Burton v. DeJoy

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Derek L Burton, No. CV-22-00755-PHX-DLR 10 Plaintiff, ORDER 11 v. 12 Louis DeJoy, 13 Defendant. 14 15 16 Before the Court is Defendant Louis DeJoy, Postmaster General for the United 17 States Postal Service’s (“USPS”) motion for summary judgment. (Doc. 63.) The motion is 18 fully briefed (Docs. 75, 76, 79) and, for the reasons set forth below, is granted in part and 19 denied in part. 20 I. Background1 21 Plaintiff Derek L. Burton is a black male who has been a supervisor for USPS for 22 nearly 20 years. He was a supervisor at the USPS Sunnyslope station in Phoenix, Arizona 23 from 2018 to 2021. In 2020 he was assigned to the Sunnyslope Post Office as a promoted 24 EAS 17 supervisor in a morning position, responsible for the first line supervision of City 25 Letter Carriers who delivered mail to the assigned station zip codes. The afternoon 26 supervisor was Jeffery White, who was the station’s designated Stamp Custodian.2 In the 27 1 These facts are presented in the light most favorable to Plaintiff, as they must be at the summary judgment stage. 28 2 The station Stamp Custodian’s responsibilities included maintaining the station’s postal stamp inventory. 1 latter part of 2020, White was diagnosed with cancer and went on leave status. He remained 2 on leave until late April 2021. 3 The Station Manager for the Sunnyslope Post Office was Kim Collins. Collins’ 4 responsibilities included designating the station Stamp Custodian for that post office 5 facility. When White left on leave, instead of designating a replacement Stamp Custodian, 6 in early January Collins told Plaintiff to act as the custodian but to do so using White’s 7 identification and password. Immediately thereafter, Collins, who had been in and out of 8 work for months while herself undergoing cancer therapy, was transferred to a station in 9 New Jersey. Collins was replaced as Station Manager by Stephanie Cook. 10 In January 2021, Plaintiff began using White’s login and password for stamp 11 transactions. The USPS computer reflects many stamp transactions conducted under 12 White’s login and password credentials from January through March 2021. White was on 13 extended medical leave that entire time. Plaintiff contends that instead of making an official 14 designation of Stamp Custodian for the station, when Cook became Station Manager, she 15 told him to continue as the Stamp Custodian using White’s credentials.3 16 It is a violation of USPS policy to use another supervisor’s password to record stamp 17 transactions. By using White’s credentials, those transactions were recorded in White’s 18 name, and Plaintiff was not shown to have any accountability for the transaction. Plaintiff 19 was aware that by using White’s credentials he would not be recorded as having been 20 involved in the transactions. 21 On March 24, 2021, after a count of the Sunnyslope Station stamp inventory came 22 up short by nearly $1,500, it was discovered that Plaintiff was using White’s credentials. 23 On March 24, 2021, Plaintiff was put on Emergency Placement (paid administrative leave) 24 and sent home. On March 27, 2021, Plaintiff’s detail assignment to the Scottsdale Airpark 25 Station did not occur because Plaintiff was not available to report due to his Emergency 26 Placement status. On April 5, 2021, the Emergency Placement was reissued. On April 9, 27 2021, Manager Ibuado submitted a Proposed Personnel Action to the USPS Labor 28 3 Plaintiff did not mention Cook’s instructions during the administrative process and Cook denies making such a statement. 1 Department seeking removal of Plaintiff. On April 23, 2021, Plaintiff received notice that 2 he owed $1,499.96 based on his accountability for the unit reserve shortage from the audit 3 of March 24, 2021. On May 6, 2021, Plaintiff filed an EEO Complaint. On May 14, 2021, 4 USPS notified Plaintiff that the missing $1,500 in Postal assets would be involuntarily 5 taken from his salary. Ultimately, the money was not withdrawn because the missing 6 money was discovered and accounted for. However, Plaintiff lost one day of pay. 7 The Labor Department rejected Manager Ibuado’s Proposed Personnel Action and 8 instructed that it be changed from removal to a 14-day suspension. A modified Proposed 9 Personnel Action was signed by the concurring official on May 17, 2021. On May 20, 10 2021, the actual Notice of Proposed Personnel Action was sent to Plaintiff. On July 16, 11 2021, Postmaster Tina Sweeney issued a Letter of Warning in lieu of a 14-suspension as a 12 reprimand. On September 25, 2021, Plaintiff’s lateral transfer request to the Scottsdale 13 Airpark Station was approved. 