a broken chair. When she objected, Ford told Anderson to go
home if she didn’t like it. Anderson went home. On May 26, 2011,

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Ford rescinded his approval of her request for leave on May 21,
2011 and changed her status on that day to “AWOL.”
On June 15, 2011, the EEOC convened a redress conference
between Anderson and her supervisors.
On June 24, 2011, Anderson was issued a seven-day
suspension, signed by Ford, for leaving her assigned post
without proper authorization. The notice of suspension stated
that Anderson had left the facility on May 21, 25, and 26, 2011
without prior approval. 
On July 9, 2011, Anderson filed her first formal EEOC
complaint. She alleged, among other things, that her seven-day
suspension was based on race discrimination.
On March 25, 2012, Anderson filed her second formal
complaint with the EEOC, alleging that she was being harassed by
her supervisors in retaliation for her prior EEOC filing.
On August 29, 2012, Anderson was issued a Letter of
Warning, signed by Sergeant Joseph Motrucinski, for failure to
properly protect and secure her service weapon upon the
completion of her duties. The letter stated that, on August 1,
2012, Anderson improperly placed her loaded service weapon in
her personal locker in the women’s changing room at the end of
her shift rather than securing it in the designated weapon
locker in the weapon room.

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On September 11, 2012, Anderson filed a pre-complaint
statement with the EEOC alleging that the August 29, 2012 Letter
of Warning was retaliation for her prior EEOC complaints.
On September 26, 2012, Anderson was issued a Letter of
Warning in Lieu of Fourteen-Day Suspension, signed by
Motrucinski. The letter stated three bases for the discipline:
failure to follow instructions, failure to secure accountable
property, and an integrity violation. According to the letter,
Anderson misplaced her keys, including her weapon room key and
weapon locker key, on August 17, 2012. She was directed multiple
times to complete an incident report, but she refused to do so.
The letter also stated that on at least four occasions in July
and August 2012, Anderson stored her weapon locker key inside
the weapon locker with her service weapon. According to the
letter, this was improper behavior because the weapon locker key
could be extracted from the weapon locker by anyone through a
small hole in the weapon locker door.
On October 19, 2012, Anderson’s name was removed from the
acting sergeant list.
On December 28, 2012, Anderson filed her third formal
complaint with the EEOC, alleging that she was being improperly
disciplined in retaliation for her prior EEOC complaints.

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On May 9, 2013, an EEOC investigator contacted Ford and
Motrucinski to request affidavits in response to Anderson’s
third formal complaint.
On September 9, 2013, Anderson was issued a Notice of
Removal, signed by Motrucinski. The Notice of Removal terminated
Anderson from her position for failure to perform her duties.
The Notice stated that on June 6, 2013, Anderson was dispatched
to the Brockton Processing and Distribution Center, where a fire
had left a hole in the facility building. According to the
notice, Anderson was directed to stand outside her cruiser to
prevent unauthorized access to the facility. However, the Notice
stated, Anderson was instead observed sitting in the back seat
of her cruiser and appeared to be sleeping. Anderson contests
the basis of the termination, claiming that she was not sleeping
on the job.
II.

Procedural Background
On August 15, 2014, Anderson filed a two-count complaint

against the Postal Service. The first count alleged race and
national original discrimination, in violation of 42 U.S.C.
§ 2000e-2(a). The second count alleged unlawful retaliation, in
violation of 42 U.S.C. § 2000e-3(a). The essential allegation in
the complaint was that Anderson was subjected to more severe
disciplinary punishment than other similarly situated PPOs
because of her race and in retaliation for her EEOC activity.
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Anderson sought compensatory and punitive damages, as well as
reinstatement to employment as a PPO with restoration of
seniority and benefits.
On June 3, 2016, the Postal Service filed a motion for
summary judgment on both counts. Anderson opposed the motion.
This Court held a hearing on August 15, 2016 and took the motion
under advisement.
DISCUSSION
I.

