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Hector S. Collins, Mma (Cab v. John E. Potter

December 22, 2010


The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge


[Doc. No. 16]

On August 13, 2010, Defendant John E. Potter, Postmaster General for the United States Postal Service ("Defendant" or "Postal Service") filed a motion for summary judgment seeking judgment in its favor, and against Plaintiff Hector S. Collins as to all claims asserted in his complaint. [Doc. No. 16.] Plaintiff opposed Defendant's motion on November 29 [Doc. Nos. 26, 27], and Defendant filed its reply on December 6 [Doc. Nos. 30-32.]*fn1 The Court in its discretion found Defendant's motion for summary judgment suitable for decision on the papers and without oral argument pursuant to Civil Local Rule 7.1(d)(1). [Doc. No. 33.] For the reasons discussed below, the Court GRANTS Defendant's summary judgment motion.


The following facts are not reasonably in dispute. Plaintiff Hector S. Collins, a Mexican-American male, initiated this action for discrimination he allegedly experienced during his employment as a custodian for Defendant. [Def.'s Sep. Stmt. of Undisputed Facts ("SUF"), Doc. No. 16-7, SUF 1-2.]*fn2 Plaintiff has worked as a custodian at Defendant's Margaret L. Sellers Processing and Distribution Center ("MLSPDC") in San Diego since approximately June 21, 1997. [SUF 2; Def.'s Mot. for Summ. J., Doc. No, 16-8, p.1.] On or about June 15, 2008, Plaintiff discovered that one of the tires on his vehicle, which was parked in Defendant's MLSPDC's parking lot, had been punctured. [Complaint, ¶12.] On or about June 25, 2008, Plaintiff contacted Postal Service Equal Employment Opportunity ("EEO") counselor Suzanne Marchione regarding the incident. [SUF 3; Johnson Decl., Doc. No. 16-6, ¶1.] The matter was assigned Agency Case No. 1F-921-0025-08. [SUF 4.] Shortly thereafter, Plaintiff filed an informal complaint, known as an Information for Pre-Complaint Counseling ("IFPCC"). [SUF 5.] The IFPCC indicated Plaintiff believed he was being targeted by Filipinos and that his punctured tire was a result of vandalism. [Def.'s Notice of Lodgement, Doc. No. 16-1, Exh. 1.]*fn3

He further stated that Defendant did not do anything when Plaintiff reported the alleged vandalism, as retaliation for two prior EEO complaints Plaintiff filed in September 1998 and March 2001. [Id.; SUF 6-7.] At his deposition Plaintiff testified he told Martin Graham, a Maintenance Manager with the Postal Service, that he wanted to view the surveillance video of the parking lot for the night his tire was punctured. [Def.'s Supp. NOL, Doc. No. 30-5, Exh. 10 at p.051:13-25.] According to Plaintiff, Mr. Graham responded that he had already reviewed the video, and "[t]here is nothing there." [Id. at p.051:22-23; see also Graham Decl., Doc. No. 16-3, ¶¶1-2 (the video did not show anyone puncturing Plaintiff's tire, nor anyone walking or standing within twenty feet of Plaintiff's vehicle).] Similarly, Plaintiff testified he made a request to David Decker, a Supervisor of Maintenance Operation with the Postal Service, that he be allowed to review the surveillance video. [Exh. 10 at p.052:12-16; Decker Decl., Doc. No. 16-4, ¶1.] Again, according to Plaintiff, Mr. Decker indicated he had already reviewed the video, and did not see anyone puncture Plaintiff's tire, nor walk within twenty feet of Plaintiff's vehicle while it was parked in the lot. [Exh. 10 at p.052:17-24; Decker Decl. ¶2.]*fn4 Despite the managers' responses that they reviewed the video surveillance, Plaintiff filed an EEO complaint alleging a failure to investigate. [See Exh. 10, p.052:18-21.]

On July 30, 2008, approximately one month after Plaintiff's tire was punctured, Supervisor Jaime Tan called a meeting with the "Tour 3 night shift custodians," which included Plaintiff. [Tan Decl., Doc. No. 16-5, ¶1.] At the meeting, Mr. Tan informed the custodians "that they were not to walk around the MLSPDC parking lot after their shift ended other than to get to their cars." [Id.] Mr. Tan made the announcement to promote the night custodians' safety because their shifts ended around 11:00 p.m. when it was dark, visibility was poor, and management perceived a higher danger of crimes being committed against them. [Id.; SUF 16.]

