Brown v. Brennan

• Decision Date: 28 April 2015
• Docket Number: Civil Action No.: 4:14-cv-0307-RMG-TER
• Citation: Brown v. Brennan, Civil Action No.: 4:14-cv-0307-RMG-TER (D. S.C. Apr 28, 2015)
• Court: U.S. District Court — District of South Carolina
• Parties: DIANA BROWN, Plaintiff, v. MEGAN J. BRENNAN, Postmaster General, United States Postal Service; Defendant.

DIANA BROWN, Plaintiff, v. MEGAN J. BRENNAN, Postmaster General, United States Postal Service; Defendant.

Civil Action No.: 4:14-cv-0307-RMG-TER

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA FLORENCE DIVISION

April 28, 2015

REPORT AND RECOMMENDATION

I.INTRODUCTION

This is an employment case.Plaintiff brings this action pursuant to Title VII of the Civil Rights Act of 1964(Title VII), 42 U.S.C. § 2000(e)etseq., alleging discrimination based on race and retaliation.Presently before the court is Defendant's Motion for Summary Judgment(Document # 25).All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B)andLocalRule 73.02(B)(2)(g), DSC.This report and recommendation is entered for review by the district judge.

II.FACTS

Plaintiff, an African-American female, began working for the United States Postal Service (USPS) in Marion, South Carolina, on August 20, 2000, as a Rural Carrier Associate (RCA), which is a non-career, part-time position.Pl.Dep. 15-16, 19 (Ex. 1 to Def. Motion).In 2006, she transferred to the Latta Post Office and later that year to the South Florence Post Office.Pl, Dep. 21-23.In 2008, Plaintiff's supervisor, Clark Ord, told her that her hours would be substantially reduced and there may be some weeks when she would have no work at all.Ord suggested that she apply for partial unemployment benefits at the South Carolina Employment Security Commission(SCESC).Brown Pre-hearing Report (Ex. 2 to Def. Motion).From October of 2008 through October of 2009,during the period that her hours were reduced, Plaintiff applied for and received partial unemployment benefits through SCESC.Id.

On June 22, 2010, the USPS Office of Inspector General(OIG) received information from Ryan Sneed, Supervisor, Employment and Workforce, SCESC, regarding Plaintiff and other postal employees.USPS OIC Report of Investigation (Ex. 5 to Def. Motion).Sneed reported that, between October of 2008 and October of 2009, Plaintiff had filed fraudulent unemployment claims in that she under-reported her income when filing for partial unemployment benefits.Id.As an RCA employee, Plaintiff was entitled to work and apply for partial unemployment benefits during their slow period.Id.Plaintiff was responsible for accurately reporting her earnings to the SCESC at the end of each week.Id.

After receiving this information from Sneed, the OIG conducted its own investigation.Id.Between July 2010 and November 2010, Special Agent (SA)Stanley Johnson gathered information and conducted a spreadsheet comparison of Plaintiff's weekly reports to the SCESC and her USPS payroll records.Id.The comparison revealed that Plaintiff under-reported her income on several occasions, resulting in overpayments totaling $7,381.00.Id.

Meanwhile, in the fall of 2010, during the OIG investigation, Plaintiff filed a grievance through the union, alleging that she had be improperly bypassed for a full time Rural Carrier position and raising the issue of "whether or not management failed to timely post Rural Route 13 and, if so, what shall be the remedy?"Pl.Dep. 27, 29, 30; Step 2 Grievance Settlement (Ex. 3 to Def. Motion).Plaintiff's grievance was resolved at step 2 on January 6, 2011, and Plaintiff was offered a full-time position at the Main Post Office on West Evans Street in Florence with pay retroactive to November 20, 2010.Id.

Plaintiff's first supervisor at the Main Post Office was Pam Jefferson, a white female, andlater, Louise Kinney, an African-American female.Pl.Dep. 33-34.Rando Strickland, II, a white male, was Postmaster in Florence in 2011 and, as such, he was her second line supervisor.

On January 27, 2011, SA Johnson along with SA Edison D. Gunter, of the OIG for the U.S. Department of Labor, interviewed Plaintiff.Id.; USPS OIG Memorandum of Interview (Ex. 5 to Def. Motion).Neither Kinney nor Strickland were aware of the investigation regarding the overpayments until SA Johnson and SA Gunter visited the Florence post office to interview Plaintiff.KinneyDecl. ¶ 3;StricklandDecl. ¶ 5.During the interview, Plaintiff conceded that she under-reported her income to the SCESC.USPS OIG Memorandum of Interview.She stated that she calculated her earnings in half¹ when she reported them to the SCESC, and that she did not fully understand the process.Id.She offered to repay any funds deemed an overpayment by the SCESC.Id.Following the interview, Plaintiff visited the SCESC to obtain details of the overpayment and was given a signed, computer printout² showing that their records did not reflect any overpayment.³EEOC Hearing Decision (Ex. A to Pl. Response).

