Ray v. Henderson

• Decision Date: 07 July 2000
• Docket Number: DEFENDANT-APPELLEE,No. 99-15289,PLAINTIFF-APPELLANT,99-15289
• Citation: 217 F.3d 1234
• Parties: (9th Cir. 2000) WILLIAM J. RAY,, v. WILLIAM J. HENDERSON, POSTMASTER GENERAL,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1234

217 F.3d 1234 (9th Cir. 2000)

WILLIAM J. RAY, PLAINTIFF-APPELLANT, v. WILLIAM J. HENDERSON, POSTMASTER GENERAL, DEFENDANT-APPELLEE.

No. 99-15289

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted April 26, 2000

July 7, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Erik A. Rapoport, San Francisco, California, for the plaintiff-appellant.

Debora G. Luther, Assistant United States Attorney, Sacramento, California, for the defendant-appellee.

Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, District Judge, Presiding D.C. No. CV-97-01776-GEB

Before: Betty B. Fletcher, Arthur L. Alarcon, and Michael Daly Hawkins

B. Fletcher, Circuit Judge

In this case we are called upon to determine whether William J. Ray suffered adverse employment actions after complaining of harassment at his workplace. We hold that in our circuit an adverse employment action is adverse treatment that is reasonably likely to deter employees from engaging in protected activity. Under this standard, we conclude that Ray suffered cognizable adverse employment actions when his employer, in retaliation for Ray's complaints concerning management's treatment of women employees, eliminated employee meetings, eliminated its flexible starting time policy, instituted a "lockdown" of the workplace, and cut Ray's salary. We also hold that Ray has a cognizable claim for retaliation based on his supervisors' creation of a hostile work environment.

I.

William Ray has been a rural postal carrier in Willits, California for over 28 years. In addition to Ray, there are four other rural carriers. Ray's immediate supervisor at the Willits Post Office is Dale Briggs, and the Postmaster is Dan Carey.

Prior to the events at issue in this case, the rural carriers had a flexible start-time. Ray and the other carriers generally arrived at work between 6:00 A.M. and 7:00 A.M, and they went out on their delivery routes at 9:45 A.M. Because their salaries were fixed, arriving early did not affect their incomes, however it did give them time to sort mail and do other administrative tasks before leaving on their routes.

In 1994, Ray and his co-workers became concerned about gender bias and harassment at the post office. Several female employees had apparently sought medical advice and transfers because of harassment by Briggs. The subject of the harassment of women first came up at a March 30, 1994 Employee Involvement meeting¹. At that meeting, a female janitorial employee raised her hand and asked to be recognized to speak. Postmaster Carey "immediately wheeled around, swinging his arm, yelled and pointed. He ordered [the employee] out of the meeting." After she had left, Ray spoke up. He stated his objections to the treatment of women at the post office. Postmaster Carey vehemently denied the charges, and berated Ray as a "liar."

Ray next made a complaint about the treatment of women at an April 7, 1994 Rural Carriers Employee Involvement meeting. Carey again angrily denied the charges. After these complaints failed to spur any change, Ray and two of his co-workers wrote a letter complaining of the harassment of women to Lito Sajones, Carey's supervisor.

The letter prompted a meeting, held in the nearby Ukiah Post Office on June 15, 1994, regarding the alleged harassment. At that meeting, Carey stated his displeasure that Ray had written the complaint to his supervisor. He said that, because of the letter, "I may have to change my whole approach to management. I've been a manager for eighteen years. I have left you alone. Its called self-management. I may have to change that."

Carey did not effectuate that threat until February 1995. However, in the meantime Briggs and Carey publicly berated Ray on a regular basis. For example, Briggs yelled at Ray at a staff meeting on November 10, 1994, after Ray had made a suggestion for improving efficiency at the office. On December 24, 1994, Postmaster Carey called Ray a "rabble rouser" and a "troublemaker," and said he would cancel all future Employee Involvement meetings at the post office, apparently to avoid further complaints about gender bias and harassment. He also stated that "if Bill Ray has so much time for talking, maybe he is coming in [to the office ] too early." This was another veiled threat to end the "self management" policy under which workers set their own starting and finishing times.

One week later, Ray met with Briggs and Carey to discuss employees' rights to communicate with other employees. Ray fled the meeting after Carey yelled at him and made physically threatening gestures toward him.

