Anderson v. Brennan, 121418 FED1, 17-2162

Docket Nº:17-2162, 17-2170
Party Name:DIPING Y. ANDERSON, Plaintiff, Appellant/Cross-Appellee, v. MEGAN J. BRENNAN, Postmaster General, Defendant, Appellee/Cross-Appellant.
Attorney:Emily Smith-Lee, with whom Smith Lee Nebenzahl LLP was on brief, for Diping Anderson. Jennifer Utrecht, Appellate Staff, Civil Division, with whom Chad A. Readler, Acting Assistant Attorney General, Andrew E. Lelling, United States Attorney, Jason C. Weida, Assistant United States Attorney, and M...
Judge Panel:Before Lynch and Lipez, Circuit Judges, and Katzmann, Judge.
Case Date:December 14, 2018
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

DIPING Y. ANDERSON, Plaintiff, Appellant/Cross-Appellee,


MEGAN J. BRENNAN, Postmaster General, Defendant, Appellee/Cross-Appellant.

Nos. 17-2162, 17-2170

United States Court of Appeals, First Circuit

December 14, 2018


Emily Smith-Lee, with whom Smith Lee Nebenzahl LLP was on brief, for Diping Anderson.

Jennifer Utrecht, Appellate Staff, Civil Division, with whom Chad A. Readler, Acting Assistant Attorney General, Andrew E. Lelling, United States Attorney, Jason C. Weida, Assistant United States Attorney, and Marleigh D. Dover and Andrew Rhorbach, Appellate Staff, Civil Division, were on brief, for Megan Brennan.

Before Lynch and Lipez, Circuit Judges, and Katzmann, Judge. [*]


In the end in these cross-appeals after a bench trial, we leave the parties just where they were, as we see no error by the trial court.

Plaintiff Diping Anderson was a Postal Police Officer (PPO) employed by the U.S. Postal Service and terminated on September 9, 2013. Her Title VII lawsuit alleged that her termination as a PPO was unlawfully discriminatory on the basis of race and national origin, and independently was in retaliation for her having filed earlier Equal Employment Opportunity (EEO) complaints.

After a seven-day bench trial, the district court concluded that Anderson was not discriminated against but that the decision to terminate her employment, rather than impose lesser discipline, was in retaliation for her protected conduct -- the assertion of her EEO rights. The Postal Service appeals that ruling here and Anderson appeals from the remedy awarded -- back pay, but not reinstatement or front pay. We affirm the district court's rulings.


We take the facts as found by the district court, consistent with record support. Nevor v. Moneypenny Holdings, LLC, 842 F.3d 113, 116 (1st Cir. 2016).

A. Background

Diping Anderson was raised in Shanghai, China. She immigrated to the United States in 1990 and became a U.S. citizen in 1993. She began work for the Postal Service in 1995, first as a letter carrier, then as a window clerk. In 2000, she became a PPO. In her first sixteen years of employment with the Postal Service, from 1995 to 2011, Anderson was never disciplined.

In 2011, Anderson took time off for a workplace ankle injury. She reported back to work on May 1, 2011, with a doctor's note approving her return. Her supervisor, Captain Gerald Harrington, refused to allow Anderson to return to work, for a reason not specified in the record. On May 12, 2011, Anderson filed a request for EEO pre-complaint counseling, alleging race discrimination by Captain Harrington. Anderson returned to work later, at a time not specified in the record.

On May 23, 2011, an EEO dispute resolution specialist emailed Captain Harrington and then-Sergeant Peter Ford to inform them of Anderson's EEO filing. The specialist asked to schedule a redress conference.

On May 21, 2011, Anderson had been assigned to check the identification of people entering the employee entrance of the Boston General Mail Facility. Anderson got a call informing her that her mother had been admitted to a hospital, so she left in the middle of her shift. She did not get prior approval for this departure, but she filled out an emergency leave request form and left it on the duty sergeant's desk. Then-Sergeant Ford approved this emergency leave request on May 24, 2011.

Anderson reported to work the next day, May 25, 2011, to find a broken and unstable stool in place of her normal chair, and attempted to borrow a different chair from a nearby office. Then-Sergeant Ford told her, "No. This chair is not authorized."

