United States District Court, E.D. California
FINDINGS & RECOMMENDATIONS
ALLISON CLAIRE, Magistrate Judge.
Pending before the court is defendant Patrick R. Donahoe's December 18, 2013 motion for summary judgment. Plaintiff opposes the motion. On February 13, 2014, this matter was submitted on the briefs. Having reviewed the motion and the documents filed in support and opposition, THE COURT FINDS AS FOLLOWS:
In 2009, plaintiff Karamen Ballard, a member of the National Postal Mail Handlers Union, worked as a Part-Time Regular Mail Handler for the United States Postal Service ("USPS") in Stockton, California, at its Processing and Distribution Center. Garcia Decl. ¶ 5. Plaintiff worked with three other part-time mail handlers in loading, unloading, and moving mail from 7:00 p.m. to 1:00 a.m. Id .; Ballard Dep. 85:24-86:25 (Boesch Decl. Ex. A). Plaintiff and the other part-time mail handlers were supervised by Virginia Garcia during the first part of their shift. Garcia Decl. ¶ 5. The last couple hours of the shift were supervised by Eladio Manzana. Garcia Decl. ¶ 5; Manzana Aff. ¶ 5. Occasionally, Juanita Mendoza would supervise the part-time mail handlers. Garcia Decl. ¶ 5; Mendoza Aff. ¶¶ 4, 5. It is essential that the work of mail employees such as plaintiff be completed in a timely, efficient manner in order to maintain the USPS's mission of providing prompt and reliable mail service to its customers. Garcia Decl. ¶ 6, Ex. A.
A. The Light-Duty Complaint
In early 2009, plaintiff took medical leave from his job. Ballard Dep. 24:22-24 (Boesch Decl. Ex. B). On March 25, 2009, after returning from leave, plaintiff made an informal Equal Employment Opportunity ("EEO") complaint, EEO Case No. 1F-953-0012-09, alleging that Sharif Estes, Manager of Distribution and Operations, refused to approve plaintiff's March 11, 2009 request for three days of light duty upon his return from medical leave and that this amounted to discrimination based on race and sex ("the Light-Duty Complaint"). Tam Decl. Ex. A; Ballard Dep. 24:22-29:23 (Boesch Decl. Ex. B), Ballard Dep. 148:13-152:7 (Boesch Decl. Ex. C); Boesch Decl. Ex. R. On May 27, 2009, the Light-Duty Complaint was resolved through internal mediation that resulted in an agreement to pay plaintiff $275. Tam Decl. Ex. A. Plaintiff alleges here that the retaliation now at issue is a product of the Light-Duty Complaint and mediation. Ballard Dep. 29:3-30:11 (Boesch Decl. Ex. B).
B. Plaintiff's Unscheduled Absences
In the six weeks after his return to full duty from medical leave in early 2009, plaintiff had ten unscheduled full-day absences and one --day absence. Garcia Decl. ¶ 7, Ex. B. Of these, the first seven were ultimately categorized as unscheduled Family Medical Leave Act absences (May 26-30, April 1-2). See id. Ex. B. The remaining four were not re-categorized, however, and were thus considered unscheduled leave without pay.
Unscheduled absences create problems since they are not approved in advance by management and thus can cause staff shortages. Garcia Decl. ¶ 7, Exs. C-D. In addition to the unscheduled absences, plaintiff called into the USPS's automated ERMS Leave System on May 18, 2009 and left a message noting that he would be absent from consecutive shifts on May 15, 17, and 18, 2009. Garcia Decl. ¶ 10, Ex. E. When plaintiff called in, the ERMS Leave System instructed plaintiff that he may be required to provide documentation to support his request. Ballard Dep. 174: 24-175:21 (Boesch Decl. Ex. D). The USPS's policy requires supervisors to regulate unscheduled absences by speaking with employees who have excessive absences and requesting documentation. Garcia Decl. Ex. C (ELM 511.42, 511.43), Ex. D (ELM 665.41, 665.42). Because plaintiff's unscheduled absences followed multiple other unscheduled absences, Garcia asked plaintiff to provide documentation to support his absences. Garcia Decl. ¶ 11. On May 20, 2009, plaintiff submitted a note that he had written himself stating that his family had a personal emergency that prevented him from reporting to work. See Garcia Decl. Ex. G. When plaintiff submitted his note, Garcia explained that she needed independent verification that he was unable to work and provided examples of a tow truck or repair shop record or a doctor's note. Garcia Decl. ¶ 11.
