Sanchez v. Brennan

Filing 37

Order signed by Judge James S. Gwin on 4/27/2021 granting Motion for summary judgment (Related Doc # 32 )(S,KM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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PABLO SANCHEZ,
:
:
Plaintiff,
:
:
vs.
:
:
MEGAN J. BRENNAN,
:
:
Defendant.
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:
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CASE NO. 1:19-cv-02133
OPINION & ORDER
[Resolving Doc. 32]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiff Pablo Sanchez sues the United States Postal Service (“USPS”) for alleged
employment race-based discrimination and retaliation under Title VII of the Civil Rights
Act of 1964. 1
Defendant USPS now seeks summary judgment and argues that Plaintiff cannot
sustain his discrimination and retaliation claims because he did not suffer an adverse
employment action and cannot prove that he was treated differently than other similarly
situated employees. 2 Plaintiff opposes. 3
For the following reasons, the Court GRANTS Defendant’s summary judgment
motion.
I.

Background
Now-retired Plaintiff worked more than thirty years and mostly in Lorain, Ohio, as

a letter carrier for Defendant Postal Service. 4

1

Doc. 1; 42 U.S.C. § 2000e.
Doc. 32; Doc. 32-1.
3
Doc. 33.
4
Doc. 1 at 2; Doc. 32-1 at 2.
2

Case No. 1:19-cv-02133
Gwin, J.
The events for this case happened in 2009 and 2010. In that period, Plaintiff
Sanchez contends that Defendant retaliated against him for his previous protected Equal
Employment Opportunity (“EEO”) activity.
At the time, Plaintiff Sanchez’s supervisor had spoken with him about his tendency
to return “a few minutes late” from his shifts. 5 Mail carriers were supposed to call their
supervisor by 3:00 p.m. if they were going to be late returning from their shifts. 6
Apparently, supervisors were evaluated on whether the supervisors kept a cap on
overtime. 7
Plaintiff Sanchez filed his first EEO complaint in 2009. 8 In the February 2009
complaint, Sanchez received a disciplinary warning letter for his late returns, which he
contested. 9

After talks with between the Lorain Postmaster and Plaintiff’s union

representative, Plaintiff claims he was permitted to take thirty extra minutes to deliver the
mail on Tuesdays when there were extra advertisements. 10 Defendant denies that the
parties had an agreement allowing Sanchez, and Sanchez alone, Tuesday overtime. 11
After this disciplinary action, Plaintiff complains that his supervisors conducted
unannounced inspections to ensure he was working in a timely fashion. 12

5

Doc. 32-1 at 3–4.
Id. at 2.
7
Doc. 35 at 3.
8
Doc. 32-1 at 6–8.
9
Id. at 4.
10
Id.; Doc. 33 at 4–5.
11
Doc. 32-1 at 4.
12
Id. at 5.
6

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Case No. 1:19-cv-02133
Gwin, J.
In his 2009 EEO complaint, Plaintiff contended that the warning letter and focus on
his lateness amounted to racial discrimination. Plaintiff’s EEO complaint and a federal
lawsuit were dismissed. 13
Plaintiff filed his second EEO complaint in 2010 after receiving a second disciplinary
warning letter for failing to complete his delivery shift on time and for disobeying a direct
supervisor order. 14
On September 21, 2010, Plaintiff’s supervisor directed him to leave half of his
Tuesday advertisements and to finish his deliveries on time. The Lorain Post Office
received large numbers of advertising circulars and Sanchez’s supervisor told Sanchez to
leave one-half of the circulars for delivery the following day. 15
Instead, Plaintiff took all of his advertisements and returned late. Plaintiff Sanchez
claims he had been given a special thirty-extra-minute arrangement that allowed him extra
time. 16 Plaintiff’s second EEO complaint argued that Defendant failed to “honor” the extratime arrangement and that the second warning letter was retaliation for his earlier EEO
complaint. 17
An administrative law judge held a hearing on Plaintiff’s complaint in 2012 and
issued a decision in Sanchez’s favor in 2019. 18 This lawsuit followed. 19 In this lawsuit,
Plaintiff alleged discrimination and retaliation from his 2010 warning letter. 20 Plaintiff now

