Brown v. Donahoe et al

Filing 54

ORDER: Granting in Part Denying in Part Motion for Summary Judgment 25 . Signed on 9/16/2013 by Magistrate Judge Thomas M. Coffin. (plb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

SHELLEY P. BROWN,

6: 11-cv-6380-TC
Plaintiff,
ORDER

v.
PATRICK R. DONAHOE, POSTMASTER
GENERAL OF THE UNITED STATES
POSTAL SERVICE AND THE UNTIED
POSTAL SERVICE,
Defendants.
COFFIN, Magistrate Judge:
Plaintiff, Shelley Brown, brings this action alleging race and color discrimination, sex
discrimination and retaliation for her complaints of race and color discrimination under both federal
and state law. Plaintiff concedes that Title VII provides the exclusive remedy for the alleged
discrimination. Accordingly, plaintiffs state law discrimination claims are dismissed. Defendant

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moves for summmy judgment as to the remaining federal claims.
Plaintiff is an African American female who has been employed by defendant the United
States Postal Service (USPS) for approximately 30 years. During her tenure with defendant, plaintiff
made complaints of discrimination in 2004, 2010, and 2011. Plaintiff asserts that her 2004
complaint spuned the Portland District of the USPS for Oregon and Southwest Washington to
implement initiatives for providing equality in employment. Consequently, plaintiff obtained the
position of diversity coordinator in which she advised on diversity and equal employment
opportunity (EEO) issues. As the diversity coordinator, plaintiff worked out of the USPS' Eugene
plant. After a change of management at the district level, the diversity coordinator position was
eliminated in 2009.
In 2010, plaintiff took a labor relations position at the USPS processing and distribution
facility in Portland, Oregon. This position resulted from plaintiffs settlement of the 2010 EEO
complaint. The position lasted for about 120 days.
In about June of20 10, plaintiffrequested a lateral transfer into the supervisor of maintenance
operations (SMO) position held by Dan Ehlers who was retiring at about that time. The position was
not posted and at the end of June, Scott Foster, the manager of postal operations notified plaintiff
that her request for the transfer was granted. 1 However, because plaintiff had not yet finished her
labor relations position, she did not stmi the SMO job until October of2010.
The government assetis that in 2010, Pmtland District maintenance manager lead, David
Long, who coordinates the hiring policy and approvals, advised his managers in the district that he

1

Plaintiff previously sought lateral transfers into an SMO position at the Eugene facility in
2001 and 2004.
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expected smaller facilities to have only one SMO working the day shift. The Eugene and Salem
plants had not been employing this policy. At the time, the Eugene plant's three SMOs all worked
the day shift. Long apparently complained to Eugene maintenance manager Barry Brenner and
Eugene plant manager Robert Yore that there was not enough maintenance support for equipment
problems during the swing and graveyard shifts. 2
The government asserts that when Ehlers prepared to retire, plant manager Yore informed
Brenner that he wanted the new SMO to work the evening shift because he felt that it was logical
to have the SMO in charge of custodial maintenance in the evening shift because that SMO had two
custodian group leaders assisting. The longest tenured SMO, Robeli Hohenberger (in charge of
technical machine repair and supervision of electrical technicians) was, according to Long, better
suited for the day shift because that is when the mail processing rnachines were not running. The
third SMO, Jesse Soto, was in charge of building/facilities maintenance. Brenner resisted, but
apparently agreed to try a new schedule where the new custodial SMO would work a modified swing
shift from 12:00 pm to 9:00 pm. 3
As noted, at the time plaintiffs transfer request was granted, all three Eugene SMO's worked
the day shift and Ehlers specifically worked from 7:30am to 4:00pm. Although there is a dispute

2jt should be noted that Long was the Eugene plant manager in 2007 and 2008 and
apparently complained then that Brenner did not have sufficient coverage for the swing and
graveyard shifts, but despite his authority over Brenner, he chose not push for the shift changes
while he was in Eugene because he asserts that Brenner was good about making sure a supervisor
came to the plant whenever Long called.
3

