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George v. Potter

April 5, 2010

JODY K. GEORGE, PLAINTIFF,
v.
JOHN E. POTTER; AND UNITED STATES POSTAL SERVICE, DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Document 66)

Defendants John E. Potter and United States Postal Service ("Defendants" or "USPS") filed the instant motion for summary judgment on July 27, 2009. The matter was heard on November 20, 2009, before the Honorable Dennis L. Beck, United States Magistrate Judge. Sylvia Quast, Assistant United States Attorney, appeared on behalf of Defendants. Elaine W. Wallace appeared on behalf of Plaintiff Jody K. George ("Plaintiff" or "George").

PROCEDURAL BACKGROUND

Plaintiff, initially proceeding pro se, filed the instant action on August 4, 2003. On June 8, 2004, Plaintiff filed a First Amended Complaint alleging (1) discrimination based on race (white) and sex (male); and (2) retaliation for seven complaints ("Cases") filed with the Equal Employment Opportunity Commission ("EEOC"). Plaintiff also alleged that the conduct in each complaint to the EEOC, when taken together, created a hostile work environment.

On July 27, 2009, Defendants filed the instant motion for summary judgment.

Defendants argue that: (1) the Court lacks jurisdiction over Plaintiff's hostile work environment claim because he failed to administratively exhaust it; (2) Plaintiff cannot establish a prima facie case of discrimination in any of his EEOC Cases; and (3) Defendant USPS undertook all of the challenged actions for legitimate business-related reasons and not out of an impermissible discriminatory or retaliatory motive.

Plaintiff opposed the summary judgment motion on August 29, 2009. Defendants filed their reply on October 2, 2009.

On October 7, 2009, the Court continued the hearing on Defendants' motion because Plaintiff's opposition was partially deficient. The Court ordered Plaintiff to file a response to Defendants' Statement of Undisputed Material Facts in compliance with then Local Rule 56-260(b). Defendants also were permitted leave to reply.

On October 27, 2009, Plaintiff filed "Admissions and Denials of Defendant's Statement of Undisputed Facts", a separate "Statement of Disputed Facts in Response to Defendant's Statement of Undisputed Facts," the Supplemental Declaration of Elaine W. Wallace and supporting exhibits.

On November 6, 2009, Defendants filed a response, along with the supporting declaration of Steve Tomlins, Postmaster of Turlock, California.

FACTUAL SUMMARY

In 1979, the USPS hired Jody George, a white male, and in 1982, he became a full-time mail carrier in the Merced Post Office. USPS' Statement of Undisputed Facts ("SUF") 1. In approximately 1994 or 1995, George became a "T-6," which is a carrier that delivers the regular routes of others on their days off. He remained in this position, except for a brief period in 2000, until he was removed in 2001. SUF 2.

For much of the time after he became a T-6, George would submit requests (also known as Form 3996s) for overtime or the assistance of others to complete his work at least three times a week, even requesting it daily during some periods. SUF 3. Carriers receive time-and-a-half pay for the first two hours of overtime, and double time if they work more than ten hours. SUF 4.

George's supervisors characterized him as performing in the bottom 25% of carriers in the Merced Post Office because of his inefficient mail-handling and time-wasting practices. SUF 5. Other carriers would complain about having to do George's work for him, and Merced Post Office supervisors would have to reschedule other carriers' work and spend overtime to "bail out" George by helping him complete his routes. SUF 6.

George knew that his supervisors at the Merced Post Office felt that he worked too slowly. SUF 7; Deposition of Jody George ("George Dep.") 46:7-15. The supervisors at the Merced Post Office tried various ways to improve his performance and get George to change his inefficient practices, including direct personal instruction and counseling, training by other individual carriers, and collaborative efforts with the union to help him correct inefficiencies. SUF 8. Postmaster Paul Tracy even dismissed all disciplinary actions against George prior to 2000 and removed them from George's personnel file because Tracy thought that if George wasn't upset about such actions, he might perform better. SUF 9.

George's supervisors were concerned about George being a threat to others including themselves, with Tracy even checking his mirror when going home. SUF 10. George's supervisors called the police in November 1999, and again in October 2000, when he disobeyed orders to leave the premises after he clocked out, and they issued him at least one 14-day suspension for this conduct. SUF 11.

The EEOC did not find that the USPS had discriminated or retaliated against George in any of his EEOC Cases. SUF 12.

CASE 1: 1996 Vehicle Accident (USPS Claim No. 4F-956-0069-97)

While George was delivering mail on October 10, 1996, a person backing out of her driveway hit George's postal vehicle as he was parked in front of her residence. SUF 13. Carl Thornton, a white male supervisor at the Merced Post Office, came out to investigate the accident, talked to George, and determined that George had parked his vehicle such that it was blocking the woman's driveway. SUF 14. On October 30, 1996, Thornton issued a notice of a 7-day suspension to George for failing to operate his postal vehicle in a safe manner, which George grieved and the USPS reduced to a letter of warning to be kept in his personnel file for one year on January 2, 1997. SUF 15.

Less than a month prior to the October 10, 1996, vehicle accident, George had received a letter of warning for failing to operate his vehicle in a safe manner. SUF 16. George had also had two other accidents with USPS vehicles in the 1993-94 timeframe, one in which he skidded into a mailbox and another in which he dented the top of the vehicle by driving under a low-hanging tree limb. SUF 17.

