United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
EDMUND F. BRENNAN, District Judge.
This matter was before the court on March 5, 2014, for hearing on defendant's motion for summary judgment. Assistant U.S. Attorney Edward A. Olsen appeared on behalf of the defendant; plaintiff Lal Dev appeared pro se. After careful consideration of the moving and opposing papers and the oral arguments, it is recommended that defendant's motion be granted.
I. Procedural Background
Plaintiff, Dev, a postal employee, filed this action against Patrick R. Donahoe, Postmaster General of the United States, pursuant to Title VII of the Civil Rights Act of 1964. Compl., ECF No. 1. Dev alleges that he was subjected to discrimination on account of his race, color, and sex, and to retaliation, when his rural route was adjusted on March 24, 2012, which resulted in his annual salary being reduced. Id. ¶ 40.
The Postmaster has moved for summary judgment, arguing that Dev cannot establish a prima facie case of either disparate treatment or retaliation, and even if he could he cannot show that the Postmaster's articulated legitimate reasons for the purported adverse action are pretextual. Def.'s Mot. for Summ. J., ECF No. 27. In violation of Local Rule 230, Dev failed to timely file an opposition to the motion. Accordingly, Dev was ordered to show cause why sanctions should not be imposed. ECF No. 31. His response asserted that the failure to file an opposition was inadvertent. Ultimately, the order to show cause was discharged without imposition of sanctions and Dev was granted additional time to submit an opposition. That opposition has since been filed and has been considered. ECF Nos. 34, 36, 37. Additionally, as discussed below, the court ordered supplemental briefing and declarations have been filed and considered.
A. Rural Letter Carriers
Plaintiff, Dev, is employed by the United States Postal Service as a rural letter carrier at the Rocklin Post Office. Decl. of Cheri Smith ("Smith Decl."), ECF No. 27-3, ¶ 10. He is a native of India and his race is Asian Indian. Compl. ¶ 21. Rural letter carriers are unionized under the National Rural Letter Carriers' Association ("Association"), which has a collective bargaining agreement ("Agreement") with the Postal Service. ECF No. 27-3 ¶ 9; Decl. of Sandra Schmidt, ECF No. 27-2, ¶ 5. There are 17 regular rural routes at the Rocklin Post Office. ECF No. 27-3 ¶ 6. The Postmaster at the Rocklin Post Office is Cheri Smith, a Caucasian, white, female. Id. ¶¶ 1, 5.
Much of the instant dispute concerns the classification or evaluation of plaintiff's mail route which resulted in a pay reduction. The United States Postal Service does not compensate its rural carries on an hourly basis. Instead, rural carries are paid a salary based on an Evaluated Compensation System provided in the Agreement. Second Supplemental Declaration of Sandra Schmidt ("2nd Supp. Schmidt Decl."), ECF No. 44 ¶ 7. To determine a rural carrier's annual salary, the Postal Service first calculates the "standard hours and minutes" for each rural carrier's route, which is determined by three elements: (1) the length of the route, (2) the number of mail boxes, and (3) the weekly average of mail delivered. Id. ¶¶ 8-9. The standard hours and minutes is the amount of time it should take a carrier to complete the route. Id. ¶ 8. Each route's standard hours and minutes are reviewed at least annually and can change from year to year. Id. ¶ 10.
After the standard hours and minutes for a route are assessed, the Postal Service then determines the number of "evaluated hours" for each rural carrier's route. Id. ¶ 11. The number of evaluated hours can range from 40 to 48 hours. Id. ¶ 12. A rural carrier is given a fixed salary based on the number of evaluated hours for his or her route, with step increases depending on years of service with the Postal Service. Id. Generally, under this system the higher the evaluated hours, the higher the carrier's salary will be. Id.
The number of evaluated hours for a route is determined by (1) the number of standard hours and minutes for the route, and (2) whether the route is classified as a "H" route, a "J" route, or a "K" route. Id. ¶ 13. But the classification of the route also determines the number of work days in a pay period which also affects salary. Significantly here, an H route requires a carrier to work all 12 days during a pay period with no days off. Id. ¶ 14. A J Route is one in which the carrier works 11 days in the pay period and receives a day off (in addition to the Sundays which carriers do not work). Id. A K route is one in which the carrier works 10 days in the pay period and receives two days off (in addition to Sundays). Id.
