SPEARMAN v. DONAHOE

Filing 25

OPINION FILED. Signed by Judge Joseph E. Irenas on 7/17/13. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LEO H. SPEARMAN,
HONORABLE JOSEPH E. IRENAS

Plaintiff,
v.

CIVIL ACTION NO. 11-6666
(JEI/JS)

PATRICK R. DONAHOE,
POSTMASTER GENERAL

OPINION

APPEARANCES:
F. Michael Daily, Jr.
Sentry Office Plaza
216 Haddon Avenue, Ste. 100
Westmont, NJ 08108
Counsel for Plaintiff
U.S. DEPARTMENT OF JUSTICE, OFFICE OF THE U.S. ATTORNEY
By:
Elizabeth Ann Pascal
401 Market Street
P.O. Box 2098
Camden, NJ 08101
Counsel for Defendant
IRENAS, Senior District Judge:
Plaintiff Leo H. Spearman is an employee of the United
States Postal Service.

Spearman initiated this action against

Patrick Donahoe, the Postmaster General, pursuant to the Age
Discrimination in Employment Act (the “ADEA”), 29 U.S.C. §§ 621 634.1

Plaintiff claims that his shift at the post office was

1

This Court has subject matter jurisdiction pursuant to 28
U.S.C. § 1331.
1

abolished, forcing him to work on a less desirable shift, as a
result of his age.

Pending before the Court is Defendant’s

motion for summary judgment.

For the reasons stated herein,

Defendant’s motion will be granted in full.
I.
For the purposes of this Motion, the Court resolves any
factual disputes in favor of Plaintiff Leo Spearman.2
Plaintiff Leo Spearman is a mailhandler with the United
States Postal Service (“USPS”) at the South Jersey Processing and
Distribution Center in Bellmawr, New Jersey (the “Bellmawr
(Def.’s SOMF ¶ 1,3 Pl.’s Resp. ¶ 1.4)

Facility”).

currently 62 years old.

Spearman is

(See Def.’s SOMF ¶ 2, Pl.’s Resp. ¶ 3.)

Judith Herrick is the Senior Plant Manager at the Bellmawr
Facility.

(Def.’s SOMF ¶ 3, Pl.’s Resp. ¶ 3.)

In early 2009,

Herrick directed the South Jersey Management Team to evaluate the
effectiveness of the mailhandler positions, also known as bids.
Bids are scheduled on three operating tours.
Pl.’s Resp. ¶ 10.)

(Def.’s SOMF ¶ 10,

Tour 1 is the overnight shift, Tour 2 is the

2

In deciding a motion for summary judgment, the Court must
construe the facts and inferences in a light most favorable to
the nonmoving party. Pollock v. Am. Tel. & Tel. Long Lines, 794
F.2d 860, 864 (3d Cir. 1986).
3

Citations in this form are to Defendant’s Statement of
Material Facts Not in Dispute submitted in support of his Motion
for Summary Judgment pursuant to Local Civ. R. 56.1.
4

Citations in this form are to Plaintiff’s Response to
Defendant’s Statement of Material Facts Not in Dispute.
2

day shift, and Tour 3 is the evening shift.
Pl.’s Resp. ¶ 9.)

(Def.’s SOMF ¶ 9,

Each bid assignment has scheduled days off.

(Def.’s SOMF ¶ 9, Pl.’s Resp. ¶ 9.)

Additionally, mailhandler

positions are designated as Level 4 or Level 5.
¶ 10, Pl.’s Resp. ¶ 10.)

A Level 5 position requires more skill

and pays a higher wage than a Level 4 position.
¶ 10, Pl.’s Resp. ¶ 10.)

(Def.’s SOMF

(Def.’s SOMF

When vacant mailhandler positions are

posted, the positions are filled in accordance with a union
bidding process and are awarded based solely on seniority.
(Def.’s SOMF ¶ 11, Pl.’s Resp. ¶ 11.)
In June 2009, the USPS implemented a mailhandler staff
realignment plan (the “Realignment”) at the Bellmawr Facility.
(Def.’s SOMF ¶ 12, Pl.’s Resp. ¶ 12.)