Anderson brought the matter to Captain Harrington. She told Harrington that she could not complete her job assignment without a standard-size chair because of her ankle injury. She added, "I cannot get on the [stool]. Even if I get on, I have a hard time getting off." Harrington responded, "If you don't like it, go home." There is no evidence that he had treated others similarly. Anderson said that she would leave, that she wanted to be put back on workers' compensation status, and that she would come back to work when the broken stool was replaced. Anderson did not hear back from Captain Harrington.

Anderson did not report to work on May 26, 2011. Then-Sergeant Ford called to ask why she was absent. Anderson said that Captain Harrington had told her to go home. Ford told Anderson that he would consider her to be on sick leave.

Later that day, Ford changed the status of Anderson's May 21 leave request (from when Anderson's mother was in the hospital) from approved to "AWOL" (Away Without Leave). A note on the leave request form said that Anderson's leave status was "[c]hanged to AWOL per Capt. H[arrington]." The Postal Service offered no evidence which explained Captain Harrington's decision to reverse Ford's prior approval of Anderson's leave.

On June 15, 2011, Anderson attended an EEO redress conference with Captain Harrington, then-Sergeant Ford, and an EEO mediator, in response to Anderson's May 12 EEO request for pre-complaint counseling. Anderson testified that 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 issued Anderson a seven-day suspension for having left her assigned post on May 21, 25, and 26, 2011 (when no stool was provided), before being properly relieved or dismissed. This was the first discipline Anderson received as a Postal Service employee.

Around this same time, a different PPO, Martha Barris, had several conversations with Captain Harrington in which Harrington said that he found Anderson's EEO complaints "distasteful" and that he did not understand why Anderson was filing them.

Anderson later filed a complaint with the EEOC about the seven-day suspension, asserting that the suspension was racially discriminatory. An EEOC Administrative Judge dismissed Anderson's complaint in September 2012 because Anderson had failed to identify any similarly situated comparator outside her protected group who was treated more favorably. The Postal Service issued a Notice of Final Action in December 2012 adopting the Administrative Judge's decision. Anderson did not appeal this decision.

In early 2012, Anderson filed several requests for pre-complaint EEO counseling, alleging incidents of race discrimination and retaliation that had taken place on several dates from December 2011 to February 2012. The forms listed Captain Ford as a responsible official, and then-Sergeant Joseph Motrucinski was also listed on the last of the request forms.

On March 29, 2012, Anderson filed a formal EEO complaint alleging race discrimination and retaliation by Captain Ford.1Anderson voluntarily withdrew the complaint in its entirety in October 2012. The record does not reveal the reason for this withdrawal.

Later in 2012, Anderson received two Letters of Warning. The first stated it came from Anderson's failure to carry her firearm during the performance of her official duties. Anderson did not file an EEO complaint in response to that first Letter.

The second Letter, issued on August 29, 2012, stated it came from Anderson's failure to properly protect and secure her weapon. On September 11, 2012, Anderson filed another request for EEO pre-complaint counseling, asserting that the second Letter of Warning represented unlawful retaliation for her prior EEO activity. Anderson named Captain Ford and then-Sergeant Motrucinski as responsible officials.

About two weeks later, on September 26, 2012, Anderson received a fourteen-day suspension.2 There were two bases stated for this discipline. The first went back to July 2012, when then-Sergeant Motrucinski told Anderson that she should not store her weapon locker key inside the weapon locker itself, because doing so was potentially dangerous (an unauthorized person might gain access to the firearms). Anderson stopped storing her key in this way. Even so, Sergeant Gregg McGee told then-Sergeant Motrucinski that, on four separate occasions after, he found Anderson's weapon locker key stored in her weapon locker. McGee, however, admitted that he did not confront Anderson on any of those four occasions, that he did not tell any of her supervisors, and that he took no pictures of the alleged infractions, as was his normal practice. The district court found McGee's testimony "unlikely."3 Anderson v. Brennan, No. CV 14-13380-PBS, 2017 WL 1032502, at *6 (D. Mass. Mar. 16, 2017), on reconsideration in part, 254 F.Supp.3d 253 (D. Mass. 2017).


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