Danielson v. Brennan et al

Filing 44

ORDER granting Defendants' 29 Motion for Summary Judgment. All of Plaintiff's remaining claims are dismissed with Prejudice. Signed by U.S. District Judge John C Coughenour. (TH)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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VERONICA DANIELSON,

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Plaintiff,
v.

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CASE NO. C16-0476-JCC
ORDER GRANTING SUMMARY
JUDGMENT

MEGAN J. BRENNAN, et al.,

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Defendant.

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This matter comes before the Court on Defendant’s motion for summary judgment (Dkt.

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No. 29). Having thoroughly considered the parties’ briefing and the relevant record, the Court

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hereby GRANTS the motion for the reasons explained herein.

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I.

BACKGROUND

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Plaintiff Veronica Danielson, a U.S. Postal Service employee, brings the following

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claims against the U.S. Postal Service and its Postmaster General, Megan Brennan: an action for

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the non-payment of minimum wages pursuant to 29 U.S.C. § 206(a)(1)(C), a retaliatory

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workplace action pursuant to 29 U.S.C. § 215(a)(3), and a hostile work environment action

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pursuant to 29 U.S.C. § 215(a)(2). 1 (Dkt. No. 6 at 10–11.) Plaintiff asserts that her station

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Plaintiff also asserted causes of action for the nonpayment of overtime wages pursuant
to 29 U.S.C. § 207(a)(1) and a violation of the Americans with Disabilities Act, 42 U.S.C.
§ 12101, et seq. The parties later stipulated to dismissal of these claims. (Dkt. Nos. 21, 23.)
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manager, Thao Tran, instructed Plaintiff’s direct supervisor to delete Plaintiff’s time record entry

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for .67 hours of overtime Plaintiff worked without prior management approval. (Dkt. Nos. 6 at 3,

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41 at 2.) Plaintiff further asserts that after reporting the incident to the Postal Service’s Office of

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the Inspector General, Tran and Plaintiff’s supervisors engaged in a variety of retaliatory actions,

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thereby creating a hostile work environment. (Dkt. No. 6 at 4, 10.)

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Defendants move for summary judgment. (Dkt. No. 29.) They assert Plaintiff’s wage and

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hostile work environment claims fail as a matter of law. (Id. at 5, 21.) They further assert that

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Plaintiff fails to establish a prima facie case of retaliation. (Id. at 7.) The Court agrees.

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II.

DISCUSSION

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A.

Legal Standard: Summary Judgment

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The Court shall grant summary judgment if the moving party shows that there is no

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genuine dispute as to any material fact and that the moving party is entitled to judgment as a

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matter of law. Fed. R. Civ. P. 56(a). The Court must view the facts and justifiable inferences to

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be drawn therefrom in the light most favorable to the opposing party. Anderson v. Liberty Lobby,

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477 U.S. 242, 255 (1986). Once a motion for summary judgment is properly made and

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supported, the opposing party must present specific facts showing that there is a genuine issue

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for trial. Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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587 (1986). Material facts are those that may affect the outcome of the case, and a dispute about

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a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict

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for the non-moving party. Anderson, 477 U.S. at 248–49. Ultimately, summary judgment is

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appropriate against a party who “fails to make a showing sufficient to establish the existence of

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an element essential to that party’s case, and on which that party will bear the burden of proof at

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trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

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As a threshold matter, Plaintiff asserts that Defendants are subject to a “clear and

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convincing” burden at summary judgment. (See Dkt. Nos. 41 at 2, 8–9) (citing Anderson, 477

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U.S. at 255). This is a misstatement of Anderson. The burden of proof for evidence presented at
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summary judgment is the same as for evidence presented at trial. Anderson, 477 U.S. at 252–53.

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For most civil cases, this is a “preponderance of the evidence.” Id. at 252. Only in instances

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where a different burden is mandated at trial, such as the “clear and convincing” standard

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applicable to the actual malice determination in the libel suit in Anderson, would that different

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burden apply at summary judgment. Id. at 254; see Avila v. L.A. Police Dep’t, 758 F.3d 1096,

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1102 (9th Cir. 2014) (a preponderance of the evidence burden applies to a retaliation claim).