As part of the

Realignment, 280 mailhandler positions were adjusted, abolished,
or reposted.

(Def.’s SOMF ¶ 14, Pl.’s Resp. ¶ 14.)

More

specifically, the number of positions on Tour 1 was increased,
while the number of positions on Tour 2 and Tour 3 was decreased.
(Def.’s SOMF ¶ 17, Pl.’s Resp. ¶ 17.)

Additionally, the

Realignment gave the entire regular crew for a particular
reporting area the same scheduled days off, (Def.’s SOMF ¶ 18,
Pl.’s Resp. ¶ 18), although certain older individuals who would
be retiring in the near future were allowed to keep their

3

previously scheduled days off, (Pl.’s SOMF ¶ 42.5)

A position

called mailhandler relief was created to fill in on those days
when the regular crew was off.
¶ 24.)

(Def.’s SOMF ¶ 24; Pl.’s Resp.

No postal employee was fired or laid off as a result of

the Realignment.

(Pascal Aff. Ex. H 33:16-19.)

Herrick initially conceived of the realignment plan herself;
however, she discussed the plan with several members of her
staff, including Jerry Fillman, who was the Manager of Plant
Support, Operations Support Specialist William Hanna, the
Managers of Distribution Operations, key supervisors on all three
tours, and some of the support staff.

(Pascal Aff. Ex. H 49:9-

50:2, 53:9-53:14; Ex. K 16:3-17:10.)

Additionally, Hanna created

several documents and spreadsheets that the Realignment team
would use and modify while developing the plan.

(Def.’s SOMF

¶ 26, Pl.’s Resp. ¶ 26.)
Prior to the Realignment, Spearman worked on Tour 2 as a
Level 5 Mailhandler.

(Def.’s SOMF ¶ 13, Pl.’s Resp. ¶ 13.)

Specifically, he was a forklift operator in the APPS reporting
area.

(Pascal Aff. Ex. F 37:19-23.)

Saturday and Sunday.

Spearman’s off-days were

(Def.’s SOMF ¶ 13, Pl.’s Resp. ¶ 13.)

Spearman’s position was abolished as part of the
Realignment.

(Def.’s SOMF ¶ 27, Pl.’s Resp. ¶ 27.)

5

After the

Citations in this form are to Plaintiff’s Statement of
Facts filed with his opposition to Defendant’s Motion for Summary
Judgment.
4

Realignment, forklift operators in the APPS reporting area on
Tour 2 were required to have Sundays and Mondays off, instead of
Saturdays and Sundays.

(Def.’s SOMF ¶ 25, Pl.’s Resp. ¶ 25.)

the time of realignment, Plaintiff was 58 years old.

At

Further,

Spearman alleges that everyone on Tour 2 with weekend days off
was over fifty years old.

(Pl.’s SOMF ¶ 9.)

After his bid was abolished, Plaintiff had the option to
accept a residual assignment for which he was eligible within
Tour 2, or bid on positions in other tours.
Pl.’s Resp. ¶ 28.)

(Def.’s SOMF ¶ 28,

Had Spearman chosen to remain in Tour 2, he

no longer would have been eligible for weekend days off.
SOMF ¶ 22, Pl.’s Resp. ¶ 22.)

(Def.’s

Therefore, to retain his weekends

off, Spearman successfully bid on a Tour 1, Level 4 mailhandler
position with Saturdays and Sundays off.
Pl.’s Resp. ¶ 30.)

(Def.’s SOMF ¶ 30,

Spearman’s move to Tour 1, Level 4 came with

a $1,000 decrease in pay; however, this decrease was offset by a
ten percent night-shift differential.
Resp. ¶ 40.)

(Def.’s SOMF ¶ 40, Pl.’s

The Tour 1, Level 4 position did not require

Spearman to operate a forklift.

(Def.’s Br. in Opp., at 10.)

Nonetheless, Spearman admits that “the mailhandler realignment
did not affect [his] seniority, opportunity for overtime,
opportunity for promotion, or materially change his
responsibilities in a way that setback his career.”
¶ 38.)