Summary Judgment Standard
Summary judgment is appropriate when 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). To succeed
on a motion for summary judgment, the moving party must
demonstrate that there is an “absence of evidence to support the
nonmoving party’s case.” Sands v. Ridefilm Corp., 212 F.3d 657,
661 (1st Cir. 2000) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986)). Once such a showing is made, “the burden
shifts to the nonmoving party, who must, with respect to each
issue on which she would bear the burden of proof at trial,”
come forward with facts that demonstrate a genuine issue of
material fact. Borges ex rel. S.M.B.W. v. Serrano–Isern, 605
F.3d 1, 5 (1st Cir. 2010) (citing Celotex, 477 U.S. at 324).
“A genuine issue exists where a reasonable jury could
resolve the point in favor of the nonmoving party.” Meuser v.
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Fed. Express Corp., 564 F.3d 507, 515 (1st Cir. 2009). “A party
cannot survive summary judgment simply by articulating
conclusions the jury might imaginably reach; it must point to
evidence that would support those conclusions.” Packgen v. BP
Expl. & Prod., Inc., 754 F.3d 61, 67 (1st Cir. 2014). A material
fact is “one that has the potential of affecting the outcome of
the case.” Calero–Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6,
19 (1st Cir. 2004).
In its review of the evidence, this Court must “examin[e]
the facts in the light most favorable to the nonmoving party”
and draw all reasonable inferences in its favor, to “determine
if there is sufficient evidence favoring the nonmoving party for
a jury to return a verdict for that party.” Sands, 212 F.3d at
661. This Court must ignore “conclusory allegations, improbable
inferences, and unsupported speculation” at the summary judgment
stage. Chiang v. Verizon New England Inc., 595 F.3d 26, 30 (1st
Cir. 2010). “Ultimately, credibility determinations, the
weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge.” Sensing v. Outback Steakhouse of Fla., LLC, 575 F.3d
145, 163 (1st Cir. 2009).
II.

McDonnell Douglas Framework
In the absence of direct evidence of discrimination, Title

VII claims are analyzed under a three-step burden-shifting
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framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–
04 (1973); see also Bhatti v. Trustees of Boston Univ., 659 F.3d
64, 70 (1st Cir. 2011). Under this framework, the plaintiff must
first establish a prima facie case of discrimination. Bhatti,
659 F.3d at 70. If she does so, the evidence creates a
presumption of discrimination. Id. The burden then shifts to the
employer to rebut the presumption by articulating a legitimate,
nondiscriminatory reason for the challenged decision. Id. If the
employer meets this burden, the burden then returns to the
plaintiff to show that the employer’s reasons were mere pretext
for discrimination. Id. At this final step, the original
presumption of discrimination drops out of the case and the
trier of fact must decide the ultimate question of whether the
plaintiff has proven unlawful discrimination. St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 510–11 (1993).
At the summary judgment stage, the McDonnell Douglas
framework operates as follows: If the plaintiff fails to
establish a prima facie case of discrimination, the employer’s
motion for summary judgment is granted. Mesnick v. Gen. Elec.
Co., 950 F.2d 816, 824 (1st Cir. 1991). If the plaintiff has
made out a prima facie case and the employer has not offered a
legitimate, nondiscriminatory justification for the adverse
employment action, the employer’s motion for summary judgment is
denied. Id. At the third step, “the McDonnell Douglas framework
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falls by the wayside,” id., and “the ultimate question becomes
whether, on all the evidence of record, a rational factfinder
could conclude that [race] was a determining factor in the
employer’s decision,” id. at 825.