Id. at 5–6; Doc. 33 at 6–7.
Doc. 32-1 at 6.
15
Doc. 35 at 3.
16
Doc. 32-1 at 6; Doc. 33 at 7–8.
17
Doc. 32-1 at 6.
18
Id. at 7. The administrative law judge awarded Sanchez $7,500. Id. See also Doc. 33 at 8–10.
19
Doc. 32-1 at 8.
20
See Doc. 1.
13
14

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Case No. 1:19-cv-02133
Gwin, J.
gives up the discrimination claim but says sufficient evidence supports the retaliation
claim. 21
II.

Discussion
a. Summary Judgment Standard
A party is entitled to summary judgment if “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” 22 There is a genuine issue of material fact when the “a reasonable jury
could return a verdict for the nonmoving party” based on the evidence. 23 The Court views
all evidence in the light most favorable to the nonmoving party. 24 The nonmoving party
“must show sufficient evidence to create a genuine issue of material fact” 25 as to each of
the claim’s required elements. 26 Summary judgment is appropriate “[i]f the evidence is
merely colorable . . . or is not significantly probative.” 27
b. Plaintiff’s Discrimination Claim
In a footnote in Plaintiff’s Opposition to Defendant’s Summary Judgment motion,
Plaintiff states that he does “not disput[e] Defendant’s Motion as to Count 1.” 28 Plaintiff
does not oppose judgment on his discrimination claim.

The Court grants summary

judgment on Plaintiff’s discrimination claim.

21
22
23

Doc. 33 at 1 n.1.

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citation omitted).
Peffer v. Stephens, 880 F.3d 256, 262 (6th Cir. 2018) (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986)).

Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 496, 500–01 (6th Cir. 2007) (citation omitted).
Id. (citation omitted).
26
Id. (noting that a scintilla of evidence is not enough to defeat a summary judgment motion).
27
Liberty Lobby, Inc., 477 U.S. at 249–50.
24
25

28

Doc. 33 at 1 n.1.

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Case No. 1:19-cv-02133
Gwin, J.
c. Plaintiff’s Retaliation Claim
Plaintiff claims that Defendant retaliated against him in violation of Title VII.
Plaintiff claims that Defendant’s second 2010 disciplinary warning letter retaliated against
Sanchez for Sanchez’s first 2009 protected EEO activity. 29
To establish a prima facie retaliation claim under Title VII, a plaintiff must show: (1)
that he engaged in a protected activity; (2) that the defendant knew about the protected
activity; (3) that the defendant acted in a way that was “materially adverse” to the plaintiff;
and (4) that there is a causal connection between the protected activity and the materially
adverse action. 30 For retaliation claims, a plaintiff does not have to suffer an adverse
employment action that affects the terms and conditions of employment.

Rather, a

materially adverse retaliation action is one that “might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.” 31
If a plaintiff makes a prima facie retaliation case, the burden shifts to the defendant
to provide a “legitimate, nondiscriminatory reason” for its actions. A plaintiff must then
show that the defendant’s proffered reason was pretextual. 32
“In actions properly brought under Title VII, plaintiffs are entitled to a trial de novo
in which the slate is wiped clean and all questions (including whether the employer
actually committed illegal discrimination and what, if any, relief is still owed to the plaintiff)
are decided anew by the district court.” 33

29

Doc. 33 at 9–11.