5

(Pl.’s Resp.

Since beginning the Tour 1, Level 4 position, Spearman has
successfully bid on other positions.

In 2010, Spearman

successfully bid on a Tour 1, Level 5 Group Leader mailhander
position with Sundays and Mondays off.
Resp. ¶ 43.)

(Def.’s SOMF ¶ 43, Pl.’s

In 2011, Spearman bid on a Tour 2, Level 4

mailhandler position with Sundays and Mondays off.
¶ 44, Pl.’s Resp. ¶ 44.)

(Def.’s SOMF

In 2012, Spearman bid on a Tour 2,

Level 5 Mailhandler Equipment Operator position with Mondays and
Tuesdays off.

(Def.’s SOMF ¶ 46, Pl.’s Resp. ¶ 46.)

Spearman

currently holds this position.
Spearman initiated this litigation by filing a Complaint
with the Court on November 10, 2011, alleging that the
Realignment violated his rights under the ADEA.

(Dkt. No. 1.)

Specifically, the Complaint asserts that the Realignment “was
intentionally taken by the Defendant to adversely effect the hard
earned quality of life of the older Tour II workers and for the
purpose of coercing said workers into retirement.”

(Compl.

¶ 16.)6

6

For some reason, in his Brief in Opposition to
Defendant’s Motion for Summary Judgment, Spearman argues that the
Court should not dismiss his disparate impact claim. (Pl.’s Br.
in Opp., at 15-17.) Quite frankly, the Court finds this section
of Spearman’s brief virtually incomprehensible, as it puts forth
such arguments as “[s]imply because the EEO investigator failed
to investigate the claimant full is a disparate impact claim does
not bar Spearman from bringing a claim forward at this time.”
Further, the Complaint only includes one count for discrimination
under the ADEA, and it is plainly a disparate treatment, not a
disparate impact, claim. In fact, Spearman even admits that the
6

Pending before the Court is Defendant’s Motion for Summary
Judgment, which was filed on January 31, 2013.

(Dkt. No. 19.)

Plaintiff’s brief in opposition was not filed until June 28,
2013; however, the Court permitted Plaintiff to file his brief
out of time.

(Dkt. No. 23.)

Oral argument was held on July 3,

2013.
II.
Summary judgment is proper 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).

In deciding a motion for summary judgment, the Court must
construe the facts and inferences in a light most favorable to
the non-moving party.

Pollock v. Am. Tel. & Tel. Long Lines, 794

F.2d 860, 864 (3d Cir. 1986).

The role of the Court is not “to

weigh the evidence and determine the truth of the matter, but to
determine whether there is a genuine issue for trial.”

Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the burden of establishing that no
genuine issue of material fact remains.

“‘With respect to an

issue on which the non-moving party bears the burden of proof,
the burden on the moving party may be discharged by ‘showing’–

“only allegation in this litigation is disparate treatment on the
basis of age.” (Pl.’s Resp. ¶ 52.) In this Opinion, the Court
will only address disparate treatment, since it is the only claim
properly asserted by the Plaintiff in his Complaint.
7

that is, pointing out to the district court – that there is an
absence of evidence to support the nonmoving party’s case.’”
Conoshenti v. Public Serv. Elec. & Gas, 364 F.3d 135, 145-46 (3d
Cir. 2004) (quoting Celotex).

Summary judgment should be granted

“against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at
trial.

In such a situation, there can be ‘no genuine issue as to

any material fact,’ since a complete failure of proof concerning
an essential element of the nonmoving party’s case necessarily
renders all other facts immaterial.”

Celotex, 477 U.S. at 322-

23.
A fact is material only if it will affect the outcome of a
lawsuit under the applicable law, and a dispute of a material
fact is genuine if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.

See Anderson,

477 U.S. at 252.

III.
A.
The ADEA provides, in pertinent part, that “it shall be
unlawful for an employer . . . to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any
individual with respect to his compensation, terms, conditions,
8

or privileges of employment, because of such individual’s age.”
29 U.S.C. § 623(a)(1).

