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Tam v. Potter

July 21, 2008

JEFFREY W. TAM, PLAINTIFF,
v.
JOHN E. POTTER, DEFENDANT.



The opinion of the court was delivered by: Susan Illston United States District Judge

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Now before the Court is defendant's motion for summary judgment. After the hearing on the motion, the parties submitted supplemental briefing. Having considered the arguments of counsel and the parties' submissions, the Court GRANTS defendant's motion for the reasons set forth below.

BACKGROUND*fn1

Plaintiff Jeffrey Tam is 57 years old and of Chinese national origin. Plaintiff has worked for the United States Postal Service ("USPS") since 1980. Plaintiff began working for USPS as a driver, but switched positions from full-time driver to bulk mail assistant ("clerk") in 1999. Since 2006, plaintiff has been working as a full-time driver. Plaintiff's complaint is based on several events that occurred 23 between 1999 and 2006.

I. Schedule

USPS assigns schedules annually using a seniority-based bidding process. Prior to the annual 3 bidding process, management determines the reporting times and days ("shifts") for each position that 4 will be offered in the bidding process. Chadha Decl. ¶ 3. The employee with the most seniority within 5 the unit gets to choose first, and the employee with the least seniority within the unit must accept the 6 last shift. 7 At all times relevant to the complaint, Tam had the lowest seniority among clerks and had to 8 accept the last shift ("relief shift"). The relief shift had different starting times on different days, but 9 most other shifts had consistent starting times. Tam worked this shift from the time he became a clerk 10 in 1999 until he was reassigned to part-time driver in 2005. According to Tam, the different starting times of this shift caused him difficulty sleeping and negatively affected his health. The relief shift changed several times during Tam's time as a clerk. In 2003, starting times for the relief shift were changed. These changes required plaintiff to work more than hours in a row from Friday night to Saturday afternoon. Tam filed an EEO complaint about the schedule, and the parties settled on more agreeable shift hours. In 2005, the relief shift changed to have split days off, a condition 16 discouraged by the collective bargaining agreement. Tam requested a change in this new schedule, but his managers could not change his schedule without altering others' schedules and ruining the seniority-18 based bidding process. 19 20

II. Promotion

Plaintiff applied for a promotion to supervisor in 1999, 2000, 2001, 2002, and 2003. The first four times he applied, plaintiff did not make it past the first round of the application process, a board review. Inouye Decl. ¶ 7, 8. Keith Inouye, plaintiff's manager, selected the board members from a list provided by USPS and did not give input to the board. Id. ¶ 6. This board, whose selection process 25 occasionally included interviewing applicants, chose the applicants to move on to the second round. Id. 26 ¶ 7. In 2003, plaintiff advanced to the second round, an interview, but failed to answer all of the 27 interview questions. Id. ¶ 8.

Inouye, the interviewer, offered the promotion to another applicant. Id.

III. Reassignment

Plaintiff requested reassignment back to a full-time driving position in May 2002, but his request was denied. There were no full-time driving vacancies available to plaintiff at the time of his request because any open driving positions would have to be offered to other drivers before they could be offered to non-drivers, like plaintiff. See Inouye Decl. ¶ 9. According to plaintiff, there were vacant positions because another driver died in 2002, leaving his position open, and there was also evidence indicating that position number 363 was vacant. However, another driver filled position number 363, and the deceased driver's position was eliminated to cut costs. Supp. Chadha Decl. ¶ 5, 7.

Plaintiff again requested reassignment to a driving position in 2005, and he was ultimately reassigned to a part-time driving position. Plaintiff requested reassignment to a full-time driving position, but there were no full-time positions available to plaintiff because part-time drivers had claimed all the vacant full-time driving positions. Id. ¶ 9.

Plaintiff accepted reassignment to a part-time position and has since been reassigned ...


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