Rogers v. Henry Ford Health Syst., 897 F.3d 763, 775 (6th Cir. 2018).
Id. at 776 (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).
32
Id. at 777.
33
Dellinger v. Potter, No. 3:08–cv–00219, 2009 WL 2243834, at *5 (S.D. Ohio July 22, 2009)
(citing Chandler v. Roudebush, 425 U.S. 840, 846–47 (1976); Scott v. Johanns, 409 F.3d 466, 469 (D.C. Cir.
30
31

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Case No. 1:19-cv-02133
Gwin, J.
In the present case, Defendant argues two main issues with Plaintiff’s retaliation
claim. First, Defendant contends that Plaintiff’s second warning letter was not a sufficiently
adverse employment action. 34 Second, Defendant argues that Plaintiff cannot show a
causal link between Plaintiff’s first EEO complaint and Defendant’s second warning letter. 35
The Court agrees with Defendant. Plaintiff does not present a genuine issue of fact
to defeat summary judgment in this instance.
First, Plaintiff’s letter of warning does not amount to an adverse employment action.
Plaintiff’s employment did not change because of the warning letter and Plaintiff does not
claim any consequences—harmful or otherwise—following the second warning letter. 36 A
Title VII retaliation claim’s adverse action standard is less demanding than, for example,
the standard for a Title VII discrimination claim. 37 But even Plaintiff’s proffered case law
shows that a letter of warning on its own is not an adverse employment action here. Some
other consequence is needed. 38 Further, the context in each case is important to the

2005); and Abrams v. Johnson, 534 F.2d 1226, 1227 (6th Cir. 1976)). See also Bent-Crumbley v. Brennan,
No. 17-11767, 2019 WL 861116, at *2 (E.D. Mich. Feb. 22, 2019) (collecting cases).
34
Doc. 32-1 at 15.
35
Id. at 16.
36
Doc. 33 at 11–13.
37
Rogers, 897 F.3d at 776.
38
See, e.g. Redlin v. Grosse Point Pub. Sch. Sys., 921 F.3d 599, 608, 614 (6th Cir. 2019) (finding
materially adverse actions where Plaintiff’s transfer and poor evaluations resulted in less pay, less prestige,
and shorter contracts); Crawford v. JP Morgan Chase & Co., 531 Fed. Appx. 622, 628 (6th Cir. 2013) (finding
an issue of material fact where Plaintiff was transferred to a “lesser” job); Delia v. Donahoe, 862 F. Supp. 2d
196, 223 (E.D.N.Y. 2012) (finding that a Postal Service employee’s second warning letter was an adverse
employment action because it led to his “emergency placement in off-duty status” and “letter of removal”);
Revennaugh v. U.S. Postal Serv., No. 2:16-cv-783, 2019 WL 4674250, at *17 (S.D. Ohio Sept. 25, 2019)
(finding that a Postal Service employee made a prima facie FMLA retaliation claim and finding that she
suffered an adverse employment action when she was required to attend a disciplinary hearing while on
leave but there was no resulting discipline).
Plaintiff also argues that EEOC guidance supports the argument that a warning letter, without more,
constitutes an adverse employment action. But that same guidance also notes, “A fact-driven analysis applies
to determine if the challenged employer action(s) in question would be likely to deter participation or
opposition. . . . Matters are not actionable as retaliation if they are not likely to dissuade an employee from

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Case No. 1:19-cv-02133
Gwin, J.
adverse employment action determination. 39 Here, the second warning letter did not
“dissuade[ Sanchez] from making or supporting a charge of discrimination” to the EEOC. 40
Plaintiff still made a second EEO complaint.
Second, Plaintiff does not show a causal connection between his first EEO complaint
and his second warning letter.
In the 2010 incident, Sanchez’s supervisor gave Sanchez specific direction that
Sanchez should delay delivering one-half of advertising circulars for one day to avoid any
need for overtime. Although acknowledging that he received this supervisor’s order,
Sanchez ignored it. 41
Defendant says Sanchez received the 2010 warning because he violated a direct
supervisor order. 42
In other words, Plaintiff does not provide evidence that Defendant or its employees
had a retaliatory motive. The ALJ assigned to Plaintiff’s EEO complaint credited one of
Sanchez’s supervisors’, Ooten’s, statement that, when approached about lateness issues,
Sanchez was rude and often said something to the effect of “this is harassment and I will
be filing an EEO.” 43 To the ALJ, this was a sign that Defendant had Sanchez’s past EEO
activity in mind when it issued the second warning letter and provided a possibly retaliatory
reason for issuing the letter. 44

