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Helen Whelan v. John E. Potter

August 14, 2012



This matter is before the court on the motions of defendant ("USPS" or "defendant") for summary judgment and to strike plaintiff's opposition to the motion. Plaintiff opposes the motions. The court heard oral argument on Friday, May 18, 2012. For the reasons set forth below, defendant's motion to strike is granted in part and denied in part, and defendant's motion for summary judgment is granted in part and denied in part.


A. Procedural History

Plaintiff filed her complaint on December 30, 2009, asserting claims for: (1) age discrimination under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq.; (2) disability discrimination for disparate treatment under the Rehabilitation Act of 1973, 29 U.S.C. § 706 et seq.; (3) disability discrimination for failure to accommodate under the Rehabilitation Act of 1973, 29 U.S.C. § 706 et seq.; (4) "Reprisal for Engaging in Protected Activity" under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq.; (5) gender discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq.; and (6) pay discrimination under the Equal Pay Act, 29 U.S.C.A. § 206(d)(1). (Pl.'s Compl., ECF 1.) Defendant answered the complaint on March 15, 2010. (Def.'s Answer, ECF 6.)

USPS filed its motion for summary judgment on February 20, 2012. (Def.'s Mot.

for Summary Judgment ["MSJ"], ECF 18.) Plaintiff filed her opposition on March 9, 2012. (Pl.'s Opp'n to Def.'s MSJ ["Opp'n"], ECF 21.) According to the court's scheduling order, plaintiff's opposition and documents in support thereof were due by 4:00 p.m., on March 9, 2012. (See Status Pretrial Scheduling Order, ECF 8 at 3:16-22.) Plaintiff, however, did not file her opposition, and various supporting documents, until 10:37 p.m. (See Def.'s Mot. to Strike ["MTS"], ECF 72 at 2:20-21.) Plaintiff also filed two declarations and forty-one exhibits in support of her opposition on March 11, 2012, two days after the court's filing deadline. (See ECF 27-70.) Based on these untimely filings, USPS filed its motion to strike the opposition and supporting documents on March 16, 2012. (See MTS.) Plaintiff filed an opposition to the motion to strike on March 20, 2012. (Pl.'s Opp'n to Def.'s MTS ["Opp'n to MTS"], ECF 73.) Plaintiff also filed a number of "amended documents" in support of her opposition to defendant's motion for summary judgment. (See ECF 86-88.)

B. Factual Background*fn1

Plaintiff has been an employee with defendant USPS since 1986. (UF ¶¶ 1-2.)

This case arises out of plaintiff's allegations that, throughout plaintiff's employment with the USPS, her employer has continually discriminated against her based on her age, gender and disability. Specifically, "[t]his lawsuit is based on two Equal Employment Opportunity claims filed by Whelan: Claim 4F-956-0170-07 (the '2007 claim') and 4F-956-0080-08 (the '2008 claim')." (UF ¶ 6.) Plaintiff filed the former claim on November 14, 2007, and the latter on April 17, 2008. (UF ¶¶ 7-8.) The Equal Employment Opportunity Commission ("EEOC") issued a decision on September 25, 2009, notifying plaintiff that she had to file suit within ninety days of receiving the decision. (UF ¶ 10.) Defendant states that "[p]laintiff does not know when she received the final agency decision" (UF ¶ 11); plaintiff, however, submitted a declaration stating she "received the EEOC Office of Federal Operations decision dated September 25, 2009, from James Wright, [her] non-attorney representative on October 7, 2009." (Whelan Decl., ECF 27 at 2:13-15.*fn2

In February 2006, USPS hired plaintiff as the "Manager, Customer Service at the Royal Oaks Post Office in Sacramento, California." (UF ¶ 15.) In this position, there was one tier of supervisors between plaintiff and letter carriers, labeled "Supervisor, Customer Service."

(UF ¶¶ 17-18.) "In May, 2006, Whelan reported that she had been assaulted by a subordinate employee." (UF ¶ 19.) Plaintiff testified that this incident caused her to suffer from post-traumatic stress disorder. (Whelan Depo. at 48:12-17.) Because of this condition, plaintiff was "[r]estricted from directly supervising non-supervisory employees." (Affidavit of Scott Renteria,*fn3 attached as Exhibit C to MSJ ["ECF 18-4"], ECF 18-4.)