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B.

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Plaintiff brings a claim for failure to pay the required hourly minimum wage. (Dkt. No. 6

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Minimum Wage Claim

at 10); 29 U.S.C. § 206(a)(1). At issue is the .67 hours of overtime Plaintiff worked for which

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she alleges Tran instructed Plaintiff’s supervisor to delete Plaintiff’s time entry. (Dkt. No. 41 at

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2.) But Plaintiff admits that she was eventually paid for this time. (See Dkt. No. 5 at 2)

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(grievance settlement agreement). Therefore, she has no claim under 29 U.S.C. § 206(a)(1). The

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Court GRANTS Defendant’s motion for summary judgment on this issue.

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C.

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The Fair Labor Standards Act (“FLSA”) prohibits an employer from discharging or in

FLSA Retaliation Claim

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any other way retaliating against an employee for filing a complaint or instituting a proceeding

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against the employer. 29 U.S.C. § 215(a)(3). FLSA’s anti-retaliation provision is intended “to

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provide an incentive for employees to report wage and hour violations by their employers” and

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“to ensure that employees are not compelled to risk their jobs in order to assert their wage and

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hour rights under the Act.” Lambert v. Ackerley, 180 F.3d 997, 1003 (9th Cir. 1999) (quotation

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omitted). As a remedial statute, FLSA is to be construed broadly. Id. at 1003.

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To prevail on an FLSA retaliation claim, a plaintiff must make a prima facie showing that

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(a) the defendant was aware of the plaintiff's participation in a protected activity (b) that an

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adverse employment action was taken against the plaintiff, and (c) that the protected activity was

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a substantial motivating factor in the adverse employment action as to that plaintiff. Lambert,

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180 F.3d at 1007. A plaintiff must establish a prima facie case “by a preponderance of the
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evidence.” Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If a plaintiff meets

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this standard, the burden shifts to the employer to offer a legitimate, non-discriminatory reason

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for the adverse action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 2 The

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burden then shifts back to the plaintiff to demonstrate that the employer’s proffered reason is

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pretextual. Id.

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Prima Facie Case

It is undisputed that a wage-based internal grievance is an FLSA-protected activity. (Dkt.

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No. 41 at 12); see Lambert, 180 F.3d at 1004 (FLSA-protected activities include internal

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complaints). But the parties dispute (a) when Tran became aware that Plaintiff had filed the

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grievance, (b) whether the actions taken against Plaintiff were, in fact, adverse employment

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actions, and (c) whether Plaintiff presents sufficient evidence to survive summary judgment as to

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whether the grievance was a substantial motivating factor in adverse employment actions taken

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against Plaintiff. (Dkt Nos. 29, 41, 42.) To be clear, the mere existence of a disputed fact is not

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sufficient to survive summary judgment. Anderson, 477 U.S. at 248–49. Plaintiff must present

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sufficient evidence to show a genuine dispute, i.e. whether a reasonable jury could return a

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verdict for her. Id.

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Regarding her wage claim, Plaintiff requested paperwork to file a report with the Postal

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Service Equal Opportunity Office on November 19, 2015 and notified the Office of Inspector

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General through the OIG online hotline “[d]uring the week of November 23, 2015.” (Dkt. No. 6

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at 4.) She asked Tran for copies of her time slips for the previous seven months “[d]uring the

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week of November 30, 2015,” which Tran refused to do, instructing Plaintiff to make the request

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While the Ninth Circuit has not expressly held the McDonnell Douglas burden shifting
framework applicable to FLSA claims in a published case, the parties appear to agree that the use
of this framework is appropriate. (See Dkt. Nos. 29 at 7, 16, 17; 41 at 9–10.) Furthermore, the
Ninth Circuit has, in an unpublished case, affirmed district courts’ usage of the McDonnell
Douglas framework in FLSA cases. See Spata v. Smith's Food & Drug Ctrs., Inc., 253 Fed.
App’x. 648, 649 (9th Cir. 2007) (finding that a district court did not commit reversible error in
applying the McDonnell Douglas burden-shifting scheme to an FLSA retaliation claim).
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to her union. (Id.) Plaintiff asserts, in her declaration to the Court, that Tran had given her

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historical time entries in the past and that she believed Tran “avoided giving me this information

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because she found out that I reported her to OIG and that I was filing an EEO against her.” (Dkt.