engaging in protected activity in the circumstances.” EEOC Notice No. 915.004, 2016 WL 4688886, at *18
(2016).
39
Burlington, 548 U.S. at 68–69 (“Context matters.”).
40
Rogers, 897 F.3d at 776.
41
Doc. 35 at 3–5.
42
Id. at 5–6.
43
Doc. 33 at 9; Doc. 33-6 at 44. Supervisor Ooten also testified that he was unaware of any EEO
activity related to Plaintiff Sanchez in October 2010. Doc. 33-6 at 119.
44
Doc. 33-6 at 17.

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Case No. 1:19-cv-02133
Gwin, J.
The Court is not convinced that this comment or even Defendant’s knowledge of
Plaintiff’s past EEO complaint is enough to show that Defendant sought to deter Plaintiff
from future complaints or punish him with the warning letter. Being aware of Plaintiff’s
history does not necessarily suggest animus. Ooten’s comment could just as easily be
interpreted as saying that Plaintiff was unbelievable because he often threatened to make
EEO complaints but did not act.
Moreover, while temporal proximity is a somewhat flexible standard that can be
used to infer retaliatory motive, 45 Plaintiff’s arguments do not prevail here. The second
warning letter came more than a year after Plaintiff’s first EEO complaint and grew from
the specific September 21, 2010, incident. 46 The timing between Plaintiff’s protected
action and Defendant’s alleged retaliation is longer than Sixth Circuit courts usually require
to show temporal proximity. 47
Further, temporal proximity alone is typically not enough to establish retaliation. 48
Even with Ooten’s comment that Plaintiff Sanchez often threatened to file an EEO
complaint, a second warning letter a year after Plaintiff’s first complaint simply does not
provide enough evidence to infer retaliation.
As Defendant argues, a reasonable jury would find insufficient relation between the
2009 discrimination charge and the 2010 warning letter. 49 Plaintiff has not shown that
Defendant’s reasoning is pretext.

See Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 550 (6th Cir. 2008).
Doc. 32-1 at 6–7.
47
See Imwalle, 515 F.3d at 550.
48
Id. See also Yazdian v. ConMed Endoscopic Techs., Inc., 793 F.3d 634, 650 (6th Cir. 2015).
49
Doc. 32-1 at 16 (citing EEOC v. Ford Motor Co., 782 F.3d 753, 770 (6th Cir. 2015)).
45
46

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Case No. 1:19-cv-02133
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Third, unlike the ALJ, the Court is not persuaded by Plaintiff’s evidence that other
letter carriers returned late on the same day for which he was given a second warning
letter. 50 This does not support a causal connection between Plaintiff’s first EEO complaint
and Defendant’s second warning letter. The Sixth Circuit requires that comparators be very
similarly situated to Plaintiff. 51 Here, the appropriate comparison is not to other mail
carriers who returned late on September 21, 2010. The proper comparison would be to
other late mail carriers who were also specially instructed to leave half of their
advertisements and to return on time, but who took all of their advertisements and returned
late.
A reasonable jury would not find a causal connection between Sanchez’s first EEO
complaint and his second warning letter.
III.

Conclusion
For the foregoing reasons, the Court GRANTS Defendant’s summary judgment

motion.
IT IS SO ORDERED.
Dated: April 27, 2021

s/

James S. Gwin

JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

50

Doc. 33 at 15; Doc. 33-6 at 16.
See Hillman v. Shelby Cty., 515 Fed. Appx. 365, 372 (6th Cir. 2013) (“The proper inquiry is
whether the other employees are similarly situated in all relevant aspects.”) (citing Jackson v. FedEx Corp.
Servs., Inc., 518 F.3d 388, 393 (6th Cir. 2008) and Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d
344, 352 (6th Cir. 1998)).
51

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