Plaintiff failed to submit any further documentation. Garcia Decl. ¶ 11. Accordingly, Garcia scheduled an investigative interview for May 27, 2009. Id . At the time, Garcia was not aware of any prior EEO activity by plaintiff, had not spoken with Sharif Estes regarding such activity, had not seen any EEO complaints by plaintiff, and had not attended any mediation regarding the complaint. Id.
C. The May 27, 2009 Investigative Interview
Neither plaintiff nor Garcia remember exactly how plaintiff was called to the May 27, 2009 investigative interview, though it was Garcia's practice to send a union shop steward to get the employee for such meetings. Garcia Decl. ¶ 12; Ballard Dep. 38:16-40:18 (Boesch Decl. Ex. E), Ballard Dep. 42:1-24 (id. Ex. F). Garcia declares that, prior to the interview, plaintiff did not request a consultation with the union steward. Garcia Decl. ¶ 12, Ex. F. In his deposition, plaintiff denied saying anything to Garcia before the interview began. Ballard Dep. 42:15-17 (Boesch Decl. Ex. F). In a June 10, 2009 grievance, however, plaintiff complained that he was denied a pre-interview consultation. Boesch Decl. Ex. W.
When plaintiff arrived at the interview, he was accompanied by a union steward and refused to answer any of Garcia's questions, a strategy he claims was based on a brief conversation he had with the union steward on his way to the interview. Garcia Decl. ¶ 12; see also Ballard Dep. 39:8-40:18 (Boesch Decl. Ex. E), Ballard Dep. 42:9-14 (id. Ex. F).
Though plaintiff does not remember what happened after this interview, Garcia declares that she granted plaintiff on-the-clock union time to consult with his union representative, as it is her practice to permit such consultations either before or after investigative interviews based on the employee's wishes. Ballard Dep. 46:7-16 (Boesch Decl. Ex. G); Garcia Decl. ¶ 13.
Either later on May 27, 2009 or the next day, on May 28, 2009, a union representative called Garcia to tell her that plaintiff wanted to apologize for his behavior during the interview (specifically, for not answering Garcia's questions). Garcia Decl. ¶ 13. Plaintiff explained in his deposition that when he spoke to Garcia, he only apologized for not providing her with documentation. Ballard Dep. 45:6-45:25 (Boesch Decl. Ex. G). After the call with plaintiff, Garcia granted him one more week to provide adequate documentation. Garcia Decl. ¶ 13. Plaintiff, however, again failed to submit acceptable documentation. Garcia Decl. ¶ 13, Ex. G; Ballard Dep. 45:6-45:25 (Boesch Decl. Ex. G); Ballard Dep. 127:3-128:3 (id. Ex. H); Ballard Dep. 174:8-177:13 (id. Ex. D).
D. Letter of Warning
In light of plaintiff's failure to submit adequate documentation concerning his May 15, 17, and 18, 2009 unscheduled absences, Garcia issued a Letter of Warning on June 8, 2009, charging plaintiff with "Failure to Follow Instructions - Failure to Provide Requested Documentation." Garcia Decl. ¶ 14, Ex. G. Garcia wrote this letter because, as supervisor, she is responsible for minimizing unscheduled absences, including by monitoring attendance and discussing attendance issues with employees, and plaintiff agrees that multiple absences from work are an attendance issue. Garcia Decl. ¶ 14, Exs. C-D, G; Ballard Dep. 81:3-5 (Boesch Decl. Ex. I). Between 2007 and 2009, Garcia issued similar Letters of Warning to three employees other than plaintiff for attendance issues, none of whom had a history of EEO activity of which Garcia was aware. Garcia Decl. ¶ 15, Ex. H.
After plaintiff submitted a grievance challenging the propriety of the June 9, 2009 Letter of Warning, see Ballard Dep. 57:22-58:7 (Boesch Decl. Ex. J), the matter was negotiated between a union representative and the USPS, with the latter ultimately reducing the Letter of Warning to an "official discussion" to be held in plaintiff's personnel file for two years. Boesch Decl. Ex. S. The union representative agreed to this settlement over plaintiff's objection. See id.