To determine the evaluated hours for a route, the Postal Service uses the Table of Evaluated Hours for Rural Carriers ("Table") set forth in the Agreement. Id. ¶ 15; see also ECF No. 27-2 at 11. The table contains two columns; the left column lists various standard hours and minutes, and the right column contains the corresponding evaluated hours for the standard hours and minutes. ECF No. 44 at 3-4, ¶ 15. Thus, to determine a route's evaluated hours, the Postal Service first assesses the route's standard hours and minutes, then locates the standard hours and minutes in the left column, and finally scrolls across to the right column to find the evaluated hours for the route. Id. at 4, ¶¶ 16, 17. Depending on the total standard hours and minutes, the route will be classified as an H, K, or J route. Id. ¶ 15. For example, if the standard number of minutes for a route is assessed at 53:24, the route is classified as a K route, with the corresponding number of evaluated hours at 45. Id. ¶ 15, 18. This route would be classified as a K45 route, meaning the carrier works 10 days a pay period and has 2 relief days, and the carrier's salary is based on 45 evaluated hours. Id. ¶ 18. In contrast, an H route has no relief days and the carriers on such routes work every day but Sundays. Id. ¶ 15.
To further complicate things, under the Table the standard hours and minutes for a route sometimes falls into two possible classifications and, accordingly, two different evaluated hours categories. Id. ¶ 20. These are referred to as the high and low election in the Agreement. Id. For example, if the route's standard hours and minutes are assessed at 46:22, the route falls into two possible classifications, a J (one relief day) route and an H (no relief days) route. Id. ¶ 21. If the carrier elects the low option, the route will be classified as 43J route, which will result in the carrier working 11 days during a pay period and being paid a salary based on 43 evaluated hours. Id. If the carrier elects the high option, the route is classified as a 46H route, meaning the carrier works 12 days during a pay period and the salary is based on 46 evaluated hours. Id. Thus, when a route falls into two possible classifications, the carrier has the option to work fewer day(s) with less pay, or work more day(s) with more pay. Id. ¶ 22. In the experience of the District Rural Coordinator, the majority of rural carriers prefer a K route (two relief days off) over an H (no relief days off) or J (one relief day off) route. Id. ¶ 24.
B. Plaintiff's Route
Plaintiff was selected as the carrier for Rural Route 8 on March 13, 2010. ECF No. 27-3 at 5 (Smith Decl. ¶ 13). At that time Rural Route 8 was classified as a 40K route, meaning that it was evaluated at 40 weekly hours with 2 relief days (10 workdays) during the pay period. ECF No. 27-2 at 5, ¶ 27. Following the 2010 National Count, Rural Route 8 was classified as a 41J route, meaning that it was evaluated at 41 hours with 1 relief day (11 workdays) per pay period. Id. ¶ 28. However, because the standard hours and minutes for the route fell into two classifications-J route and H route-plaintiff was able to elect the high option. Id. ¶¶ 15, 28. As a result of plaintiff's high option election, the route was classified as a 45H route, meaning that it was evaluated at 45 hours with no relief days (12 workdays) during the pay period. Id. ¶ 29. Plaintiff's yearly salary was set at $59, 973. Id.
Following the 2011 National Count, Route 8's standard hours and minutes was assessed at 45:32. ECF No. 27-3 at 5, ¶ 26; ECF No. 27-2 at 5, ¶ 30. Under the Table, this number of standard hours and minutes corresponded with two possible classifications, a 42J route and a 46H route. ECF No. 44 at 6, ¶ 27. Plaintiff elected the high option of a 46H route, meaning that his salary was based on 46 evaluated hours and he had no days off per pay period. Id. ¶ 28.
On March 24, 2012, the Rocklin Postmaster adjusted several rural routes due to two events: (1) Rural Route 16, which was vacant, was available for distribution of its territory to existing routes, and (2) territory from a highway contract route that had previously been assigned to a contractor became available to create one full-time route, Rural Route 21, and one auxiliary route, Rural Route 22. ECF No. 27-2 at 4, ¶ 17. Prior to the March 2012 adjustments, the Postmaster announced to carriers that if they wanted additional territory they must submit a written request for it and in response plaintiff informed the postmaster in writing that he wanted territory from Routes 16 and 20 added to his route. ECF No. 44 at 6, ¶ 30; Dev Dep. at 39.
As a result of the March 2012 adjustments, plaintiff's route gained additional territory worth 6:36 weekly standard hours and minutes, for a total of 52:08 standard hours and minutes. Schmidt Decl. ¶ 33-35. Under the Table, 52:08 standard hours and minutes falls only into one category, a K route with 43 assessed hours. ECF No. 44 at 7, ¶ 35. Because Route 8's evaluated hours dropped from 46 to 43, plaintiff's salary was reduced by $5, 808. Id. ¶ 36. However, the change from an H route to a K route resulted in plaintiff gaining 2 days off per pay period. Id.