14 II. Legal Standard 15 Summary judgment is appropriate when there is no genuine dispute as to any 16 material fact and, viewing those facts in a light most favorable to the nonmoving party, the 17 movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is material 18 if it might affect the outcome of the case, and a dispute is genuine if a reasonable jury could 19 find for the nonmoving party based on the competing evidence. Anderson v. Liberty Lobby, 20 Inc., 477 U.S. 242, 248 (1986); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 21 (9th Cir. 2002). The party seeking summary judgment bears the initial burden of informing 22 the Court of the basis for its motion and identifying those portions of the pleadings, 23 depositions, answers to interrogatories, and admissions on file, together with the affidavits, 24 if any, which it believes demonstrate the absence of any genuine issue of material fact. 25 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party has met its 26 initial burden with a properly supported motion, the party opposing the motion “may not 27 rest upon the mere allegations or denials of his pleading, but . . . must set forth specific 28 facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248. Where the 1 record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving 2 party, there is no genuine issue of material fact for trial. Matsushita Elec. Indus. Co. v. 3 Zenith Radio Corp., 475 U.S. 574, 586 (1986). 4 III. Analysis 5 A. Discrimination 6 The Court evaluates racial discrimination in employment claims using the burden- 7 shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 8 (1973). In a racial discrimination case, a plaintiff first must establish a prima facie case of 9 discrimination by showing that he: (1) is a member of a protected class, (2) is qualified for 10 his job, (3) suffered an adverse employment action, and (4) was treated less favorably than 11 other similarly situated employees outside his protected class. If a plaintiff makes this 12 threshold showing, “[t]he burden of production, but not persuasion, then shifts to the 13 employer to articulate some legitimate, nondiscriminatory reason for the challenged 14 action.” Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1123-24 (9th Cir. 15 2000). If the employer does so, the burden shifts back to the plaintiff to demonstrate that 16 the employer’s proffered reason is a pretext for discrimination, “either directly by 17 persuading the court that a discriminatory reason more likely motivated the employer or 18 indirectly by showing that the employer’s proffered explanation is unworthy of credence.” 19 Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). A plaintiff’s evidence 20 on this point “must be both specific and substantial to overcome the legitimate reasons put 21 forth by,” the employer. Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 659 22 (9th Cir. 2002). 23 Plaintiff has made prima facie showing that he was a member of a protected class, 24 qualified for his job, suffered an adverse employment action, and was treated less favorably 25 than another similarly situated employee outside the protected class. Collins,4 who is not 26 4 Based on the lack of facts alleged or arguments made in Plaintiff’s response brief regarding White and Cook, the Court understands that Plaintiff is claiming only that Collins 27 is an appropriate comparator. (See Doc. 24 at 5 (warning that “the responding party in its response must carefully address all material facts raised in the motion,” and that “[a]ny fact 28 that is ignored may be deemed uncontested”).) 1 black, directed Plaintiff’s actions, but was not subjected to investigations, scrutiny, audits, 2 or false allegations. 3 Defendant has articulated a legitimate, nondiscriminatory reason for the challenged 4 action. It is undisputed that using White’s password credentials to accept stock and money 5 orders, transfer stock, and conduct audits was a violation of the written policies of USPS. 6 However, assuming facts in the light most favorable to Plaintiff, he has met his burden of 7 demonstrating that Defendant’s proffered reasons are unworthy of credence. Defendant 8 argues that Collins is not a valid comparator because, as a manager, she is not similarly 9 situated to Plaintiff whose position was that of a supervisor and because she did not misuse 10 anyone’s credentials. However, Collins instructed Plaintiff to use White’s credentials. 