Saris, C.J.
Diping Anderson was formerly employed as a Postal Police Officer ("PPO") by the U.S. Postal Service. She claims that the Postal Service unlawfully terminated her on the basis of her Chinese descent and in retaliation for her filing multiple complaints of race discrimination with the Equal Employment Opportunity Commission ("EEOC").
The Postal Service moves for summary judgment on the basis that it had a nondiscriminatory reason for terminating Anderson: a series of workplace misconduct incidents. Anderson responds that her workplace misconduct was a pretextual reason for her termination, as evidenced by the fact that she received harsher punishment than similarly situated white PPOs for the Same misconduct. Because a factfinder could reasonably conclude that race and/or retaliatory Motive was a determining factor in the Postal Service's termination of Anderson, the Postal Service's motion for summary judgment (Docket No. 44) is
The facts below are taken from the record, and are undisputed except where stated.
Diping Anderson immigrated to the United States from China in 1990. She began working as a PPO on July 15, 2000. She was the only PPO of Asian descent during her thirteen years of employment at the Boston General Mail Facility.
On May 12, 2011, Anderson filed her first pre-complaint statement with the EEOC, alleging race discrimination by her supervisors, Captain Harrington and Sergeant Ford. She alleged that on May 1, 2011, Harrington and Ford impeded her return to work from a workplace injury because of her race.
On May 23, 2011, the EEOC notified Harrington and Ford of Anderson's May 12, 2011 EEOC filing. On May 25, 2011, Anderson came into work to find that her normal chair had been replaced by a broken chair. When she objected, Ford told Anderson to go home if she didn't like it. Anderson went home. On May 26, 2011, Ford rescinded his approval of her request for leave on May 21, 2011 and changed her status on that day to "AWOL."
On June 15, 2011, the EEOC convened a redress conference between Anderson and her supervisors.
On June 24, 2011, Anderson was issued a seven-day suspension, signed by Ford, for leaving her assigned post without proper authorization. The notice of suspension stated that Anderson had left the facility on May 21, 25, and 26, 2011 without prior approval.
On March 25, 2012, Anderson filed her second formal complaint with the EEOC, alleging that she was being harassed by her supervisors in retaliation for her prior EEOC filing.
On August 29, 2012, Anderson was issued a Letter of Warning, signed by Sergeant Joseph Motrucinski, for failure to properly protect and secure her service weapon upon the completion of her duties. The letter stated that, on August 1, 2012, Anderson improperly placed her loaded service weapon in her personal locker in the women's changing room at the end of her shift rather than securing it in the designated weapon locker in the weapon room.
On September 11, 2012, Anderson filed a pre-complaint statement with the EEOC alleging that the August 29, 2012 Letter of Warning was retaliation for her prior EEOC complaints.
On September 26, 2012, Anderson was issued a Letter of Warning in Lieu of Fourteen-Day Suspension, signed by Motrucinski. The letter stated three bases for the discipline: failure to follow instructions, failure to secure accountable property, and an integrity violation. According to the letter, Anderson misplaced her keys, including her weapon room key and weapon locker key, on August 17, 2012. She was directed multiple times to complete an incident report, but she refused to do so. The letter also stated that on at least four occasions in July and August 2012, Anderson stored her weapon locker key inside the weapon locker with her service weapon. According to the letter, this was improper behavior because the weapon locker key could be extracted from the weapon locker by anyone through a small hole in the weapon locker door.
On October 19, 2012, Anderson's name was removed from the acting sergeant list.
On December 28, 2012, Anderson filed her third formal complaint with the EEOC, alleging that she was being improperly disciplined in retaliation for her prior EEOC complaints.
On May 9, 2013, an EEOC investigator contacted Ford and Motrucinski to request affidavits in response to Anderson's third formal complaint.
On September 9, 2013, Anderson was issued a Notice of Removal, signed by Motrucinski. The Notice of Removal terminated Anderson from her position for failure to perform her duties. The Notice stated that on June 6, 2013, Anderson was dispatched to the Brockton Processing and Distribution Center, where a fire had left a hole in the facility building. According to the notice, Anderson was directed to stand outside her cruiser to prevent unauthorized access to the facility. However, the Notice stated, Anderson was instead observed, sitting in the back seat of her cruiser and appeared to be sleeping. Anderson contests the basis of the termination, claiming that she was not sleeping on the job.
On August 15, 2014, Anderson filed a two-count complaint against the Postal Service. The first count alleged race and national original discrimination, in violation of 42 U.S.C. § 2000e-2(a). The second count alleged unlawful retaliation, in violation of 42 U.S.C. § 2000e-3(a). The essential allegation in the complaint was that Anderson was subjected to more severe disciplinary punishment than other similarly situated PPOs because of her race and in retaliation for her EEOC activity.
On June 3, 2016, the Postal Service filed a motion for summary judgment on both counts. Anderson opposed the motion. This Court held a hearing on August 15, 2016 and took the motion under advisement.
Summary judgment is appropriate when 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). To succeed on a motion for summary judgment, the moving party must demonstrate that there is an "absence of evidence to support the nonmoving party's case."
"A genuine issue exists where a reasonable jury could resolve the point in favor of the nonmoving party."
In its review of the evidence, this Court must "examin[e] the facts in the light most favorable to the nonmoving party" and draw all reasonable inferences in its favor, to "determine if there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party."
In the absence of direct evidence of discrimination, Title VII claims are analyzed under a three-step burden-shifting framework.