Defendant also asse1is that the Salem plant was required to implement this new schedule
for SMOs, but Long's deposition testimony is not clear on the issue. It appears to indicate that
one SMO came in a little early to cover the end of the graveyard shift and worked into the regular
day shift and the other SMO came in a little late to work into the swing shift. Deposition of
David Long (attached to Declaration of Natalie K. Wright (#28)) at pp. 22, 43.
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about plaintiff's knowledge of the SMO duties in general and the specifics of the custodial SMO
duties, it is undisputed that when Ehlers left, the position was temporally filled by Mike Swangle
from June to October 2010 and he worked from 7:30am to 4:00pm. More importantly, plaintiff
states that Brenner told her the hours for her would be the same when she took over. When plaintiff
came to the Eugene plant to start work as the custodial SMO, she worked the day shift from 7:00am
to 4:00pm. SMO Jesse Soto states that in June of2010 after a district teleconference with Long,
Yore, Brenner and Hohenberger, Long said:
"I hope you are sitting down because your new maintenance supervisor is Shelly
Brown." Yore responded, "I don't have a say in this." 1;-_ong told him "no it has
already been decided." The telephone conference then concluded and Long Hung up.
Yore then tm;ned to Brenner and said, "we will change her shift then and see how she
likes that." Yore then left the meeting. I went to Brenner and told him that it was not
right to change plaintiff's shift like that. I told Brenner that she will not put up with
it just like none of use would put up with it. Brenner responded, "it won't change,
don't wony about it."
Declaration of Jess Soto (#38)

at~

4.

On about November 4, 2010, Brenner notified plaintiff that her hours were being changed
to the swing shift effective November 22,2010. As a result, plaintiff worked different hours than
the vast majority of employees she supervised shifting some of her duties such as overseeing tasks,
accounting for workload and scheduling to non-supervisory employees. In addition, plaintiff was
then required to supervise electricians, engineers and mechanics and assist in fixing equipment for
which she was not trained. Moreover, plaintiff's new hours hindered her ability to attend manager
meetings as the other SMOs and maintenance manger worked the day shift when the meetings were
held.
In March of 2011, plaintiff filed another EEO complaint asserting discrimination based on

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race and sex and retaliation for her prior EEO activity due to the shift change. An investigation was
conducted from April20 11 to August 2011. Soto notified Yore that he would be participating in the
investigation and drafting an affidavit on plaintiffs behalf. Other Eugene facility employees
participated as well.
Maintenance manager Brenner retired in June of 2011 and was replaced by acting
maintenance manager Robert Atkinson. On June 27, 2011, Atkinson infmmed plaintiffthat effective
July 9, 2011, she would be placed on the graveyard shift. At that time, Atkinson also infotmed Soto
that he would be placed on the swing shift.
On November 24, 2011, plaintiff filed another EEO complaint. Plaintiff retired from the
USPS on October 1, 2012. Soto has also left the Eugene facility. Since plaintiffs retirement, no
Eugene SMOs have been on the swing shift or graveyard shift.

A.

Race and Sex Discrimination
To prevail on her disparate treatment claims alleging race and sex discrimination, plaintiff