After a hearing, the EEO denied George's complaint about the notice of suspension. SUF 19. George engaged in EEO activity at least five times in the year following the letter of warning. SUF 18.

CASE 2: 1997 Street observation and lifting technique instruction (USPS Claim No. 4F-956-0177-97)

George alleges that after he requested time to do an EEO affidavit on June 9, 1997, his supervisor, Leroy Hoskins, a Hispanic male, followed him while he was delivering mail and talked to him about his lifting technique. He also complained that Hoskins questioned him on June 11, 1997, about how much time it took to deliver his route on June 9, 1997. George acknowledges that street observation by supervisors is part of their normal duties and that he didn't use proper lifting technique with a parcel on June 9, 1997. SUF 20. George did not receive any discipline in connection with these events. SUF 21; George Dep. 250:21-251:13.

After a hearing, the EEOC denied George's complaint. SUF 22.

CASE 3: 1997 use of unauthorized overtime (USPS Claim No. 4F-956-0052-98)

On October 22, 1997, George told Paul DeLeon, a Hispanic male supervisor in the Merced Post Office, that he would need two hours of overtime to carry his route, and DeLeon responded by approving one hour of overtime and giving George another hour of help in the office to prepare for carrying his route. SUF 23; Exhibit 3 to Supplemental Declaration of Elaine Wallace ("Wallace Supp. Dec."), at US 5155 . George used 2 hours and 35 minutes of overtime on October 22, 1997. SUF 24.

On October 28, 1997, Leroy Hoskins issued a letter of warning to George for failing to follow DeLeon's instructions and working unauthorized overtime on October 22, 1997. After George filed a grievance, the letter was reduced to documented instructions on February 24, 1998, and was subsequently removed from his file altogether. SUF 25.

After a hearing, the EEOC denied George's complaint. SUF 26.

CASE 4 1997 failing to follow instruction about use of mail delivery tray (consolidated with 3 and 5 when filed formal EEOC charge) (USPS Claim No. 4F-956-0063-98)

On October 25, 1997, DeLeon observed George while George was delivering mail and noted that George had placed a cooler, which served as his lunch pail, on the mail delivery tray next to him in his vehicle, even though DeLeon had previously told him not to do so because it was taking up space that should be occupied by mail. SUF 27; Exhibit 3 to Wallace Supp. Dec., at US 5155.

On November 25, 1997, DeLeon issued a notice of a 7-day suspension to George for failing to follow instructions. SUF 28.

After a hearing, the EEOC denied George's complaint. SUF 29.

CASE 5: 1997 failing to follow instructions about time-wasting practices (USPS Claim No. 4F-956-0070-98)

On December 3, 1997, after George requested approximately three hours of overtime to deliver his route, Hoskins observed that, despite being previously instructed to have mail ready for delivery when George arrived at a house and to avoid backtracking, George did not have his mail ready at several deliveries and backtracked. SUF 30; Exhibit 3 to Wallace Supp. Dec., at US 5155-56. Hoskins issued George a notice of a 14-day suspension for the incident. SUF 31.

After a hearing, the EEOC denied George's complaint. SUF 32.

CASE 6: 2000 use of unauthorized overtime and calling supervisor names (USPS Claim No. 4F-956-0162-01)

On October 23, 2000, Matthew Rhoades, a white male supervisor in the Merced Post Office, following standard procedure, requested that George provide a Form 3996 estimating how much overtime or auxiliary assistance George would need that day, to which George responded by asking for time to see his union representative. SUF 33. Rhoades agreed to give George the requested time, but then they started to argue over when George would take that time, with Rhoades finally telling George to return to casing his mail. Instead, George went to complain to the postmaster. SUF 34.

On or about November 11, 2000,*fn1 George requested that Rhoades authorize 4 hours and 40 minutes of overtime or assistance to complete his route; Rhoades gave him more time than he requested, but George took almost two hours more than authorized, incurring penalty overtime (i.e. work for which George would be paid double time) and missing the last dispatch of outgoing mail. SUF 35.

On November 22, 2000, Rhoades issued George a letter of warning for the October 23 and the November 11 incidents. SUF 36.

On October 24, 2000, Rhoades asked George to provide an estimate of how much overtime or auxiliary assistance George would need, to which George responded by asking for time to see his union representative, and the two fell into another argument. SUF 37.

On October 24, 2000, Rhoades instructed George to case his mail, but a few minutes later, George left his case, and approached Rhoades' desk to bring up the overtime issue again. Rhoades reiterated his instruction that George case his mail; in response, George called Rhoades a "hypocrite" and a "liar" in front of other employees on the workroom floor. SUF 38; George Dep. 332:15-16.

On November 22, 2000, Rhoades issued George a notice of a 7-day suspension in which there was no time actually off work or pay deducted for the incident. George grieved the notice and it was reduced to a letter of warning on March 19, 2001. SUF 39.

On November 22, 2000, Rhoades and George met regarding the letter of warning and the suspension notice, and while George was reading the documents, he repeatedly told Rhoades he was being "tight" and a "tightwad," even after he was asked to stop. SUF 40; George Dep. 342:15-22; 343:14-24.

On November 29, 2000, Rhoades issued a notice of a 7-day paper suspension to George in connection with George's behavior at the meeting on November 22. George grieved this notice ...


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