One month later, on January 31, 1995, Ray and the union shop steward, Bob Daitoku, met with Carey to discuss Carey's recent decision to cancel the Employee Involvement meetings. Carey stated that "We're not having any E.I. program as long as you're writing letters over my head."

Postmaster Carey made good on his threat to eliminate both the Employee Involvement program and the "self-management " policy soon after the January meeting. In February 1995, Briggs announced that all rural carriers were required to come to work at a fixed starting time: 7:00 A.M. When the fixed start time was instituted, the postal carriers found themselves with less time to sort the mail prior to going out on their routes. Ray states that he had the longest route and the largest amount of mail to sort; the 7:00 A.M. start time forced him to work at top speed, sorting 60 letters per minute and 40 magazines per minute, even though the Rural Carrier Handbook states that the standard allowable rate for sorting mail is 16 letters per minute and 8 magazines per minute. The 7:00 A.M. start time also forced Ray to work later in the afternoon so that he could finish some of the administrative tasks that he had previously done in the morning.

In May 1995, Ray's wife became extremely ill. Ray wanted to leave work earlier in order to take care of her, and he therefore requested to come to work half an hour early -- at 6:30 A.M. While Briggs granted the request, he repeatedly threatened to retract the early start time.

Ray continued to be the target of Briggs and Carey's hostility during the summer and fall of 1995. On one occasion, after Ray made a suggestion at an office meeting, Briggs yelled at him, telling him to "shut up" and "that's a direct order."

Ray was twice falsely charged with misconduct. He was accused, and then cleared, of opening a package. He was later accused, and then cleared, of knocking down a mailbox on his route. Also, a series of pranks were played on Ray during this time. For example, someone left a dog biscuit near Ray's work space. On another occasion, Ray found a ball bearing in his work space.

On October 13, 1995, Ray filed a request for counseling with the EEOC, complaining of a hostile work environment. He alleged that the management at the Willits Post office employed a "singling-out-and-punish method of controlling and frightening and eventually demoralizing the workers." In his EEOC request he also stated that:

It is because of [management's] conviction they are doing the right thing that makes the situation so troubling and actionable at law. The Joint Statement on Violence and Behavior In the Workplace clearly outlaws their practices and a continuation of their pattern will be dire. Four people have said to me the SPO should be killed. They were speaking out of frustration and pain. But this should show that the situation is not isolated to my complaint.

On November 7, 1995, Ray took stress leave from work. On November 22, while Ray was still out on stress leave, Postmaster Carey received a copy of the EEO complaint. He immediately instituted a procedure called "lockdown" at the Willits Post Office.² During lockdown, the doors to the loading docks were kept locked at all times. Every time Ray (or another postal carrier) needed to load his vehicle with mail, he would have to unlock the doors, push his mail cart out onto the loading dock, go back inside and lock the doors, and then exit through a side door to take the mail from the cart into his car. To get back inside the post office, he would have to ring a bell and wait for another postal employee to open the door. The lockdown procedure turned a process that had taken seconds into one taking several minutes.

Postmaster Carey states that he instituted the lockdown because Ray's complaint to the EEO contained a death threat. Briggs ordered Ray not to come back to the office, and called in a Postal Inspector to determine whether the EEO letter constituted a threat. The Inspector, Robert Dortch, conducted an investigation into the matter. He determined that no death threat had been made, and Ray was allowed to return to work. Nonetheless, even after the inspector had cleared Ray of wrongdoing, a temporary supervisor, Bill Wilber, announced to the staff that Ray had made a death threat. The lockdown at the Willits Post Office continued until February 1996, when it was discontinued without explanation.

Also in response to the supposed death threat, on December 1, 1995 Postmaster Carey canceled Ray's 6:30 start time, requiring him to arrive at work at 7:00 A.M. Carey stated that he did not want Ray coming to work early because he "had to be supervised at all times."

Ray wrote additional EEO complaint letters on December 13, 1995, January 15 and 21, 1996, and April 1, 1996. In March 1996, Ray's postal route was reduced by 90 boxes, causing him to lose approximately $3,000 from his annual salary. Although all the postal carriers suffered cuts in their routes, Ray's route was cut the most.

Ray's EEO complaint was heard by an Administrative Law Judge (ALJ) on May 28, 1997. The ALJ found that the United States Postal Service (USPS) had retaliated against Ray after he filed his written EEO counseling request, but rejected Ray's remaining claims....