must demonstrate: (1) that she belonged to a protected class; (2) that she perfmmed her job
satisfactorily; (3) that she suffered an adverse employment action; and (4) that the USPS treated her
differently than a similarly situated employee who does not belong to the same protected class as the
plaintiff. See McDonnell Douglas Com. v. Green, 411 U.S. 792,802 (1973). If plaintiff establishes
a prima facie case, then defendant can rebut the presumption of discrimination that arises by
producing evidence showing that defendant undertook the challenged employment action for a
"legitimate, nondiscriminatory reason." Id. If defendant rebuts the presumption, then plaintiff can
defeat summmy judgment by offering evidence demonstrating the proffered explanation is a pretext
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for discrimination. See Wan-en v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir. 1995) (to survive
summary judgment, plaintiff must produce enough evidence to allow a reasonable fact finder to
conclude either that the alleged reason for discharge was false, or that the tme reason for the
discharge was a discriminatory one).
Defendant argues it is entitled to summmy judgment on these claims because plaintiff cannot
establish an adverse employment decision or that other similarly situated employees were treated
more favorably.
For purposes ofTitle VII discrimination, an adverse employment action is one that materially
affects the compensation, terms, conditions, or privileges of employment. Davis v. Team Elec. Co.,
520 F.3d 1080, 1089 (9th Cir. 2008). In this case, viewing the evidence in a light favorable to
plaintiff supports a conclusion that defendant: reassigned plaintiff to the swing shift and then
graveyard shift; excluded her from some or even most of the impromptu management meetings;
removed her from a majority of the employees she ostensibly supervised; required her to supervise
employees in areas over which she had no experience or training; and required her to assist in duties
for which she had no training such as fixing processing equipment. A trier of fact could conclude
that defendant assigned plaintiff to more burdensome work which is an adverse employment action.
See, id. (assigning more, or more burdensome work responsibilities, is an adverse employment
action). Moreover, the exclusion from management meetings may also qualify as adverse. See id.
at 1090 (suggesting that inviting male co-workers on the site to meetings while excluding the female
plaintiff satisfies adverse action element and favorable treatment of non-protected class members
element). In addition, defendant's argument that the graveyard shift actually benefitted plaintiff by
increasing her pay to night pay actually suggests the opposite--that the night shift was reasonably

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viewed as an adverse condition of employment (which necessitated more pay). There is no evidence
that any of the other SMO's expressed a preference for such hours and they even suggest that it did
not make sense to have all three shifts covered by an SMO.
Defendant makes much of the fact that plaintiff did not make herself fully aware of the
particular duties of the SMO job and that the decision to change Ehlers' SMO position to a different
shift was made prior to Ehlers' retirement. However, plaintiff has presented evidence that the
decision was made after Vore became aware that plaintiff would be getting the job. Additionally,
it is undisputed that the shift change for the custodial SMO position was actually implemented after
plaintiffbegan working in the position. Moreover, it appears that now that plaintiffhas retired, there
are no SMOs working outside the day shift or at least have most hours within the traditional day shift
time frame. 4 Plaintiff has produced sufficient evidence to raise an issue of fact with respect to
whether she suffered an adverse employment action.
Plaintiff has also produced sufficient evidence for a trier of fact to conclude that the USPS
treated her differently than a similarly situated male and/or Caucasian employees. Plaintiff argues
and defendant has not rebutted that she is the first female to hold an SMO position at the Eugene
facility and that the change in hours resulted in her exclusion from many management meetings that
male SMOs were able to attend. An inference can be drawn that the motivation for this employment
action was plaintiff's gender. Whether the other SMOs had greater experience or differing job

4

It is unclear if this because of a policy change or because the positions (Soto's and
plaintiff's) were not refilled. Defendant maintains that the only SMO in Eugene now is
Hohenberger. However, it appears that the Salem facility has not implemented the change
beyond scheduling the SMOs to come in a little early or stay a little late.
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duties' does not negate a finding that they were similarly situated to plaintiff.
In addition, when Ehlers held the job that plaintiff took over, despite Long's purported
insistence that SMOs cover other shifts, none of the SMOs, who were male and Caucasian, worked
outside the day shift. When other non-supervisory male ·and/or Caucasian employees filled in during
absences by plaintiff, they did not work her hours, but worked the day shift as well. In addition,
Mike Swangle, a Caucasian male employee who filled Ehlers's SMO position for several months
while the Eugene facility awaited plaintiff's arrival, despite the alleged time policy change asserted
by defendant, worked the day shift along with the other SMOs. 6
It should be noted that of the approximately 11 supervisors at the Eugene facility, plaintiff
was the only African American. Plaintiff has presented testimony from various employees that
although they did not observe any outwardly concrete acts of discrimination, their personal
observations of the way plaintiff was treated left them with the distinct impression that she was
treated differently than non-African Americans performing the custodial SMO position. See. e.g.,
Deposition ofKathryn Gray (attached to declaration ofTonyia Brady (#39) as Exhibit 16) at pp. 17,
18, 26-27. Plaintiff has presented sufficient evidence to show an issue of fact as to whether the

