United States District Court, D. Massachusetts
DIPING Y. ANDERSON, Plaintiff,
MEGAN J. BRENNAN, Postmaster General, Defendant.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
B. SARIS, Chief United States District Judge
2013, Diping Anderson was terminated from her employment as a
U.S. Postal Police Officer (“PPO”). Anderson
claims that the Postal Service unlawfully terminated her on
the basis of her Chinese descent and in retaliation for her
filing multiple complaints of race discrimination with the
Equal Employment Opportunity Commission (“EEOC”).
Postal Service argues that Anderson's termination was not
discriminatory or retaliatory and that she was justifiably
terminated for repeated workplace misconduct. Anderson
responds that her workplace misconduct was a pretextual basis
for her termination because she received harsher punishment
than similarly situated white PPOs for the same misconduct.
seven-day bench trial, the Court finds insufficient evidence
that Anderson's termination was based on race
discrimination. However, Anderson met her burden to show that
she was terminated in retaliation for filing complaints of
Anderson's Personal Background
Anderson was raised in Shanghai, China and received a
bachelor's degree from the Shanghai Institute of Tourism.
Anderson immigrated to the United States in 1990 and became a
U.S. citizen in 1993. She first began working for the Postal
Service in 1995, first as a letter carrier then as a window
clerk. In 2000, Anderson became a PPO at the Boston General
Mail Facility (“GMF”). Prior to 2011, Anderson
received no discipline as a Postal Service employee.
The Postal Police
Postal Police are a uniformed police force whose
responsibilities include providing security for postal
facilities and employees, protecting mail while in transit,
and preventing the use of mails for illegitimate purposes.
role of the Postal Police has evolved somewhat over time.
Previously, PPOs were mainly responsible for security watches
at entry posts and guard posts. Beginning around 2001, the
Postal Police began to contract with private security to
handle some of the security work previously carried out by
PPOs. A greater portion of PPO work became street patrol and
emergency response in marked cruisers. As a result, the work
of PPOs became more challenging.
2000, there were forty PPOs, four sergeants, and one captain
in the Boston Postal Police. By 2013, the Boston Postal
Police had shrunk to eighteen PPOs, three sergeants, and one
command structure of the Postal Police is as follows: PPOs
are assigned to one of three shifts, known as Tour One (10:00
PM to 6:30 AM), Tour Two (6:00 AM to 2:30 PM), and Tour Three
(2:00 PM to 10:30 PM). PPOs are generally assigned to a
single shift, although they may also work overtime on another
shift. There is one sergeant in charge of each shift. At
times, a PPO from the acting sergeant list may fill in to
supervise a shift, but acting sergeants have limited
disciplinary authority compared to sergeants.
sergeants report to the captain. There is one captain who
oversees all of the PPOs at the Boston GMF. Gerald Harrington
was captain from some unknown time to 2011. Peter Ford was
captain from about 2011 to 2013. Joseph Motrucinski was
promoted from sergeant to captain in July 2013 and was
captain at the time of the trial.
was one of the sergeants who supervised Anderson, and he
continued to supervise Anderson when he became the captain.
Motrucinski was a sergeant from the end of 2011 to his
promotion to captain in July 2013. Prior to 2011, Motrucinski
was a PPO.
captain reports to an Assistant Inspector in Charge. There
are two Assistant Inspectors in Charge, and one of those two
typically oversees the entire Boston PPO service. The two
Assistant Inspectors in Charge report to the Inspector in
Charge. Kevin Niland was Assistant Inspector in Charge
overseeing PPO operations from 2011 to 2012 and Inspector in
Charge from 2012 to 2014.
Inspector in Charge also oversees postal inspectors. Postal
inspectors investigate any crime involving the U.S. mail.
Postal inspectors are not uniformed, although at times they
may wear jackets identifying them as postal inspectors.
Postal inspectors report to team leaders, who in turn report
to an Assistant Inspector in Charge, who in turn reports to
the Inspector in Charge.
Postal Service uses a progressive discipline system.
Discipline builds off previous instances of discipline,
typically beginning with more informal discipline and
building up to more formal discipline as violations continue.