III. Count I: Race Discrimination
The Postal Service concedes for purposes of its summary
judgment motion that Anderson has met her burden under step one
to establish a prima facie case of discrimination based on race
and national origin.
The Postal Service argues at step two, however, that the
Postal Service’s decision to terminate Anderson was legitimate
and non-discriminatory in light of Anderson’s disciplinary
record. The Postal Service points to Anderson’s August 29, 2012
Letter of Warning; her September 26, 2012 Letter of Warning in
Lieu of Fourteen-Day Suspension; and her June 6, 2013 misconduct
at the Brockton Processing and Distribution Center.
The inquiry then shifts to step three, where Anderson must
show that a factfinder could reasonably conclude that the Postal
Service’s reasons for disciplinary action were pretextual. There
are a number of different ways for Anderson to meet this burden.
Kosereis v. Rhode Island, 331 F.3d 207, 214 (1st Cir. 2003). One
of those ways is “to produce evidence that the plaintiff was
treated differently than other similarly situated employees.”
Id.; see also Ray v. Ropes & Gray LLP, 799 F.3d 99, 114 (1st
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Cir. 2015). In considering comparative evidence, “similarity,
rather than identicality, provides the essential requirement for
an analogy.” Conward v. Cambridge Sch. Comm., 171 F.3d 12, 22
(1st Cir. 1999); see also id. at 20 (“Reasonableness is the
touchstone: while the plaintiff’s case and the comparison cases
that he advances need not be perfect replicas, they must closely
resemble one another in respect to relevant facts and
circumstances.”). “The test is whether a prudent person, looking
objectively at the incidents, would think them roughly
equivalent and the protagonists similarly situated. . . . In
other words, apples should be compared to apples.” Dartmouth
Review v. Dartmouth Coll., 889 F.2d 13, 19 (1st Cir. 1989),
overruled on other grounds by Educadores Puertorriqueños en
Acción v. Hernández, 367 F.3d 61 (1st Cir. 2004).
Anderson produces evidence of a number of comparator cases
in which she claims that white employees were disciplined less
severely for equal or greater misconduct. According to that
evidence, formal disciplinary proceedings are rare for PPOs.
Matthew Grealish, who worked as a PPO at the Boston General Mail
Facility for forty-one years before retiring, stated that PPOs
“have been rarely disciplined and even more rarely fired even
when they have clearly and repeatedly violated rules and
regulations of the [Postal Service] . . . . Supervisors
generally rely on informal talks with officers who have broken
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rules, rather than write them up for disciplinary proceedings.”
Docket No. 48-11 at 2–3. Martha Burris, who worked as a PPO at
the Boston General Mail Facility for thirty-two years before
retiring, stated: “I have noticed that nearly all violations by
PPOs go unpunished when supervisors are aware of them and even
when the same PPO breaks the same rules repeatedly.” Docket No.
48-12 at 3.
The evidence also contains specific examples of lesser
discipline for other PPOs who have been responsible for similar
or worse misconduct than Anderson. Misplacing of weapon room
keys is, according to evidence in the record, commonplace and
generally handled without punishment, or even warning or
criticism. As for leaving firearms in changing room lockers
instead of in the weapon room, there is evidence in the record
that other PPOs and a sergeant have done the same without
receiving formal discipline.
In fact, more serious firearm incidents have been dealt
with lightly. Motrucinski, now a sergeant but at the time a PPO,
lost his service weapon when it fell out of a car onto the
streets of South Boston. Motrucinski, who is white, only
received a Letter of Warning. Postal Inspector Michael McCarron
left his loaded firearm in a public bathroom outside the secure
police wing in the Boston General Mail Facility, where it was