Plaintiff was detailed to work at the Perkins branch of the USPS as a manager, customer service, in Sacramento, from May 2007 to August 2007. (Whelan Depo. at 34:6-22.) Her duties "at Perkins were essentially the same as at Royal Oaks," only on a "smaller scale." (Id.) Plaintiff testified that in 2007, she was denied a merit pay increase because she was not at work due to medical restrictions, and thus, did not complete her year-end accomplishments. (Id. at 76:16-19.) However, according to plaintiff, Amber Angeline, a supervisor, customer service (UF ¶ 60), "under the age of 40 at the time had not been at work for several months" and "did not complete her end-of-year accomplishments," but was given a pay raise. (Whelan 76:14-25.) Plaintiff also testified that in 2006, a younger employee, Jeanine Philips, who had a non-work related injury was provided non-supervisory work, whereas USPS refused to provide plaintiff similar work to accommodate her post-traumatic stress disorder. (Id. at 76:16-18:18, 82:11-15, 83:1-5.) Both Amber Angeline and Jeanine Philips were supervisors, customer service. (UF ¶¶ 60, 65.) Moreover, "[i]n 2006 and 2007, Sacramento Postmaster Dave Dillmand and Scott Renteria asked [Whelan] when she was able to retire." (UF ¶ 61.) According to plaintiff, they asked her this because the union did not like her and wanted her removed from her post. (Whelan Depo. at 80:4-10.)

Scott Renteria, the manager of customer service operations for all post offices located in zip codes beginning 958 (UF ¶ 4), conducted an investigative interview with Whelan as a result of what he believed to be plaintiff's failure to discharge her duties at the Perkins branch. (UF ¶ 27; ECF 18-4.) Plaintiff was then transferred to Fort Sutter, as a supervisor of customer service. (Whelan 34:23-35:5.) According to Scott Renteria, "plaintiff was removed from the Perkins Post Office for failing to perform the duties for which she was hired" and was placed at Fort Sutter "in a developmental assignment." (ECF 18-4.) Plaintiff held the position at Fort Sutter for "[l]ess than 10 days," when plaintiff took her sick and annual leave because she had "[a]n interaction with an employee that caused [her] to have a flashback." (Whelan Depo. at 35:10-23.)

Plaintiff sought a position supervising non-craft employees; defendant, according to plaintiff, refused to provide such a position. (Id. at 92:20-93:1, 95:13-96:25.) Renteria, however, maintained there were no positions available to accommodate those restrictions. (ECF 18-4.) Plaintiff, however, testified that such positions were available, but defendants found various reasons not to place her in those positions. (Whelan Depo. at 85:4-23.)

After returning from leave, plaintiff filled a number of random positions until, in August 2010, plaintiff returned as the manager, customer service at Royal Oaks, the position she holds today. (Whelan Depo. at 41:13-24.) During this time, plaintiff continually requested that "the USPS change the designation for Royal Oaks Carrier Unit from a Level 22 to a Level 24, despite being told by her supervisors to stop." (UF ¶ 55.) Before plaintiff accepted the position at Royal Oaks, plaintiff admits that position was advertised as a level 22. (Whelan Depo. at 100:10-15.) When Michael Hoffman held the position before plaintiff as the manager of customer service at Royal Oaks, the position was a level 22. (Id. at 109:8-12.) According to plaintiff's deposition testimony, there was not "any change in the work units between the time that Mike Hoffman left that position and the time [plaintiff] came to it." (Id. at 109:13-17.)


A. Sanctions

District courts have inherent power to manage their dockets. Atchison, Topeka & Santa Fe Ry. Co. v. Hercules Inc., 146 F.3d 1071, 1074 (9th Cir. 1998). Indeed, "[a]ll federal courts are vested with inherent powers enabling them to manage their cases and courtrooms effectively and to ensure obedience to their orders." Aloe Vera of Am., Inc. v. United States, 376 F.3d 960, 964-65 (9th Cir. 2004) (per curiam) (internal quotations omitted) (quoting F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc., 244 F.3d 1128, 1136 (9th Cir. 2001)). Moreover, the local rules provide that "[f]ailure of counsel or of a party to comply with the [] Rules or with any order of the Court may be grounds for imposition by the court of any and all sanctions authorized by statute or Rule . . . ." E.D. CAL. L. R. 110.

A court may also impose sanctions where "a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response." FED. R. CIV. P. 37(d)(1)(A)(ii).*fn4 Permissible sanctions include: "(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination." FED. R. CIV. P. 37(d)(3)*fn5 ; FED. R. CIV. P. 37(b)(2)(A)(i)-(vi).

B. Summary Judgment

Summary judgment is appropriate when the moving party demonstrates that no genuine issue as to any material fact exists, and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. at 324. Indeed, summary judgment should be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. FED. R. CIV. P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, id. at 251-52.

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank, 391 U.S. at 289. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Rule 56(e) advisory committee's note on 1963 amendments).

In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. FED. R. CIV. P. 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987).

Finally, to demonstrate a genuine issue that necessitates a fact finder, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 586-87.


A. Defendant's Motion to Strike

Defendant moves to strike plaintiff's opposition to defendant's motion for summary judgment, arguing that plaintiff's comprehensive failures to comply with the court's scheduling order, the Local Rules and the Federal Rules of Civil Procedure warrant the severe sanction of striking plaintiff's opposition, and documents in support ...

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