E. Union Consultations
Between April 28, 2009 and October 2009, plaintiff requested time for on-the-clock union consultations from all of his supervisors (Garcia, Manzana, and Mendoza). Garcia Decl. ¶ 17; Manzana Aff. ¶¶ 10-12; Mendoza Aff. ¶¶ 10-11. All three supervisors allowed him on-the-clock union time, not always immediately but usually within 24 hours of the request. Garcia Decl. ¶ 17; Manzana Aff. ¶¶ 10-12; Mendoza Aff. ¶¶ 10-11; Ballard Dep. 35:21-36:15 (Boesch Decl. Ex. M). Plaintiff's supervisors each handled his requests exactly as they handled similar ones by other employees. See Garcia Decl. ¶ 17; Manzana Aff. ¶¶ 11-12; Mendoza Aff. ¶ 11.
On multiple occasions, plaintiff asked Garcia for on-the-clock consultations with a union shop steward. Garcia Decl. ¶ 17. Garcia sometimes granted plaintiff's requests immediately, though at other times she deferred the requests because work was busy or because a shop steward was unavailable. Id . Garcia was a shop steward herself for several years prior to becoming a supervisor and, as a result, appreciates the importance of these consultations. Id . As a supervisor, Garcia attempted to balance the need to get mail processed efficiently with the desire to provide on-the-clock union consultations at the time they are requested. Id . Occasionally, plaintiff would ask to speak with a shop steward immediately even though work was busy and he was needed on the floor. Id . Since timely mail processing is critical to the USPS's mission, Garcia would schedule on-the-clock union consultations around mail operations. Id . As was her practice with other employees, Garcia would sometimes tell plaintiff he could have his on-the-clock consultation when it was convenient for work operations and when a steward was available. See id. (declaring that she handled union requests in 2009 by the following other employees in the same way that she handled plaintiff's requests: E.S. Mail Handler, Mexican American male, EEO activity; D.D. PTR Mail Handler, Caucasian female, no known EEO activity; K.C. Mail Handler, Indian female, no known EEO activity; Y.L., Clerk, Chinese female, no known EEO activity; and N.S., Clerk, African American female, no known EEO activity). Other times, she would allow employees, including plaintiff, to meet with a steward right away. Id . It was Garcia's practice with all her employees, including plaintiff, to allow on-the-clock meetings with stewards within 24 hours of the request per her understanding of the union agreement. Id.
Plaintiff's other supervisor, Mendoza, typically did not allow on-the-clock union time immediately, but did so within 24 hours of the request and scheduled around work needs. Mendoza Aff. ¶ 11. One time, Mendoza denied plaintiff's request for union time and immediately corrected her mistake. On June, 5, 2009, she called plaintiff in for an investigative interview. Id . ¶ 10. When plaintiff asked for a pre-interview consultation, Mendoza denied his request as she thought the request was informal, and the interview was conducted with a union steward present. Id . Mendoza later learned, though, that plaintiff was entitled to a pre-interview union consultation upon request. Id . She corrected her mistake by disregarding the interview and discarding her notes, thus nullifying the interview. Id.
Plaintiff's third supervisor, Eladio Manzana, typically provided union time to employees, including plaintiff, as soon as a steward was available. Manzana Aff. ¶¶ 10-12.
Plaintiff challenges these assertions, claiming that three of his requests for union time were denied by each of his supervisors. Plaintiff first requested union time from Garcia on October 19, 2009, a request she denied on the ground that a shop steward was unavailable. See Opp'n, Ex. 18; Garcia Aff. ¶ 12 (Opp'n, Ex. 1). She told plaintiff that his request would be granted the following day. At his next scheduled shift, plaintiff requested union time from Manzana, who also denied the request on the ground that no steward was available. Manzana Aff. ¶¶ 10-12. On October, 22, 2009, when plaintiff requested union time from Mendoza (his third request), she granted plaintiff's request, though plaintiff asserts that he was not actually able to consult with a union representative that day. Mendoza Aff. ¶¶ 10-11; Opp'n, Ex. 18.
