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Anderson v. Brennan

United States District Court, D. Massachusetts

March 17, 2017

MEGAN J. BRENNAN, Postmaster General, Defendant.


          PATTI B. SARIS, Chief United States District Judge


         In 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”).

         The 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.

         After a 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 discrimination.

         FINDINGS OF FACT[1]

         I. Background

         A. Anderson's Personal Background

         Diping 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.

         B. The Postal Police

         The 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.

         The 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.

         In 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 captain.

         The 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.

         The 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.

         Motrucinski 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.

         The 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.

         The 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.

         The 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.

         The 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.

         A 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.

         PPOs in 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.

         Nationwide, 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.

         At all 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.

         There is no evidence that any PPO in the Boston GMF other than Anderson ever filed an Equal Employment Opportunity (“EEO”) complaint.[2]

         II. Timeline of Anderson's EEO Complaints and Discipline

         A. May 2011 EEO Activity and Seven-Day Suspension

         On May 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.

         Anderson 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.

         On May 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 redress conference.

         On May 24, 2011, then-Sergeant Ford approved Anderson's May 21, 2011 leave request by signing her leave request form.

         On May 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.

         Anderson 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.

         While 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.

         On June 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.

         On June 24, 2011, then-Sergeant Ford[3] issued Anderson a seven-day suspension for leaving her assigned post prior to being properly relieved or dismissed.[4] 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.

         At some 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.

         B. Early 2012 EEO Activity

         In 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.

         On March 29, 2012, Anderson filed a formal EEO complaint alleging race discrimination and retaliation by Captain Ford.[5]

         C. May 25, 2012 Letter of Warning

         On May 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 an incident.

         PPOs 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.

         Anderson did not file an EEO complaint about this Letter of Warning.

         D. August 29, 2012 Letter of Warning

         At the end of her shift on August 1, 2012, Anderson left her loaded service weapon in her personal locker in the female officers' changing room.

         When a 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.

         On 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.

         Anderson 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.

         E. September 2012 EEO Activity

         On 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.

         F. September 26, 2012 Fourteen-Day Suspension

         Since 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 ...

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