United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DENISE J. CASPER, District Judge.
Plaintiff Cheryl Laurie ("Laurie") has filed this lawsuit against Defendants Megan J. Brennan,  Postmaster General of the United States Postal Services, and the United States Postal Service, Northeast Area Agency (collectively, the "Defendants") alleging harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. D. 1. Defendants have moved for summary judgment. D. 24. For the reasons stated below, the Court ALLOWS the motion.
II. Standard of Review
The Court grants summary judgment where there is no genuine dispute as to any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). "A fact is material if it carries with it the potential to affect the outcome of the suit under applicable law." Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). The movant bears the burden of demonstrating the absence of a genuine issue of material fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see Celotex v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets its burden, the non-moving party may not rest on the allegations or denials in her pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but "must, with respect to each issue on which she would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in her favor." Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). "As a general rule, that requires the production of evidence that is significant[ly] probative.'" Id . (quoting Anderson, 477 U.S. at 249) (alteration in original). The Court "view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor." Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).
III. Factual Background
Unless otherwise indicated, the following facts are as described in Defendants' statement of material facts, D. 25 at 2-5. Laurie did not file a statement of material facts or respond to Defendants' statement of material facts.
Laurie was employed as a mail processing clerk at the USPS' Brockton, Massachusetts Post Office before being terminated on December 7, 2009. D. 25-2 at 2; see also D. 25 ¶ 24. Prior to the events leading to this action, Laurie filed three Equal Employment Opportunity ("EEO") complaints against the post office: one dated May 10, 2002, a second dated September 25, 2003 and the last dated June 26, 2009. D. 25 ¶ 1. When she filed these prior EEO complaints, Laurie was working the "Tour Three (late afternoon shift)" at the post office. Id . ¶ 2. At the time of the events giving rise to this action, however, Laurie was working "Tour One" and none of her supervisors had been named as discriminating officials in the prior actions. Id . Her Tour One supervisors at the post office were Alan Kesack ("Kesack") and Kevin W. Turner ("Turner"). Id . ¶¶ 3, 5. Kesack and Turner deny knowing about Laurie's prior EEO activity before her December 2009 termination. Id.
A. Laurie's Allegations of a Retaliatory and Hostile Work Environment
On November 8, 2009, Turner gave all employees with a 20:50 start time on Tour One verbal break schedules to facilitate coverage of breaks and lunches. Id . ¶¶ 6, 7. Laurie contends that she was singled out as the only employee given a schedule with specific break times. D. 25-1 at 1. Then, on November 11, 2009, while Laurie was training for a new position as an Automation Clerk, Kesack allegedly told Plaintiff that she was "not gonna last on Tour 1, " and walked away. D. 25 ¶¶ 8-9.
Later that month, at a Pre-Disciplinary Interview on November 17, 2009, Turner asked Laurie about the nature of her absences and whether she was using prescription medications. Id . ¶¶ 10-13; see also D. 25-1 at 25-26. The question regarding prescription medication was one of several questions on the Pre-Disciplinary Interview form used by the Brockton Plant to determine whether employee absences are Family and Medical Leave Act ("FMLA") related. D. 25 ¶¶ 11, 12; D. 25-1 at 25-26.
On December 2, 2009, as Laurie was "punching in from lunch" she was informed that Kesack had been paging her and wanted to see her in his office. D. 25 ¶ 14. Kesack explained that he had been looking for her and accused her of being "AWOL." Id . ¶ 15. Kesack did not, however, formally record Laurie as being AWOL in her employee record. Id . ¶ 16. The next day, on December 3, 2009, Kesack found Laurie away from her desk again. Id . ¶¶ 18, 19. After confirming that she was not on her lunch break, but had just stepped out "for some air, " he informed her that, moving forward, she had to ask permission before leaving her work area. Id . ¶¶ 18-21. Laurie contends that during this conversation Kesack called her a liar "four times." D. 26 at 4.
Tuner subsequently issued a "Notice of Removal" to Laurie on December 7, 2009. D. 25 ¶ 24. The notice cited twenty instances between September 17, 2009 and November 11, 2009 when Laurie either had been late or had used unscheduled leave. Id . The notice also referenced prior disciplinary actions taken against Laurie, including two prior 2009 suspensions for failure to be in regular attendance. Id . ¶ 25. The "Notice of Removal" was thereafter arbitrated pursuant to a collective bargaining ...