III. Plaintiff's Motion to Strike the Declaration of Sandra Schmidt
Dev requests in his supplemental brief that the court strike the supplemental declaration of Sandra Schmidt, an Operations Program Support Specialist and District Rural Coordinator. ECF No. 47 at 2-7. Dev contends that the declaration contains statements that are either false or inconsistent with other evidence. In essence, he disputes the veracity of Ms. Schmidt's statements rather than the foundation for her testimony, which is not a basis for striking the declaration. Ms. Schmidt's declarations have an adequate foundation for her personal knowledge of the facts stated therein and her testimony addresses relevant facts. Plaintiff's disagreement with the truth of Schmidt's statements does not render her testimony inadmissible for purposes of summary judgment. Accordingly, plaintiff's motion to strike Schmidt's first supplemental declaration is denied.
IV. Motion for Summary Judgment
Summary judgment is appropriate when there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Summary judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant to the determination of the issues in the case, or in which there is insufficient evidence for a jury to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment motion asks whether the evidence presents a sufficient disagreement to require submission to a jury.
The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims or defenses. Celotex Cop. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e) advisory committee's note on 1963 amendments). Procedurally, under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving party meets its burden with a properly supported motion, the burden then shifts to the opposing party to present specific facts that show there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 248; Auvil v. CBS "60 Minutes", 67 F.3d 816, 819 (9th Cir. 1995).
A clear focus on where the burden of proof lies as to the factual issue in question is crucial to summary judgment procedures. Depending on which party bears that burden, the party seeking summary judgment does not necessarily need to submit any evidence of its own. When the opposing party would have the burden of proof on a dispositive issue at trial, the moving party need not produce evidence which negates the opponent's claim. See e.g., Lujan v. National Wildlife Fed'n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323-24 ("[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.'"). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, 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. See id. at 322. In such a circumstance, summary judgment must be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment... is satisfied." Id. at 323.
To defeat summary judgment the opposing party must establish a genuine dispute as to a material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at 248 ("Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."). Whether a factual dispute is material is determined by the substantive law applicable for the claim in question. Id. If the opposing party is unable to produce evidence sufficient to establish a required element of its claim that party fails in opposing summary judgment. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322.
Second, the dispute must be genuine. In determining whether a factual dispute is genuine the court must again focus on which party bears the burden of proof on the factual issue in question. Where the party opposing summary judgment would bear the burden of proof at trial on the factual issue in dispute, that party must produce evidence sufficient to support its factual claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Rather, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to demonstrate a genuine factual dispute the evidence relied on by the opposing party must be such that a fair-minded jury "could return a verdict for [him] on the evidence presented." Anderson, 477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial.
The court does not determine witness credibility. It believes the opposing party's evidence, and draws inferences most favorably for the opposing party. See id. at 249, 255; Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of "thin air, " and the proponent must adduce evidence of a factual predicate from which to draw inferences. American Int'l Group, Inc. v. American Int'l Bank, 926 F.2d 829, 836 (9th Cir. 1991) (Kozinski, J., dissenting) (citing Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at issue, summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). On the other hand, "[w]here 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 587 (citation omitted); Celotex, 477 U.S. at 323 (if the evidence presented and any reasonable inferences that might be drawn from it could not support a judgment in favor of the opposing party, there is no genuine issue). Thus, Rule 56 serves to screen cases lacking any genuine dispute over an issue that is determinative of the outcome of the case.
Dev asserts two claims for relief. The first is that the route adjustment and salary reduction was motivated by discrimination on account of race, color, national origin, and sex in violation of Title VII of the Civil Rights Act ("Title VII"). The second is that the route adjustment and salary reduction was motivated by retaliation for his having engaged in protected activity, in violation of Title VII. "In order to evaluate claims of intentional discrimination where intent itself is generally impossible to prove, courts apply a burden-shifting analysis. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973); Patterson v. McLean Credit Union, 491 U.S. 164, 186, (1989), superseded by statute on other grounds, Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071." Lindsey v. SLT Los Angeles, LLC, 447 F.3d 1138, 144 (9th Cir. 2006). To establish a prima facie case of disparate treatment under Title VII, plaintiff must introduce evidence that "give[s] rise to an inference of unlawful discrimination." Yartzoff v. Thomas, 809 F.2d 1371, 1374 (9th Cir. 1987) (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)). A plaintiff may do so by ...