5

It is interesting to note that for purposes of job duties defendant argues that all SMOs
have the same job description when arguing plaintiff did not suffer an adverse employment
action, but then argues she is not similarly situated to the other SMOs, in patt, because of their
specialized knowledge in their respective areas of supervision. In addition, if the specialized
knowledge of machinery by Hohenberger and specialized knowledge in facilities by Soto was so
important as to remove them from being similarly situated, why did plaintiff get moved into a
time shift were she was more likely to supervise employees in those areas than employees within
the custodial speciality.
6

Again, defendant argues that the employees filling in are not similarly situated because
they are not actually SMOs. But they were temporarily performing not only as SMOs, but
specifically as the custodial SMO and thus were literally perfotming plaintiff's job.
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USPS treated her differently than a similarly situated employee who does not belong to the same
protected class as she does.
Having established a prima facie case, a rebuttable presumption that the employer unlawfully
discriminated against plaintiff is created. Lyons v. England, 307.F.3d 1092, 1112 (9th Cir. 2002).
The burden of production then shifts to the employer to articulate a legitimate, nondiscriminatory
reason for its action. Id.

If the employer meets this burden, the presumption of unlawful

discrimination "simply drops out of the picture." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511
(1993). Plaintiff then must produce sufficient evidence to raise a genuine issue of material fact'as
to whether the employer's proffered nondiscriminat01y reason is merely a pretext for discrimination.
Coleman v. Quaker Oats Co., 232 F.3d 1271, 1282 (9th Cir. 2000).
Plaintiff is not required, however, to produce additional independent evidence of
discrimination at the pretext stage if the prima facie case raises a genuine issue of material fact
regarding the truth of the employer's proffered reasons. Chuang v. University of California Davis,
225 F.3d 1115,1127 (9th Cir. 2000). "[A] plaintiff can prove pretext in two ways: (1) indirectly,
by showing that the employer's proffered explanation is unworthy of credence because it is internally
inconsistent or othetwise not believable, or (2) directly, by showing that unlawful discrimination
more likely motivated the employer." Noyes v. Kelly Services, 488 F.3d 1163, 1170 (2007) (intemal
citation and quotation omitted). "[I]n the context of summmy judgment, Title VII does not require
a disparate treatment plaintiffrelying on circumstantial evidence to produce more, or better, evidence
than a plaintiff who relies on direct evidence." Cornwell v. Electra Central Credit Union, 439 F.3d
1018, 1030 (9th Cir. 2006) (noting tension with the Godwin v. Hunt Wesson, Inc., 150 F.3d 1217
(9th Cir. 1998), line of cases and their standard requiring specific and substantial circumstantial

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evidence of pretext).
Defendant argues that its policy change regarding the SMO shifts was legitimate because it
was expected by the Westem Area officials for plants such as Eugene to have only one SMO on the
day shift. The credibility of this explanation is called into question because a chief proponent, David
Long, did not implement the policy when he was the Eugene plant manager. Indeed, even after
plaintifflateraled into the custodial SMO position, Soto and Hohenberger remained on the day shift
until Soto was moved into swing after he officially sided with plaintiff in the April 2011 to August
2011 EEO investigation. This alone should be enough evidence of pretext.
Moreover, it appears the Salem plant did not implement the policy. Also as noted above, the
policy was not followed when other workers at the Eugene facility filled in for plaintiff. 7 In addition,
since plaintiffs departure, even though defendant argues it has not refilled Soto's and plaintiffs
positions, SMOs work only the day shift in Eugene . Quite frankly, plaintiffs case is fairly strong
and there is sufficient specific and substantial evidence for a trier of fact to ultimately conclude that
plaintiff suffered unlawfhl discrimination on the basis of gender and race. Defendant's motion for
summmy judgment as to plaintiffs discrimination claims is denied.