11 Whether she is identical to Plaintiff in every conceivable respect is not the issue. She need 12 only be comparable in all material respects. Here, she allegedly was involved in the 13 misconduct for which Plaintiff was investigated and sanctioned. Her involvement in the 14 misdeeds was not negligible. Yet she was not subject to any of the adverse employment 15 actions that were imposed on Plaintiff. 16 Defendant further argues that even if Collins had some responsibility or participated 17 in Plaintiff’s misconduct, Phoenix Management did not have jurisdiction to discipline her 18 because she had transferred to New Jersey by the time the misuse over which Plaintiff was 19 disciplined occurred. However, Plaintiff’s suit is against DeJoy, the Postmaster General, 20 not against Phoenix Management or Sunnyslope station. As Postmaster General, DeJoy is 21 not without the ability to require investigation or adverse employment action. Defendants 22 have offered no support for the proposition that relocating immunizes an employee for 23 violations of USPS policy. For these reasons, the Court finds triable issues of fact exist 24 concerning Plaintiff’s claim of racial workplace discrimination. Summary judgment on this 25 claim is denied. 26 B. Retaliation 27 To make a prima facie case of retaliation, a plaintiff must present evidence showing: 28 “(1) involvement in a protected activity, (2) an adverse employment action and (3) a causal 1 link between the two.” Brown v. City of Tucson, 336 F.3d 1181, 1187 (9th Cir. 2 2003) (citation and quotation marks omitted). A plaintiff must offer “evidence adequate to 3 create an inference that an employment decision was based on an illegal discriminatory 4 criterion.” O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996) (citation, 5 internal punctuation, and emphasis omitted). Retaliation claims require a “causation in 6 fact,” meaning they are governed by a “but-for” causation standard. University of Tex. Sw. 7 Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013). 8 The chronology of events resolves the retaliation claim. March 24, 2021, Plaintiff 9 was put on Emergency Placement. On March 27, 2021, Plaintiff’s detail assignment to the 10 Scottsdale Airpark Station did not occur because of his Emergency Placement status. On 11 April 5, 2021, the Emergency Placement was reissued. On April 9, 2021, Manager Ibuado 12 submitted a Proposed Personnel Action seeking removal of Plaintiff. On April 23, 2021, 13 Plaintiff received notice that he owed $1,499.96. On May 6, 2021, Plaintiff filed his EEO 14 Complaint. The Labor Department rejected Manager Ibuado’s Proposed Personnel Action 15 and instructed that it be changed from removal to a 14-day suspension. A modified 16 Proposed Personnel Action was signed by the concurring official on May 17, 2021. On 17 May 20, 2021, the Notice of Proposed Personnel Action was sent to Plaintiff. On July 16, 18 2021, Postmaster Sweeney issued a Letter of Warning instead. 19 Plaintiff has not met his burden of establishing the causal link between the protected 20 activity and the adverse employment actions. The adverse employment actions were taken, 21 and the Proposed Personnel Action (a recommendation for removal) was made before 22 Plaintiff filed his EEOC complaint. Though the ultimate decision regarding the Proposed 23 Personnel Action (a warning letter) was not made until after the EEO Complaint had been 24 filed, a Personnel Action was already in the works when the EEO Complaint was filed. 25 And, ultimately, the Personnel Action of a reprimand was a lesser punishment than was 26 first recommended, undermining Plaintiff’s claim that the Personnel Action was retaliation 27 for his EEO Complaint. Summary judgment is granted on the retaliation claim. 28 1 IT IS ORDERED that Defendant’s motion for summary judgment (Doc. 63) is 2|| GRANTED IN PART and DENIED IN PART as explained herein. 3 IT IS FURTHER ORDERED that the parties shall appear for a telephonic trial 4|| scheduling conference on October 22, 2024, at 10:00 a.m. Call-in instructions will be 5 || provided via separate email. 6 Dated this 20th day of September, 2024. 7 8 : Los Ue 10 Wy 11 Sent United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-