F. Vacation and Schedule-Change Requests
Garcia and Manzana supervised the same mail handlers but at different points during a shift. Garcia Decl. ¶ 18; Manzana Aff. ¶ 5. In early 2009, employees could direct vacation and schedule-change requests to either Garcia or Manzana. Garcia Decl. ¶ 18. Eventually they ended up short-staffed one day as they had not coordinated their responses to such requests. Id . From then on, Sharif Estes, Garcia and Manzana's supervisor, instructed that Garcia should handle all requests so as to avoid this problem. Id . In June 2009, Garcia approved plaintiff's vacation request for June 24 through June 29, 2009. Garcia Decl. ¶¶ 7, 19, Ex. B.
1. Vacation Requests
On June 19, 2009, Garcia asked plaintiff to submit the rest of his vacation requests for the year at that time, explaining that he had missed vacation sign-ups early in the year because he was out on leave and that he should put in the rest of his requests right away. Garcia Decl. ¶ 19. She did this to assist in planning, so she could ensure adequate mail-handling coverage for any additional vacation dates plaintiff requested. Id . Garcia explained to plaintiff that he should request additional dates at that time, as later requests would be considered incidental and granted at management's discretion based on operational needs. Id . Plaintiff did not submit any additional vacation requests at that time. Id .; see also Ballard Dep. 95:21-96:1 (Boesch Decl. Ex. P).
In October 2009, plaintiff submitted a new vacation request. Garcia Decl. ¶ 20; Mendoza Aff. ¶ 23; Ballard Dep. 169:1-17 (Boesch Decl. Ex. L; see also id., Ex.T). At that time, plaintiff did not have any accrued vacation leave to cover his request and therefore was requesting leave without pay ("LWOP"). Garcia Decl. ¶ 20; Mendoza Aff. ¶ 23. The USPS's policy requires management to carefully examine LWOP requests, considering the needs and costs to the USPS before granting the request. Garcia Decl. ¶ 20, Ex. J. Garcia considered and denied plaintiff's October 2009 LWOP request based on operational needs: how much mail required processing on the days he requested and the number of mail handlers scheduled to work. Garcia Decl. ¶ 20. Plaintiff submitted another request to Mendoza, who also ultimately denied plaintiff's LWOP request. Boesch Decl. Ex. T; Garcia Decl. ¶ 20; Mendoza Aff. ¶ 23.
2. Schedule-Change Requests
Between April 28, 2009 and October 2009, plaintiff submitted multiple schedule-change requests to both Garcia and Mendoza. Garcia Decl. ¶ 21; Mendoza Aff. ¶ 20. Some of these requests were approved and others were denied. Id . These approvals and denials were dictated according to the need for adequate mail-handler coverage each day. Garcia Decl. ¶ 21; Mendoza Aff. ¶ 22. These requests were handled in the same way for other employees. Garcia Decl. ¶ 21, Mendoza Aff. ¶ 21.
G. Plaintiff's Work Performance
In early 2009, Garcia often saw plaintiff standing around instead of working, and, as she did with other employees, would sometimes urge him to work. Garcia Decl.¶¶ 22-23. Manzana also noticed that plaintiff was not completing work assigned to him. Manzana Aff. ¶ 13.
In the summer of 2009, Garcia noticed plaintiff and another mail handler, Lakveer Kaur, standing around talking instead of working. Garcia Decl. ¶ 23. Garcia asked why they were talking and asked if they did not have any work to do. Id . While Garcia tried to find them tasks, plaintiff began to raise his voice. Id . Garcia asked plaintiff if he wanted to talk in the office, and he told her he had nothing to say to her. Id . Garcia then asked plaintiff to lower his tone and instructed plaintiff and Kaur to go on break for no more than 20 minutes, which they did. Id . In an EEO complaint filed on November 18, 2009, plaintiff discussed this incident, claiming that he and many other mail handlers were waiting for work and alleging that it was Garcia, and not him, who yelled. See Boesch Decl. Ex. U at P-00241.
In the fall of 2009, Garcia went into the letter breakdown area and saw plaintiff and mail handler, Natalie Montes, standing around talking. Garcia Decl. ¶ 23. Garcia asked both employees whether they had checked for mail in two different areas and was told that they had. Id . Garcia told them to go on break as there was no ...