B.

Retaliation
The McDonnell Douglas burden shifting framework also applies to a claim of retaliation

under Title VII. To establish a prima facie retaliation claim, plaintiff must show: (1) involvement
in a protected activity; (2) an adverse employment action taken against her; and (3) a causal link

7

Defendant's argument that the only way it could get "volunteers" to fill in was by
allowing them to work the day shift borders on the absurd and further demonstrates that the
change to the graveyard shift was indeed an adverse employment action.
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between the two.

See Littlev. Windermere Relocation. Inc., 301 F.3d 958, 969 (9th Cir. 2002).

Defendant concedes that plaintiff engaged in the protected activity ofprotecting her Title VII
rights by filing EEO complaints. As noted above, plaintiff suffered adverse employment decisions.
Moreover, the record is replete with evidence that nearly evetyone in the Eugene plant was aware
of plaintiff's EEO complaints." In addition, there can be no dispute that relevant decision makers
were aware of the investigation that was conducted in April 2011 to August 2011 which occutTed
prior to and during Atkinson's decision to place plaintiff on the graveyard shift and Soto (who
suppmied plaintiff's EEO complaint) on the swing shift. At a minimum, the retaliation claim
survives as to the graveyard shift employment decision. 9
Defendant's argument that plaintiff was not dissuaded from filing further complaints ignores
the objective nature of the adverse action element. A trier of fact could conclude that actions taken
against plaintiff would dissuade a reasonable worker from making EEO complaints. There is

8

While the employees at the plant used the word rumor to describe the knowledge,
plaintiff relies on more than rumor and innuendo. Indeed, maintenance manager Bany Brenner
had heard rumors that plaintiff had received the SMO position "because of an EEO complaint"
after the phone call informing him of the hiring. Deposition of Bany Brenner (attached to
Declaration ofTonyia Brady (#39) as Exhibit 15) at pp. 32-33. SMO Jesse Soto states that it was
common knowledge at the Eugene plant that plaintiff had filed prior EEO complaints and that
when she received the SMO position, tumors went around that she received the SMO position
because of the complaints. Declaration of Jesse Soto (#38) at~ 5. In addition, Soto states that it
was after that call informing Vore and Brenner that plaintiff had been hired that Vore stated "we
will change her shift and then see how she likes that." Id. at~ 4. Plaintiff has presented evidence
that Vore heard about the EEO complaints (even if it was made by someone who only thought it
to be a rumor) at the vety meeting in which he made the decision to change the shift.
9

With respect to what constitutes an adverse employment decision for a retaliation claim,
a plaintiff must show that a reasonable employee would have found the challenged action
materially adverse, i.e., it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination. Burlington Northern and Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006). Moreover, The scope of the antiretaliation provision of Title VII extends
beyond workplace-related or employment-related retaliatoty acts and hatm. Id. at 67.
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evidence that timing of the initial shift change decision by Vore may have occmTed at the vety time
the "rumor" plaintiff got the job as a result of the EEO complaints was discussed. In addition, the
second shift change occun·ed in the midst of another EEO investigation and ensnared another SMO
who supported the EEO complaint. The timing of the decisions strongly suggests a correlation
between the EEO complaints and the adverse employment decision. The evidence further suggests
that defendant's proffered explanation is a pretext. The motion for summary judgment on the
retaliation claims is denied.

CONCLUSION
For the reasons stated above, defendant's motion for summmy judgment and to dismiss (#25)
is granted to the extent that plaintiffs state law discrimination claims are dismissed and otherwise
denied.
DATED this

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4

day of September, 2013.