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Anderson v. Brennan

United States District Court, D. Massachusetts

June 1, 2017

DIPING Y. ANDERSON, Plaintiff,
v.
MEGAN J. BRENNAN, Postmaster General, Defendant.

          MEMORANDUM AND ORDER

          Patti B. Saris Chief United States District Judge

         Following a seven-day bench trial, the Court concluded that plaintiff Diping Anderson's termination from her employment as a Postal Police Officer ("PPO") was retaliatory in violation of Title VII. The Court issued its findings of fact and conclusions of law on March 16, 2017. Anderson v. Brennan, No. CV 14-13380-PBS, 2017 WL 1032502 (D. Mass. Mar. 16, 2017). The Court assumes familiarity with that decision. Judgment was entered on March 17, 2017. The parties subsequently filed four motions seeking reconsideration of both liability and remedies.

         The Court's finding of liability stands, but the Court finds that some reconsideration of the remedies is appropriate. The Plaintiff's Motion to Alter Judgment (Docket No. 125) is ALLOWED in part and DENIED in part. The Plaintiff's Motion for Leave to File Untimely Motion for Attorney's Fees (Docket No. 126) is ALLOWED. The Plaintiff's Motion for Assessment of Pre-Judgment Interest (Docket No. 127) is ALLOWED in part and DENIED in part. The Defendant's Motion for Reconsideration (Docket No. 128) is ALLOWED in part and DENIED in part.

         BACKGROUND

         In September 2013, Anderson was removed from service as a PPO for failure to perform her duties while assigned to guard the Brockton postal facility in the aftermath of a building fire. Anderson's termination notice stated that, in addition to her misconduct at Brockton, three prior disciplinary incidents on Anderson's record “ha[d] been considered in arriving at this decision”: (1) her June 24, 2011 seven-day suspension; (2) her August 29, 2012 Letter of Warning; and (3) her September 26, 2012 fourteen-day suspension.

         Anderson brought this suit against the Postal Service claiming that her removal was unlawfully discriminatory and retaliatory, in violation of Title VII. At trial, Anderson presented evidence not only on the circumstances of her removal but also on the circumstances underlying the three prior disciplinary incidents cited in her notice of removal. At the close of evidence, the Court directed the parties to address in their closing arguments what impact there should be on the verdict if the Court found some of the prior disciplinary incidents to be discriminatory or retaliatory.

         In closing arguments, the parties clarified that the only remedies sought in this case were those stemming from the removal. The parties were in agreement that Anderson could not timely seek remedies for any of the prior disciplinary incidents. However, Anderson argued that the circumstances underlying the prior disciplinary incidents were relevant to assessing whether the removal decision was discriminatory or retaliatory. The Court signaled to the Postal Service that the Court would only consider remedies based on the removal decision but that the Court was “very much going to be considering the progression [of discipline] to see whether the notice of a removal was appropriate.” The Court asked the Postal Service to answer, in its supplemental proposed findings of fact and conclusions of law, the following question: “If I find that one of them [the prior disciplinary actions], or more, were retaliatory, and if I find they were a substantial factor in the decision for removal, what do I do?” The Postal Service minimally addressed the question in its briefing: “That decision [by the administrative judge upholding the seven-day suspension] became final when Plaintiff neither appealed that decision nor brought an action in federal court within the time permitted to do so. Any consideration of it now is precluded as a matter of law.” Docket No. 121 at 7. For that proposition, the Postal Service cited Velazquez-Ortiz v. Vilsack, 657 F.3d 64, 71 (1st Cir. 2011), Martinez v. Potter, 347 F.3d 1208, 1211 (10th Cir. 2003), and Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).

         On March 16, 2017, the Court issued its findings of fact and conclusions of law (“bench trial order”). The Court concluded that Anderson's removal was retaliatory. The Court awarded back pay and emotional distress damages. Anderson, 2017 WL 1032502, at *16-19. The Court also ordered reinstatement of Anderson not as a PPO, but in the position she held in the Postal Service prior to becoming a PPO: a full-time window clerk. Id. at *17.

         DISCUSSION

          I. Legal Standard for Altering or Amending Judgment

         Federal Rule of Procedure 59(e) provides for the filing of a motion to alter or amend a judgment no later than twenty-eight days after the entry of judgment. “Rule 59(e) itself does not state the grounds on which relief under the rule may be granted, and the district courts have considerable discretion in deciding whether to grant or deny a motion to alter or amend under Rule 59(e).” Venegas-Hernandez v. Sonolux Records, 370 F.3d 183, 190 (1st Cir. 2004). The case law has articulated some circumstances in which Rule 59(e) relief is appropriate. Id. Among those circumstances is when “the movant shows a manifest error of law.” Kansky v. Coca-Cola Bottling Co. of New Eng., 492 F.3d 54, 60 (1st Cir. 2007).

         II. Consideration of Prior Disciplinary Incidents

         The Postal Service argues that the Court made an error of law by considering the retaliatory nature of prior disciplinary incidents in finding liability for retaliatory removal. In its bench trial order, the Court recognized that Anderson's three prior disciplinary incidents were not directly actionable because they were time-barred and unexhausted. Anderson could not revive and seek a remedy for past unlawful prior disciplinary incidents by bundling them with the more recent removal, for which her Title VII claim was timely. See Nat'l R.R. Passenger Corp., 536 U.S. at 113 (“[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.”); see also Shervin v. Partners Healthcare Sys., Inc., 804 F.3d 23, 48 (1st Cir. 2015).

         However, the Court held that because of the Postal Service's explicit reliance on prior discipline in its progressive discipline system, consideration of the prior disciplinary incidents was appropriate even if Anderson was only seeking a remedy for unlawful removal. To recover for retaliatory removal, Anderson must show that she would not have been removed but for engagement in protected activity. One part of the Court's reasoning was that Anderson could meet that causation requirement by showing that she would not have been removed but for her prior disciplinary incidents, which themselves would not have been imposed but for engagement in protected activity.

         The Postal Service now cites two cases to attack the Court's reasoning. The main case is United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977). The plaintiff in that case was Evans, a female flight attendant who had been forced to resign from her position in 1968 because of a policy by United that prohibited female flight attendants from being married. Evans did not file a timely challenge to the policy, although the policy was later found to violate Title VII in a case to which Evans was not a party. Evans was rehired by United in 1972. In Evans, Evans recognized that it was too late to obtain relief for unlawfully being forced to resign in 1968 but she claimed that United's refusal to credit her with seniority for her employment prior to 1972 gave present effect to the past unlawful practice. The Court held that Evans could not recover under that theory:

Respondent is correct in pointing out that the seniority system gives present effect to a past act of discrimination. But United was entitled to treat that past act as lawful after respondent failed to file a charge of discrimination within the 90 days then allowed by [42 U.S.C. § 2000e-5(e)]. A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences.
Respondent emphasizes the fact that she has alleged a continuing violation. United's seniority system does indeed have a continuing impact on her pay and fringe benefits. But the emphasis should not be placed on mere continuity; the ...

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