At the summary judgment stage, the
The Postal Service concedes for purposes of its summary judgment motion that Anderson has met her burden under step one to establish a prima facie case of discrimination based on race and national origin.
The Postal Service argues at step two, however, that the Postal Service's decision to terminate Anderson was legitimate and non-discriminatory in light of Anderson's disciplinary record. The Postal Service points to Anderson's August 29, 2012 Letter of Warning; her September 26, 2012 Letter of Warning in Lieu of Fourteen-Day Suspension; and her June 6, 2013 misconduct at the Brockton Processing and Distribution Center.
The inquiry then shifts to step three, where Anderson must show that a factfinder could reasonably conclude that the Postal Service's reasons for disciplinary action were pretextual. There are a number of different ways for Anderson to meet this burden.
Anderson produces evidence of a number of comparator cases in which she claims that white employees were disciplined less severely for equal or greater misconduct. According to that evidence, formal disciplinary proceedings are rare for PPOs. Matthew Grealish, who worked as a PPO at the Boston General Mail Facility for forty-one years before retiring, stated that PPOs "have been rarely disciplined and even more rarely fired even when they have clearly and repeatedly violated rules and regulations of the [Postal Service].... Supervisors generally rely on informal talks with officers who have broken rules, rather than write them up for disciplinary proceedings." Docket No. 48-11
The evidence also contains specific examples of lesser discipline for other PPOs who have been responsible for similar or worse misconduct than Anderson. Misplacing of weapon room keys is, according to evidence in the record, commonplace and generally handled without punishment, or even warning or criticism. As for leaving firearms in changing room lockers instead of in the weapon room, there is evidence in the record that other PPOs and a sergeant have done the same without receiving formal discipline.
In fact, more serious firearm incidents have been dealt with lightly. Motrucinski, now a sergeant but at the time a PPO, lost his service weapon when it fell out of a car onto the streets of South Boston. Motrucinski, who is white, only received a Letter of Warning. Postal Inspector Michael McCarron left his loaded firearm in a public bathroom outside the secure police wing in the Boston General Mail Facility, where it was found by a janitor. McCarron, who is white, also only received a Letter of Warning.
Anderson also produces evidence that a number of PPOs were notorious for falling asleep on the job and that other PPOs would joke about them. The record contains no evidence that those PPOs were ever disciplined.
The Postal Service responds that those other employees were not similarly situated because the discipline was imposed by other supervisors. The Postal Service is correct that employees who are disciplined by different decision-makers may not be similarly situated.
But this Court declines to adopt the Postal Service's position that another employee disciplined by a different supervisor cannot, as a categorical rule, be a comparator. Some courts appear to apply such a rule.
Given the facts of this case, this Court concludes that comparators need not necessarily have been disciplined by the same supervisor as Anderson for a reasonable factfinder to conclude that they were similarly situated. According to Charles Zekan, a Postal Service employee involved in nationwide oversight over PPO discipline cases, the Postal Service emphasizes the "general principle ... that all employees are treated equitably, equally." A factfinder could conclude that Anderson and the comparator employees were subject to the same standards even if they were disciplined by different supervisors. Moreover, there is record evidence that supervisors knew about the discipline practices of other supervisors: as Grealish stated, "The postal police unit in Boston is rather small and we work in close quarters at the [General Mail Facility] offices; consequently, the officers generally know about violations of rules and disciplinary proceedings involving other officers."
Under such facts, a reasonable factfinder could find that the other Postal Service employees were similarly situated to Anderson in all relevant respects even if those other employees were disciplined by different supervisors. That comparator evidence could reasonably support a conclusion that Anderson was disciplined differently due to her race. The Postal Service's motion for summary judgment on Count I is
The Postal Service argues that Anderson cannot even make out a prima facie case of unlawful retaliation. "To make a prima facie showing of retaliation, the plaintiff must show that she engaged in protected conduct, that she suffered an adverse employment action, and that a causal nexus exists between the protected activity and the adverse action."
The Postal Service understates the temporal connections in the record. Before her first EEOC complaint, Anderson worked as a PPO for ten years without any disciplinary record. Subsequent to that, there are a number of points in the chronology in which discipline is imposed soon after EEOC activity, making it reasonable for a factfinder to find a nexus between protected activity and an adverse employment action. For example, Anderson's permission for leave was revoked and she was charged with AWOL status on May 26, 2011, which was three days after Harrington and Ford were notified of Anderson's EEOC pre-complaint filing. Anderson's seven-day suspension was imposed on June 24, 2011, which was nine days after the EEOC scheduled a redress conference between Anderson and her supervisors. Anderson's Letter of Warning in Lieu of Fourteen-Day Suspension was issued on September 26, 2012, which was fifteen days after she filed a pre-complaint statement with the EEOC. Anderson's termination was based on events on June 6, 2013, which was about a month after the EEOC requested affidavits from Ford and Motrucinksi in response to Anderson's third EEOC complaint.
While the Postal Service correctly observes that "the inference of a causal connection [between protected activity and
Moreover, Anderson does not rely on temporal proximity alone.
Anderson has established a prima facie case of retaliation. For the same reasons stated above with respect to Count I, the Postal Service has put forth a nondiscriminatory explanation for the discipline and Anderson has responded with sufficient evidence to allow a factfinder to conclude that the nondiscriminatory explanation is pretextual. The Postal Service's motion for summary judgment on Count II is
This Court