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found by a janitor. McCarron, who is white, also only received a
Letter of Warning.
Anderson also produces evidence that a number of PPOs were
notorious for falling asleep on the job and that other PPOs
would joke about them. The record contains no evidence that
those PPOs were ever disciplined.
The Postal Service responds that those other employees were
not similarly situated because the discipline was imposed by
other supervisors. The Postal Service is correct that employees
who are disciplined by different decision-makers may not be
similarly situated. See Stanback v. Best Diversified Prod.,
Inc., 180 F.3d 903, 910 (8th Cir. 1999) (“When different
decision-makers are involved, two decisions are rarely similarly
situated in all relevant respects.” (quoting Harvey v. AnheuserBusch, Inc., 38 F.3d 968, 972 (8th Cir. 1994))); see also Radue
v. Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000)
(“Different employment decisions, concerning different
employees, made by different supervisors, are seldom
sufficiently comparable to establish a prima facie case of
discrimination for the simple reason that different supervisors
may exercise their discretion differently.”), overruled on other
grounds by Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th
Cir. 2016).

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But this Court declines to adopt the Postal Service’s
position that another employee disciplined by a different
supervisor cannot, as a categorical rule, be a comparator. Some
courts appear to apply such a rule. See Orton-Bell v. Indiana,
759 F.3d 768, 777 (7th Cir. 2014) (stating that a Title VII
plaintiff “must at least show” that a comparator dealt with the
same supervisor); Muor v. U.S. Bank Nat’l Ass’n, 716 F.3d 1072,
1078 (8th Cir. 2013) (stating that employees used for comparison
“must have dealt with the same supervisor”). But other courts
have rejected such a rule. See Bobo v. United Parcel Serv.,
Inc., 665 F.3d 741, 751 (6th Cir. 2012) (“[W]e have never read
‘the same supervisor criterium’ as an ‘inflexible requirement.’
Whether it is relevant in a particular case that employees dealt
with the same supervisor depends on the facts presented.”
(quoting Seay v. Tennessee Valley Auth., 339 F.3d 454, 479 (6th
Cir. 2003))). The First Circuit does not appear to have taken a
position on the question. While the First Circuit in RodriguezCuervos v. Wal-Mart Stores, Inc. rejected a comparator for,
among other things, having a different supervisor, that decision
did not rule out the possibility that under different factual
circumstances, an employee with a different supervisor can
nonetheless be a comparator. 181 F.3d 15, 21 (1st Cir. 1999).
Given the facts of this case, this Court concludes that
comparators need not necessarily have been disciplined by the
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same supervisor as Anderson for a reasonable factfinder to
conclude that they were similarly situated. According to Charles
Zekan, a Postal Service employee involved in nationwide
oversight over PPO discipline cases, the Postal Service
emphasizes the “general principle . . . that all employees are
treated equitably, equally.” A factfinder could conclude that
Anderson and the comparator employees were subject to the same
standards even if they were disciplined by different
supervisors. Moreover, there is record evidence that supervisors
knew about the discipline practices of other supervisors: as
Grealish stated, “The postal police unit in Boston is rather
small and we work in close quarters at the [General Mail
Facility] offices; consequently, the officers generally know
about violations of rules and disciplinary proceedings involving
other officers.” See Seay, 339 F.3d at 480.
Under such facts, a reasonable factfinder could find that
the other Postal Service employees were similarly situated to
Anderson in all relevant respects even if those other employees
were disciplined by different supervisors. That comparator
evidence could reasonably support a conclusion that Anderson was
disciplined differently due to her race. The Postal Service’s
motion for summary judgment on Count I is DENIED.

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IV.

Count II: Unlawful Retaliation
The Postal Service argues that Anderson cannot even make

out a prima facie case of unlawful retaliation. “To make a prima
facie showing of retaliation, the plaintiff must show that she
engaged in protected conduct, that she suffered an adverse
employment action, and that a causal nexus exists between the
protected activity and the adverse action.” Ponte v. Steelcase
Inc., 741 F.3d 310, 321 (1st Cir. 2014). The Postal Service
argues that there is no causal nexus between Anderson’s EEOC
complaints and her termination because of the lack of temporal
proximity.
The Postal Service understates the temporal connections in
the record. Before her first EEOC complaint, Anderson worked as
a PPO for ten years without any disciplinary record. Subsequent
to that, there are a number of points in the chronology in which
discipline is imposed soon after EEOC activity, making it
reasonable for a factfinder to find a nexus between protected
activity and an adverse employment action. For example,
Anderson’s permission for leave was revoked and she was charged
with AWOL status on May 26, 2011, which was three days after
Harrington and Ford were notified of Anderson’s EEOC precomplaint filing. Anderson’s seven-day suspension was imposed on
June 24, 2011, which was nine days after the EEOC scheduled a
redress conference between Anderson and her supervisors.
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Anderson’s Letter of Warning in Lieu of Fourteen-Day Suspension
was issued on September 26, 2012, which was fifteen days after
she filed a pre-complaint statement with the EEOC. Anderson’s
termination was based on events on June 6, 2013, which was about
a month after the EEOC requested affidavits from Ford and
Motrucinksi in response to Anderson’s third EEOC complaint.
While the Postal Service correctly observes that “the
inference of a causal connection [between protected activity and
alleged retaliation] becomes tenuous with the passage of time,”
Dressler v. Daniel, 315 F.3d 75, 80 (1st Cir. 2003), the record
evidence supports a finding of temporal proximity between her
EEOC activity and the allegedly retaliatory actions.
Moreover, Anderson does not rely on temporal proximity
alone. See Ahern v. Shinseki, 629 F.3d 49, 58 (1st Cir. 2010)
(“[A] gap of several months cannot alone ground an inference of
a causal connection between a complaint and an allegedly
retaliatory action.” (emphasis added)). Rather, Anderson alleges
a pattern of retaliatory conduct beginning soon after her first
EEOC activity. She also alleges a direct statement suggesting a
causal nexus between her EEOC activity and discipline imposed on
her: according to Barris, Ford said after Anderson made her
first EEOC complaint that he “wanted Ping out of here.”
Anderson has established a prima facie case of retaliation.
For the same reasons stated above with respect to Count I, the
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Postal Service has put forth a nondiscriminatory explanation for
the discipline and Anderson has responded with sufficient
evidence to allow a factfinder to conclude that the
nondiscriminatory explanation is pretextual. The Postal
Service’s motion for summary judgment on Count II is DENIED.

ORDER
This Court DENIES the defendant’s motion for summary
judgment (Docket No. 44).

/s/ PATTI B. SARIS
Patti B. Saris
Chief United States District Judge

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