However, a first-time offense, if severe, need not be
addressed with the lowest level of discipline.
levels of discipline in the Postal Service's progressive
discipline system are the following, ranging from least to
most severe: (1) informal counseling, (2) formal counseling,
(3) Letter of Warning, (4) suspension, and (5) termination.
Neither informal nor formal counseling is recorded in a
PPO's personnel file, although the sergeant that
administered the counseling may keep notes in the
sergeant's file cabinet. Letters of Warning are recorded
in a PPO's personnel file, but they can be expunged if a
PPO receives no further discipline for two years. A
fourteen-day suspension is usually the most severe penalty
short of termination.
sergeant does not need approval from the captain to issue a
Letter of Warning, although the sergeant would inform the
captain. Other than oversight by the same captain, there is
no formal process by which sergeants communicate with
sergeants of other shifts to ensure that discipline is
consistent. To issue a suspension, a sergeant needs the
review and concurrence of the captain. To remove a PPO, the
captain must obtain the concurrence of the Assistant
Inspector in Charge. Sergeants and captains in the Postal
Police play no part in the discipline of postal inspectors.
practice rarely receive any discipline greater than
counseling. Motrucinski has only issued two Letters of
Warning since 2011, when he became a sergeant. Both Letters
of Warning were issued to Anderson. Motrucinski has only
issued one fourteen-day suspension, and that suspension was
issued to Anderson. Nor has anybody else ever been removed
from the Boston PPO during the period of Motrucinski's
employment, which is 1999 to present. Inspector-in-Charge
Niland never removed any other employee from the entire
seven-state region he oversaw.
about five or six PPOs were terminated in the past three
years. Other reasons for termination were misconduct relating
to a lost mail auction, plagiarism and falsifying of reports,
and sleeping on duty. The PPO terminated for sleeping on duty
was terminated pursuant to a last-chance agreement, in which
a series of infractions led to a negotiated agreement between
the PPO and the Postal Service that any further infraction
would lead to termination.
relevant times, the Boston PPO workforce was nondiverse.
Other than Anderson herself, there were no black, Hispanic,
or Asian PPOs at the Boston GMF during Anderson's
thirteen years as a PPO.
is no evidence that any PPO in the Boston GMF other than
Anderson ever filed an Equal Employment Opportunity
Timeline of Anderson's EEO Complaints and
May 2011 EEO Activity and Seven-Day Suspension
1, 2011, Anderson reported to work following a period of time
off for a workplace injury. She had a doctor's note
approving her return to work, but Captain Harrington refused
to allow her to return to work. On May 12, 2011, Anderson
filed a request for EEO pre-complaint counseling, alleging
race discrimination by Captain Harrington.
returned to work sometime thereafter. On May 21, 2011,
Anderson was assigned to check the identification of persons
entering the GMF at the employee entrance. Anderson left in
the middle of her shift after getting a call from the
hospital where her mother was admitted. Anderson did not
receive prior approval but she filled out an emergency leave
request form and left it on the duty sergeant's desk.
23, 2011, an EEO dispute resolution specialist sent an email
to Captain Harrington and then-Sergeant Ford informing them
of Anderson's EEO filing and requesting to schedule a
24, 2011, then-Sergeant Ford approved Anderson's May 21,
2011 leave request by signing her leave request form.
25, 2011, Anderson reported to work to find that her normal
chair was gone and a broken and unstable stool had been left
in its place. When Anderson went to borrow a different chair
from a nearby office, then-Sergeant Ford said: “No.
This chair is not authorized.” Anderson told Captain
Harrington: “I cannot complete my job assignment
without a standard size chair because I have an ankle injury.
I cannot get on the high chair. Even if I get on, I have a
hard time getting off.” Captain Harrington responded:
“If you don't like it, go home.” Anderson
told Captain Harrington that she would leave, that she wanted
to be put back on workers' compensation status, and that
she would return when the broken chair was replaced.
did not report to work on May 26, 2011 because she never
heard from Captain Harrington that the broken chair had been
replaced. When then-Sergeant Ford called to ask why she did
not report to work, Anderson told him that Captain Harrington
had told her to go home. Then-Sergeant Ford told Anderson
that he would consider her to be on sick leave.