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No. 2 at 2.) Plaintiff further asserts in her declaration that on December 3, 2015 she asked Tran

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“why she deleted my [overtime record for November 10].” Defendants do not meaningfully

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dispute these facts, other than to take issue with the assertion that Plaintiff’s actions prior to

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December 3, 2015 were sufficient to apprise Tran that Plaintiff had filed a wage grievance. (Dkt.

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No. 42 at 4.) Plaintiff makes a prima facie showing that Tran was aware she had filed a

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grievance. Exactly when is not material to this dispute.

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Plaintiff must also establish the existence of adverse employment actions. Lambert, 180

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F.3d at 1007. She describes a number of incidents that she asserts represent adverse employment

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actions. (Dkt. Nos. 6 at 4–10; 41 at 13–16.) Defendants assert all but one are not, in fact, adverse

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employment actions. (Dkt. No. 29 at 7–12.) An employment action is adverse if it would

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dissuade a reasonable worker from engaging in FLSA-protected activity. Ray v. Henderson, 217

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F.3d 1234, 1245 (9th Cir. 2000); see also Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S.

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53, 68 (2006) (internal citation and quotation omitted) (analyzing adverse employment actions in

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the Title VII context); McBurnie v. City of Prescott, 511 Fed. App’x. 624, 625 (9th Cir. 2013)

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(applying the Burlington standard to an FLSA retaliation claim). To note, “trivial harms” are not

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adverse employment actions. Burlington, 548 U.S. at 68.

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Plaintiff contends that once she filed her grievance, Tran’s behavior changed markedly.

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She became rude and unfriendly. (Dkt. Nos. 6 at 4–10, 41 at 4–8.) Plaintiff further references the

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following incidents occurring between November 28, 2015 and March 17, 2016: On one

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occasion, Tran told other employees in Plaintiff’s vicinity whether their overtime requests were

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approved but “completely ignored” Plaintiff (Dkt. No. 6 at 4); on one occasion, Supervisor

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Natalie Padelford refused to approve sufficient overtime for Plaintiff to complete her mail route

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(Id. at 5); Plaintiff then voluntarily moved to a non-overtime schedule to reduce workplace
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stress, and on five occasions Padelford and Tran refused to approve sufficient auxiliary

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assistance 3 to complete Plaintiff’s daily duties (Id. at 7); Supervisor Phuc Nguyen and Tran

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supervised Plaintiff more closely than other employees, this included four occasions where they

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engaged in prolonged staring with arms crossed and/or took notes (Id. at 4, 8–9); finally, Tran

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refused Plaintiff’s request for time to meet with a union steward, suggesting a meeting the

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following day while knowing that Plaintiff was off that day (Id. at 6). “[P]ersonality conflicts,” a

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“lack of good manners,” and “snubbing by supervisors” do not constitute an adverse employment

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action. Burlington, 548 U.S. at 68–69. Nor is being “less civil, star[ing] at [an employee] in a

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hostile fashion, and bec[o]m[ing] more critical of [an employee’s] performance.” Kortan v. Cal.

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Youth Auth., 217 F.3d 1104, 1112 (9th Cir. 2000). None of the incidents described above

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individually support a prima facie case for an FLSA retaliation claim.

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Plaintiff points out that even if many of the actions appear trivial in isolation, they

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collectively represent an adverse employment action. (Dkt. No. 41 at 11–12.) In support, she

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cites Thomas v. County of Riverside, 763 F.3d 1167, 1169 (9th Cir. 2014) (remanding decision

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back to district court to determine whether individual incidents were “part of a more general

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campaign and hence might in context have greater materiality than when viewed in isolation.”).