The purpose of the ADEA is to prevent

discrimination against older employees on the basis of their age.
See 29 U.S.C. § 621(b).
In the context of a motion for summary judgment, Courts
analyze ADEA claims under the burden shifting framework of
McDonnell Douglass Corp v. Green, 411 U.S. 792 (1973).

See

Deville v. Givaudan Fragrances Corp., 419 Fed. Appx. 201 (3d Cir.
2011).

Under this framework, “plaintiffs bear the burden of

proof and production to make out a prima facie case.”

Id.

To

make out a prima facie case, a plaintiff must show that (1) the
plaintiff is 40 years of age or older; (2) the defendant took an
adverse employment action against the plaintiff; (3) the
plaintiff was qualified for the position in question; and (4) the
plaintiff was ultimately replaced by another employee who was
sufficiently younger to support an inference of discrimination.
Id.
If a plaintiff satisfies these elements, “then the burden of
production shifts to the employer to identify a legitimate
nondiscriminatory reason for the adverse employment action.”
Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir. 2009).

If

the employer satisfies this burden, then the burden of production
shifts back to the plaintiff, who must demonstrate that the
“employer’s proffered rationale was a pretext for age

9

discrimination.”

Id.

The Third Circuit has held that in order

to show pretext:
a plaintiff must submit evidence which (1) casts doubt
upon the legitimate reason proffered by the employer
such that a fact-finder could reasonably conclude that
the reason was a fabrication; or (2) would allow the
fact-finder to infer that discrimination was more
likely than not a motivating or determinative cause of
the employee's termination. Put another way, to avoid
summary judgment, the plaintiff's evidence rebutting
the employer's proffered legitimate reasons must allow
a fact-finder reasonably to infer that each of the
employer's proffered non-discriminatory reasons was
either a post hoc fabrication or otherwise did not
actually motivate the employment action (that is, that
the proffered reason is a pretext).
Doe v. C.A.R.S. Protection Plus, Inc. 527 F.3d 358, 370 (3d Cir.
2008).

“A plaintiff may not establish pretext simply by showing

that the employer’s decision was wrong or mistaken because the
main issue is whether the employer acted in a discriminatory
manner.”

Robinson v. Matthews Int’l Corp., 368 Fed. Appx. 301,

305 (3d Cir. 2010) (citing Fuentes v. Perskie, 32 F.3d 759, 765
(3d Cir. 1994)).
In the instant case, summary judgment in favor of the
defendant is proper because Spearman cannot sustain a prima
facie case under the ADEA nor prove that Defendant’s stated
reasons for realignment were pretext.
B.
Spearman cannot make out a prima facie case under the ADEA
for two reasons: (1) he cannot show he was subject to an adverse
employment action, and (2) he cannot show that he was replaced
10

by someone significantly younger to support an inference of
discrimination.
1.
An “adverse employment action” for purposes of the ADEA is
a “significant change in employment status, such as hiring,
firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing significant
change in benefits.”

Reynolds v. Dep’t of Army, 2010 WL

2674045, at *12 (D.N.J. 2010) (citing Burlington Indus. v.
Ellerth, 524 U.S. 742, 761 (1998)).

Thus, a “purely lateral

transfer does not, by itself, constitute an adverse employment
action.”

Fallon v. Meissner, 66 Fed. Appx. 348, 352 (3d Cir.

2003) (internal citations and quotations omitted).

However, a

transfer can be considered an adverse employment action, even if
it does not involve a loss of pay or benefits, if the transfer
is to a “dead end job.”

See id. (citing Torre v. Casio, Inc.,

42 F.3d at 831 n.7 (3d Cir. 1994)).

In addition, “a transfer to

‘an undesirable shift’ that left the plaintiff with ‘none of the
customary free time’ he was accustomed to was found to be
sufficient for a prima facie case.”

