Ballard v. Donahoe
| Decision Date | 27 March 2014 |
| Docket Number | No. 2:11-cv-2576 JAM AC PS,2:11-cv-2576 JAM AC PS |
| Court | U.S. District Court — Eastern District of California |
| Parties | KARAMEN BALLARD, Plaintiff, v. PATRICK R. DONAHOE, POSTMASTER GENERAL, Defendant. |
Pending before the court is defendant Patrick R. Donahoe's December 18, 2013 motion for summary judgment. Plaintiff opposes the motion. On February 13, 2014, this matter was submitted on the briefs. Having reviewed the motion and the documents filed in support and opposition, THE COURT FINDS AS FOLLOWS:
UNDISPUTED FACTS1
In 2009, plaintiff Karamen Ballard, a member of the National Postal Mail Handlers Union, worked as a Part-Time Regular Mail Handler for the United States Postal Service ("USPS") in Stockton, California, at its Processing and Distribution Center. Garcia Decl. ¶ 5. Plaintiff worked with three other part-time mail handlers in loading, unloading, and moving mail from 7:00 p.m. to 1:00 a.m. Id.; Ballard Dep. 85:24-86:25 . Plaintiff andthe other part-time mail handlers were supervised by Virginia Garcia during the first part of their shift. Garcia Decl. ¶ 5. The last couple hours of the shift were supervised by Eladio Manzana. Garcia Decl. ¶ 5; Manzana Aff. ¶ 5. Occasionally, Juanita Mendoza would supervise the part-time mail handlers. Garcia Decl. ¶ 5; Mendoza Aff. ¶¶ 4, 5. It is essential that the work of mail employees such as plaintiff be completed in a timely, efficient manner in order to maintain the USPS's mission of providing prompt and reliable mail service to its customers. Garcia Decl. ¶ 6, Ex. A.
In early 2009, plaintiff took medical leave from his job. Ballard Dep. 24:22-24 (Boesch Decl. Ex. B). On March 25, 2009, after returning from leave, plaintiff made an informal Equal Employment Opportunity ("EEO") complaint, EEO Case No. 1F-953-0012-09, alleging that Sharif Estes, Manager of Distribution and Operations, refused to approve plaintiff's March 11, 2009 request for three days of light duty upon his return from medical leave and that this amounted to discrimination based on race and sex ("the Light-Duty Complaint"). Tam Decl. Ex. A; Ballard Dep. 24:22-29:23 (Boesch Decl. Ex. B), Ballard Dep. 148:13-152:7 (Boesch Decl. Ex. C); Boesch Decl. Ex. R. On May 27, 2009, the Light-Duty Complaint was resolved through internal mediation that resulted in an agreement to pay plaintiff $275. Tam Decl. Ex. A. Plaintiff alleges here that the retaliation now at issue is a product of the Light-Duty Complaint and mediation. Ballard Dep. 29:3-30:11 (Boesch Decl. Ex. B).
In the six weeks after his return to full duty from medical leave in early 2009, plaintiff had ten unscheduled full-day absences and one ¾-day absence. Garcia Decl. ¶ 7, Ex. B. Of these, the first seven were ultimately categorized as unscheduled Family Medical Leave Act absences (May 26-30, April 1-2). See id. Ex. B. The remaining four were not re-categorized, however, and were thus considered unscheduled leave without pay.
Unscheduled absences create problems since they are not approved in advance by management and thus can cause staff shortages. Garcia Decl. ¶ 7, Exs. C-D. In addition to the unscheduled absences, plaintiff called into the USPS's automated ERMS Leave System on May18, 2009 and left a message noting that he would be absent from consecutive shifts on May 15, 17, and 18, 2009. Garcia Decl. ¶ 10, Ex. E. When plaintiff called in, the ERMS Leave System instructed plaintiff that he may be required to provide documentation to support his request.2 Ballard Dep. 174: 24-175:21 (Boesch Decl. Ex. D). The USPS's policy requires supervisors to regulate unscheduled absences by speaking with employees who have excessive absences and requesting documentation. Garcia Decl. Ex. C (ELM 511.42, 511.43), Ex. D (ELM 665.41, 665.42). Because plaintiff's unscheduled absences followed multiple other unscheduled absences, Garcia asked plaintiff to provide documentation to support his absences. Garcia Decl. ¶ 11. On May 20, 2009, plaintiff submitted a note that he had written himself stating that his family had a personal emergency that prevented him from reporting to work. See Garcia Decl. Ex. G. When plaintiff submitted his note, Garcia explained that she needed independent verification that he was unable to work and provided examples of a tow truck or repair shop record or a doctor's note. Garcia Decl. ¶ 11.
Plaintiff failed to submit any further documentation. Garcia Decl. ¶ 11. Accordingly, Garcia scheduled an investigative interview for May 27, 2009. Id. At the time, Garcia was not aware of any prior EEO activity by plaintiff, had not spoken with Sharif Estes regarding such activity, had not seen any EEO complaints by plaintiff, and had not attended any mediation regarding the complaint. Id.