Anderson was absent from work on May 26, 2011, then-Sergeant
Ford changed her May 21, 2011 leave status to
“AWOL” (Away Without Leave). The May 26, 2011
document contained the notation “Changed to AWOL per
Capt. H, ” which Anderson understood to be referring to
a directive by Captain Harrington.
15, 2011, Anderson attended an EEO redress conference with
Captain Harrington, then-Sergeant Ford, and an EEO mediator.
According to Anderson, Captain Harrington and then-Sergeant
Ford refused to discuss her allegations of discrimination and
told her to file a formal EEO complaint.
24, 2011, then-Sergeant Ford issued Anderson a seven-day
suspension for leaving her assigned post prior to being
properly relieved or dismissed. The notice of suspension charged
Anderson with leaving her post without permission on May 21,
25, and 26, 2011. According to Anderson, this was the first
discipline she ever received as a Postal Service employee.
point around this time period, PPO Martha Barris had several
conversations with Captain Harrington in which Captain
Harrington said that he found the EEO complaints distasteful
and that he did not understand why Anderson was filing them
because he was not discriminating against her.
Early 2012 EEO Activity
early 2012, Anderson filed a number of requests for
pre-complaint EEO counseling, alleging various instances of
race discrimination and retaliation that took place on
December 16, 21, 22, and 23, 2011; January 11, 2012; and
February 15, 16, and 22, 2012. The forms listed Captain Ford
as a responsible official. Then-Sergeant Motrucinski was also
named in the last of the forms.
March 29, 2012, Anderson filed a formal EEO complaint
alleging race discrimination and retaliation by Captain
May 25, 2012 Letter of Warning
23, 2012, Anderson reported to Fort Devens in a marked police
cruiser for a semi-annual firearm qualification test but
forgot to bring her service weapon. On May 25, 2012,
then-Sergeant Motrucinski issued a Letter of Warning to
Anderson for failure to carry her firearm during the
performance of her official duties. The Letter stated that in
addition to being unprepared, Anderson created a danger by
traveling in a cruiser without her service weapon because she
would not have been able to properly respond if she came
across an incident while en route or if she was dispatched to
are required to pass the firearm qualification test with
their own weapon. If a PPO does not qualify, he or she is
placed on nonduty status and cannot work. Motrucinski was the
firearm instructor conducting the exam that day and he could
have sent Anderson home for failing to bring her weapon.
However, because the firing range was not available to the
Postal Police for the rest of the year due to unrelated
circumstances, then-Sergeant Motrucinski made an exception
and allowed Anderson to qualify with his firearm.
did not file an EEO complaint about this Letter of Warning.
August 29, 2012 Letter of Warning
end of her shift on August 1, 2012, Anderson left her loaded
service weapon in her personal locker in the female
officers' changing room.
PPO finishes his or her shift, the PPO is supposed to lock
his or her unloaded weapon in a weapon locker in the weapon
room. Sergeants routinely check the weapon lockers to verify
that weapons have been properly stored. On the day in
question, Sergeant Gregg McGee discovered Anderson's
weapon missing during his routine weapon locker check.
Sergeant McGee cut the lock on Anderson's personal locker
with Captain Ford's permission and found Anderson's
service weapon. Sergeant McGee took pictures of the weapon in
the personal locker and sent them to then-Sergeant
Motrucinski and Captain Ford.
August 29, 2012, then-Sergeant Motrucinski issued Anderson a
Letter of Warning for failure to properly protect and secure
her service weapon upon the completion of her duties.
admits that she left her weapon in her personal locker that
day when the proper procedure would have been to store it in
the weapon locker in the weapon room.
September 2012 EEO Activity
September 11, 2012, Anderson filed another request for EEO
pre-complaint counseling, alleging that the August 29, 2012
Letter of Warning was unlawful retaliation for her prior EEO
activity. Anderson named Captain Ford and then-Sergeant
Motrucinski as responsible officials.
September 26, 2012 Fourteen-Day Suspension
the beginning of her time as a PPO, Anderson stored her
weapon locker key inside the weapon locker itself, alongside
the weapon. When Anderson returned to the weapon locker at
the beginning of her next shift, she would extract the weapon