Fallon, 66 Fed. Appx. at

351 (quoting Mondzelewski v. Pathmark Stores, Inc., 162 F.3d
778, 787 (3d Cir. 1998)).
In the instant case, after his Tour 2, Level 5 mailhandler
position with weekends off was abolished, Spearman opted to bid
11

on a Tour 1, Level 4 position to retain his weekends off.

This

change in position came with a minor decrease in pay, and did
not require Spearman to operate a forklift.

In addition,

Spearman’s hours changed from a day shift to a night shift.

Had

the USPS forced Spearman to transfer to this position after
abolishing his Tour 2, Level 5 position, then it may constitute
an adverse employment action.
However, the USPS did not transfer Spearman to the Tour 1,
Level 4 position.

Instead, Spearman had the choice to remain on

Tour 2 with different days off, or bid on positions in different
tours.

Spearman provides no evidence that anything other than

his days off would have changed had he simply opted to remain on
Tour 2.

Such a transfer could not possibly be characterized as

a transfer to a “dead end job” or a transfer to an “undesirable
shift that left the plaintiff with none of the customary free
time he was accustomed to.”

See Fallon, 66 Fed. Appx. at 351.

Spearman even admits that the Realignment “did not affect [his]
seniority, opportunity for overtime, opportunity for promotion,
or materially change his responsibilities in a way that setback
his career.”

(Pl.’s Resp. ¶ 38.)

That Spearman opted to bid on

a Tour 1, Level 4 position rather than accept a transfer to a
different Tour 2 position does not transform the Realignment
into an adverse employment action.

Therefore, no reasonable

jury could find that Spearman was subject to an adverse

12

employment action.
2.
In addition to being unable to prove that he was subject to
an adverse employment action, Spearman also cannot prove that he
was replaced by someone significantly younger to support an
inference of discrimination.
Spearman argues that he was replaced in his job operating a
forklift in the APPS reporting area on Monday through Friday by
Joanne Colella, who was 43 years old.
11.)

(Pl.’s Br. in Opp., at

However, Spearman, or perhaps his attorney, must be aware

that this argument is entirely disingenuous.

Spearman bases his

assumption that Colella “replaced” him on the fact that he saw
Colella operating a forklift on Mondays.
at 6.)

(Sunnergren Aff. Ex L

However, as Spearman himself admits in his deposition,

Colella was part of the mailhandler relief crew that was created
during the realignment to fill in when the regular crew was off,
which, in Spearman’s case, included Mondays.
50:18-19.)

(Pascal Aff. Ex. F

Spearman also admits that Colella’s days off were

Thursday and Friday, as opposed to Saturday and Sunday, and that
Colella did not drive the forklift in the APPS reporting area
Monday through Friday, but instead “relieves in different
areas.”

(Id. at 51:3-6, 52:2-6.)

Given that Spearman is aware

that Colella’s responsibilities and days off are different from
what his were prior to the Realignment, the Court cannot

13

understand how Spearman and his attorney can attempt to argue
that Spearman’s old job operating a forklift Monday through
Friday “still existed, but was filled by a younger employee,
Joanne Coella (sic.).”

(Pl.’s Br. in Opp., at 11.)

In any

event, based on Spearman’s own deposition testimony it is clear
that no reasonable jury could find that Spearman was replaced by
someone significantly younger to support an inference of
discrimination.
C.
Lastly, summary judgment in favor of Defendant should be
granted because, even assuming that Spearman could make a prima
facie showing of age discrimination, Spearman cannot show that
Defendant’s stated non-discriminatory reasons for the
Realignment were a pretext for age discrimination.
In response to Spearman’s charge of age discrimination,
Defendant argues that the Realignment was an attempt to “match
mailhandler hours to workload, increase efficiencies, and reduce
high overtime usage.”

(Def.’s Br. in Supp., at 27.)

According

to Herrick, the USPS has not hired career employees for a long
period of time.

(Pascal Aff. Ex. H 31:11-25.)

As a result,

when people retired, if remaining employees did not bid on the
position held by the now retired employee, the bid would remain
vacant.

(Id., at 31:19-25.)

These vacancies, according to

Herrick, could create inefficiencies if they were in areas where

14

the need for work was high.