Neither plaintiff nor Garcia remember exactly how plaintiff was called to the May 27, 2009 investigative interview, though it was Garcia's practice to send a union shop steward to get the employee for such meetings. Garcia Decl. ¶ 12; Ballard Dep. 38:16-40:18 (Boesch Decl. Ex. E), Ballard Dep. 42:1-24 (id. Ex. F). Garcia declares that, prior to the interview, plaintiff did not request a consultation with the union steward. Garcia Decl. ¶ 12, Ex. F. In his deposition,plaintiff denied saying anything to Garcia before the interview began. Ballard Dep. 42:15-17 (Boesch Decl. Ex. F). In a June 10, 2009 grievance, however, plaintiff complained that he was denied a pre-interview consultation. Boesch Decl. Ex. W.
When plaintiff arrived at the interview, he was accompanied by a union steward and refused to answer any of Garcia's questions, a strategy he claims was based on a brief conversation he had with the union steward on his way to the interview. Garcia Decl. ¶ 12; see also Ballard Dep. 39:8-40:18 (Boesch Decl. Ex. E), Ballard Dep. 42:9-14 (id. Ex. F).
Though plaintiff does not remember what happened after this interview, Garcia declares that she granted plaintiff on-the-clock union time to consult with his union representative, as it is her practice to permit such consultations either before or after investigative interviews based on the employee's wishes. Ballard Dep. 46:7-16 (Boesch Decl. Ex. G); Garcia Decl. ¶ 13.
Either later on May 27, 2009 or the next day, on May 28, 2009, a union representative called Garcia to tell her that plaintiff wanted to apologize for his behavior during the interview (, for not answering Garcia's questions). Garcia Decl. ¶ 13. Plaintiff explained in his deposition that when he spoke to Garcia, he only apologized for not providing her with documentation. Ballard Dep. 45:6-45:25 (Boesch Decl. Ex. G). After the call with plaintiff, Garcia granted him one more week to provide adequate documentation. Garcia Decl. ¶ 13. Plaintiff, however, again failed to submit acceptable documentation. Garcia Decl. ¶ 13, Ex. G; Ballard Dep. 45:6-45:25 (Boesch Decl. Ex. G); Ballard Dep. 127:3-128:3 (id. Ex. H); Ballard Dep. 174:8-177:13 (id. Ex. D).
In light of plaintiff's failure to submit adequate documentation concerning his May 15, 17, and 18, 2009 unscheduled absences, Garcia issued a Letter of Warning on June 8, 2009, charging plaintiff with "Failure to Follow Instructions - Failure to Provide Requested Documentation."3Garcia Decl. ¶ 14, Ex. G. Garcia wrote this letter because, as supervisor, she is responsible for minimizing unscheduled absences, including by monitoring attendance and discussing attendance issues with employees, and plaintiff agrees that multiple absences from work are an attendance issue. Garcia Decl. ¶ 14, Exs. C-D, G; Ballard Dep. 81:3-5 (Boesch Decl. Ex. I). Between 2007 and 2009, Garcia issued similar Letters of Warning to three employees other than plaintiff for attendance issues, none of whom had a history of EEO activity of which Garcia was aware. Garcia Decl. ¶ 15, Ex. H.
After plaintiff submitted a grievance challenging the propriety of the June 9, 2009 Letter of Warning, see Ballard Dep. 57:22-58:7 (Boesch Decl. Ex. J), the matter was negotiated between a union representative and the USPS, with the latter ultimately reducing the Letter of Warning to an "official discussion" to be held in plaintiff's personnel file for two years.4 Boesch Decl. Ex. S.The union representative agreed to this settlement over plaintiff's objection. See id.
Between April 28, 2009 and October 2009, plaintiff requested time for on-the-clock union consultations from all of his supervisors (Garcia, Manzana, and Mendoza). Garcia Decl. ¶ 17; Manzana Aff. ¶¶ 10-12; Mendoza Aff. ¶¶ 10-11. All three supervisors allowed him on-the-clock union time, not always immediately but usually within 24 hours of the request. Garcia Decl. ¶ 17; Manzana Aff. ¶¶ 10-12; Mendoza Aff. ¶¶ 10-11; Ballard Dep. 35:21-36:15 (Boesch Decl. Ex. M). Plaintiff's supervisors each handled his requests exactly as they handled similar ones by other employees. See Garcia Decl. ¶ 17; Manzana Aff. ¶¶ 11-12; Mendoza Aff. ¶ 11.
On multiple occasions, plaintiff asked Garcia for on-the-clock consultations with a union shop steward. Garcia Decl. ¶ 17. Garcia sometimes granted plaintiff's requests immediately, though at other times she deferred the requests because work was busy or because a shop steward was unavailable. Id. Garcia was a shop steward herself for several years prior to becoming a supervisor and, as a result, appreciates the importance of these consultations. Id. As a supervisor, Garcia attempted to balance the need to get mail processed efficiently with the desire to provide on-the-clock union consultations at the time they are requested. Id. Occasionally, plaintiff would ask to speak with a shop steward immediately even though work was busy and he was needed on the floor. Id. Since timely mail processing is critical to the USPS's mission, Garcia would schedule on-the-clock...
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