Because Plaintiff had been walking around the parking lot after work for the past four months without reprimand, he interpreted Mr. Tan's instruction as retaliation against him for filing the EEO complaint challenging management's alleged failure to investigate the vandalism to his automobile. [SUF 10.] Thus, in a letter dated August 2, 2008, Plaintiff sought to amend his IFPCC to add a claim for retaliation based on Mr. Tan's instruction that Plaintiff could not walk around the perimeter of the MLSPDC parking lot after work. [SUF 8-9.]

The record indicates Defendant investigated Plaintiff's allegations of discrimination and retaliation regarding (1) management's perceived failure to investigate Plaintiff's vandalism report; and (2) the restriction that Plaintiff could not walk around the perimeter of the parking lot after work. [Exh. 3.] Documents created during the investigation reveal that Mr. Graham indicated he reviewed the surveillance video after Plaintiff reported his punctured tire, but the video did not reveal anyone committing the alleged vandalism. [Id.] Mr. Graham also reported that the "security video is no longer available due to a subsequent system crash." [Id.] With respect to the prohibition on employees walking around the parking lot after their shift ended, Maintenance Operations Manager Ralph Abos told the EEO Dispute Resolution Specialist he was not aware that Plaintiff was walking around the parking lot until after Plaintiff filed his EEO complaint. [Id.] But when Mr. Abos learned of Plaintiff's behavior, he told Mr. Tan to instruct the custodians not to walk around the lot after work because it was unsafe; employees were to leave the premises at the end of their work day. [Id.] Ultimately, the Specialist concluded there was no resolution to Plaintiff's complaints, and provided Plaintiff a notice of right to file a formal complaint. [SUF 11-12; Exh. 4.]

On or about September 2, 2008, Plaintiff timely filed a formal EEO complaint reasserting his discrimination and retaliation claims ("EEO Complaint").*fn5 [SUF 22, 23; Exh. 5.] On September 11, 2008, the Postal Service dismissed Plaintiff's EEO Complaint for failing to state a claim. [SUF 24-25; Exh. 6.] Plaintiff timely appealed the decision, which the Equal Opportunity Employment Commission ("EEOC") affirmed on January 14, 2009. [SUF 26-28; Exh. 7.]

On April 20, 2009, Plaintiff filed the present action against Defendant alleging two counts for discrimination and retaliation based on race in violation of 42 U.S.C. §§ 2000e et seq. [See generally, Complaint.] Specifically, Plaintiff asserts Defendant violated his Title VII rights: (1) "when it learned that one of his car tires had been punctured on June 15, 2008 in the employee parking lot, but purportedly did not investigate the incident or take any action; and (2) when management told Plaintiff and the other custodians at his pay location that they were expected to leave the MLSPDC premises, including the facility's parking lot, after their shifts ended." [Doc. No. 16-8, p.1.]


Pursuant to Federal Rule of Civil Procedure 56(c)(2), a party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." It is beyond dispute that "[t]he moving party bears the initial burden to demonstrate the absence of any genuine issue of material fact." Horphag Research Ltd. v. Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007) (citation omitted). "Once the moving party meets its initial burden, . . . the burden shifts to the nonmoving party to set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal quotation marks and citations omitted).

A mere scintilla of evidence is not sufficient "to defeat a properly supported motion for summary judgment; instead, the nonmoving party must introduce some 'significant probative evidence tending to support the complaint.'" Fazio v. City & County of San Francisco, 125 F.3d 1328, 1331 (9th Cir. 1997) (quoting Anderson, 477 U.S. at 249, 252). Thus, in opposing a summary judgment motion it is not enough to simply show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citations omitted). However, when assessing the record to determine whether there is a "genuine issue for trial," the court must "view the evidence in the light most favorable to the nonmoving party, drawing all reasonable inferences in [its] favor." Horphag, 475 F.3d at 1035 (citation omitted). On a summary judgment motion, the court may not make credibility determinations; nor may it weigh conflicting evidence. See Anderson, 477 U.S. at 255. Thus, as framed ...

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