(Id.)

The Realignment attempted to

fix this inefficiency by staffing workers on the days when there
was the most need, and using mailhandler relief employees when
the need was less.

(See generally id. at 31:11-34:4; Pascal

Aff. Ex. K 22:11-25.)

Plaintiff’s bid was thus abolished

because, according to Herrick and Operations Specialist Hanna,
Sunday and Monday are generally the lightest days at the
Bellmawr Facility.
K 22:11-25.)

(Pascal Aff. Ex. H 39:16-18; Pascal Aff. Ex.

Consequently, the days off for forklift operators

on Tour 2 were shifted to Sunday and Monday, with the
mailhandler relief employees filling in on those days.

(Def.’s

SOMF ¶ 25, Pl.’s Resp. ¶ 25.)
Spearman argues that this explanation is pretextual.

In

support of this argument, Spearman states that no research was
done as to how the realignment would help reduce overtime and
that Herrick “did not discuss her proposed plan with anyone in
senior management or with other postal distribution centers.”
(Pl.’s Br. in Opp., at 14.)

Spearman also states that “after

the implementation of the realignment the Postal Service has
actually incurred millions, biweekly, on overtime in the
Bellmawr, NJ facility.”

(Pl.’s SOMF

¶ 55.)

Spearman’s arguments are either inaccurate or irrelevant.
It is false to claim that Herrick “did not discuss her proposed
plan with anyone in senior management or with other postal

15

distribution centers,” and that no research was done as to how
the realignment would reduce overtime.

Both Herrick and Hanna

testified that Herrick discussed the plan with several members
of her staff, such as Jerry Fillman, who was the Manager of
Plant Support, Hanna, the Managers of Distribution Operations,
key supervisors on all three tours, and some of the support
staff.
17:10.)

(Pascal Aff. Ex. H 49:9-50:2, 53:9-53:14; Ex. K 16:3Further, Spearman admits in his response to Defendant’s

Statement of Material Fact that there was a “realignment team”
which met on “several occasions to collaborate.”
¶ 26.)

(Def.’s Resp.

In addition, Spearman admits that several documents and

spreadsheets were used by the Realignment team while developing
the plan, undermining his argument that no research was done as
to how the realignment would reduce overtime.
Spearman’s attempt to use the ultimate success or failure
of the plan at reducing overtime also misses the mark.

“A

plaintiff may not establish pretext simply by showing that the
employer’s decision was wrong or mistaken because the main issue
is whether the employer acted in a discriminatory manner.”
Robinson, 368 Fed. Appx. at 305 (citing Fuentes, 32 F.3d at
765).

Simply put, Spearman cannot point to any evidence which

suggests that Defendant acted in a discriminatory manner.
Spearman’s attempts to show pretext are also unavailing
because they only address one of Defendant’s stated reasons for

16

implementing the Realignment, namely, to reduce overtime.
However, Defendant also stated that the plan was intended to
match mailhandler hours to workload and increase efficiencies.
As far as the Court can tell, Spearman does not even attempt to
argue that these legitimate, non-discriminatory reasons, are
pretextual or that the Realignment failed in achieving these
goals.
Overall, while the Realignment affected a great number of
USPS employees, there is nothing in the record to suggest that
the Realignment was motivated by prejudice towards older USPS
employees, or that the reasons for the Realignment put forth by
Defendant are pretextual.

One could even argue that the most

senior employees were the best protected during the Realignment,
as their seniority gave them priority during the bidding
process, and some of the older employees who were going to be
retiring soon were even allowed to keep their previously
scheduled days off. (Def.’s SOMF ¶ 42.)

On these facts, it is

clear that no reasonable jury could find Defendant’s stated
reasons for realignment to be a pretext for age discrimination.

17

IV.
For the foregoing reasons, Defendant’s Motion for Summary
Judgment is hereby granted in full.

An appropriate Order will

accompany this Opinion.

Dated: July

17th_, 2013

s/Joseph E. Irenas
Joseph E. Irenas, S.U.S.D.J.

18