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But Thomas is inapposite. In Thomas, the incidents at issue were as follows: the employee was

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removed from a teaching assignment worth $9,000 in annual compensation, forced to commute

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between work sites off the clock, had previously-approved vacation rescinded, and was removed

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from a workplace committee. 763 F.3d at 1169. These are more significant than the incidents

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described by Plaintiff. Furthermore, the incidents in Thomas were in the context of additional

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incidents: three involuntary transfers and three internal investigations against that same

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employee—“archetypal adverse employment actions.” Id. Therefore, unlike in Thomas, the

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Court does not find support for a collective adverse action in this case.

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Auxiliary assistance means that another postal carrier delivers some of the employee’s
mail for the day. (Dkt. No. 32 at 4.)
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Plaintiff also describes a letter of warning she received from Nguyen for failing to

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affirmatively notify her supervisor that she brought undelivered mail back to the station. (Dkt.

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No. 6 at 6.) Defendants do not dispute that this is an adverse employment action. (Dkt. Nos. 29 at

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8, 13; 42 at 8–9.) To support a prima facie case based on this action, Plaintiff must also show that

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the grievance was a substantial motivating factor in issuing the letter. Lambert, 180 F.3d at 1007.

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Plaintiff asserts that the letter was a “frivolous act of discipline, committed by manager Tran in

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order to retaliate against Plaintiff.” (Dkt. No. 6 at 7.) To survive summary judgment, Plaintiff

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must support this assertion with sufficient evidence for a reasonable jury to return a verdict in her

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favor. Anderson, 477 U.S. at 248–49. Plaintiff provides no material evidence and her conclusory

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statement, absent additional evidence, does not meet this standard. T.W. Elec. Serv., Inc. v. Pac.

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Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987). Whereas Defendants present

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significant evidence that the disciplinary letter was unrelated to her grievance against Tran.

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In her deposition, Plaintiff concedes that she “is not sure she said something to” her

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supervisor about the undelivered mail because it would have been obvious to him had he looked

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in her mail cart. (Dkt. No. 30-1 at 94.) In addition, she concedes that another employee was

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similarly disciplined for bringing mail back without notifying a supervisor that same day. (Id. at

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96.) She also concedes that Nguyen did not have any reason to unjustifiably discipline her. (Id. at

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105.) Further, in a declaration presented by Defendants, Nguyen asserts that Tran did not instruct

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him to issue the disciplinary letter. (Dkt. No. 31 at 2.) Nguyen issued the letter after a postal

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supervisor informed him that Plaintiff left undelivered mail in her cart without notifying the

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supervisor, a violation of Postal Service policy. (Id.) Nguyen also indicates that he was a new

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supervisor at the facility, was not working at the facility when the overtime wage withholding

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incident underlying Plaintiff’s grievance occurred, and was not aware that Plaintiff had filed a

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grievance against when issuing the letter. (Id. at 1–4.) Based on this evidence, the Court finds

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that Plaintiff fails to make a prima facie showing that the grievance was a substantial motivating

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factor in issuing the warning letter to Plaintiff.
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For the reasons described above, none of the actions asserted by Plaintiff establish a

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prima facie case of retaliation under the FLSA. Therefore, the Court need not consider whether

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Defendants provide a legitimate, non-discriminatory reason for any adverse actions. The Court

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GRANTS Defendant’s motion for summary judgment on this claim.

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D.

Hostile Work Environment Claim

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Plaintiff asserts a claim under FLSA for the creation of a hostile work environment.

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While a hostile work environment is actionable under various anti-discrimination statutes, the

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FLSA is not one of them. See 29 U.S.C. § 201 et seq.; Cook-Benjamin v. MHM Correctional

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Services, Inc., 571 Fed. App’x. 944, 949 (11th Cir. 2014) (upholding sanctions against

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employee’s attorney for brining such a claim). Therefore, the Court GRANTS Defendant’s

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motion for summary judgment on this claim.

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III.

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CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment (Dkt. No. 29) is

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GRANTED. All of Plaintiff’s remaining claims are dismissed with Prejudice. The Clerk is

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DIRECTED to close this case.

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DATED this 26th day of October 2017.

A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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