The Inspector General released a report of SA Johnson's findings on February 10, 2011.USPS OIC Report of Investigation (Ex. 5 to Def. Motion).On February 12, 2011, Strickland placed Plaintiff on Emergency Placement in Off-Duty Status.Emergency Placement in Off-Duty Status Memorandum (Ex. 6 to Def. Motion).Later that same day, February 12, 2011, Plaintiff made officialcontact with an EEOC Counselor.

On March 22, 2011, Plaintiff was indicted on one count of violation of 18 U.S.C. § 641. Pl. Indictment (Ex. 14 to Def. Motion).Plaintiff received a Notice of Removal, notifying her of her termination, on April 22, 2011.Notice of Removal (Ex. 7 to Def. Motion).Plaintiff's first-line supervisor, Kinney, made the recommendation for removal and Strickland concurred.Kinney Decl. (Ex. 1 to Def. Reply); Strickland Decl. (Ex. 2 to Def. Reply).Plaintiff grieved the removal through the union, which was denied at steps one, two and three.KellyDecl. ¶ 10(a) (Ex. 4 to Def. Reply).At the final appeal, Plaintiff's grievance was withdrawn by the union.Id.;Pl.Dep. 97-98.After the union withdrew the grievance, Plaintiff's employment was officially terminated and she was removed from the rolls of the USPS on January 31, 2013.Notification of Personnel Action (Ex. 11 to Def. Motion).

Following her indictment, Plaintiff entered the pretrial diversion program and completed her requirements on July 30, 2013, including repayment of the monies due in full.Agreement for Pretrial Diversion (Ex. 12 to Def. Motion); Pre-Hearing Report.On September 9, 2013, the indictment was dismissed without prejudice.Order Dismissing Indictment (Ex. 14 to Def. Motion).

In addition to Plaintiff, other USPS employees were accused of under-reporting their income to the SCESC and at least four of them (three African-American and one white) were indicted and removed from their positions with the USPS.Newspaper Article(Ex. 15 to Def. Motion).The USPS issued a Notice of Removal to Corey C. Baker, an African-American male , on March 28, 2011.His removal was effective April 29, 2011.Court records show that he was indicted on March 22, 2011, he entered the Pretrial Diversion Program, and the charges against him were dismissed without prejudice on June 20, 2013.Baker Documents (Ex. 16 to Def. Motion).

The USPS issued a Notice of Removal to Carmen Robertson, a white male, on March 1,2011.His removal was effective April 16, 2012.Court records show that he was indicted on March 22, 2011, that he successfully completed the Pretrial Diversion Program, and that the charges against him were dismissed without prejudice on April 22, 2013.Robertson Documents (Ex. 17 to Def. Motion).

The USPS issued a Notice of Removal to Tracy H. Timmons, an African-American female, on March 28, 2011.Her removal was effective April 29, 2011.Court records show that she was indicted on March 22, 2011, that she successfully completed the Pretrial Diversion Program, and that the charges against her were dismissed without prejudice on September 9, 2013.Timmons Documents (Ex. 18 to Def. Motion).

The USPS issued a Notice of Removal to Keisha Weaver, an African-American female, on March 11, 2011.Her removal was effective August 16, 2012.Court records show that she was indicted on March 22, 2011, entered a guilty plea on August 23, 2011, and was sentenced to five (5) years' probation.Weaver Documents (Ex. 19 to Def. Motion).

Plaintiff notes one white USPS employee, Angela Atkinson, who was also accused of under-reporting her income to the SCESC, but whose employment was not terminated.Atkinson worked at the Hartsville post office under a Postmaster other than Strickland.Pl.Dep. 72 (Ex. 3 to Def. Reply).She was interviewed by OIG Agent Rhonda Dolby and a Postal Inspector General in January 25, 2011, for under-reporting her income in 2009.KellyDecl. ¶ 10(g) (Ex. 4 to Def. Reply).Atkinson was placed on Emergency Placement effective July 29, 2011, and issued a Notice of Removal on September 8, 2011.Id.No criminal charges were brought against Atkinson.⁴The uniongrieved Atkinson's removal, which was denied at steps one and two, but a settlement was reached at step three and Atkinson was able to retain her job.KellyDecl. ¶ 10(g).

Plaintiff also points to employees who improperly received an Equipment Maintenance Allowance (EMA), which is a reimbursement for personal car expenses, even though they were driving government trucks, asserting they engaged in conduct similar to hers.Rebecca Jenson, a white female, Stella McClellan, an African-American female, and Linda Buckner, an African-American female, were also supervised by Kinney and Strickland.Strickland Aff.They were not placed on Emergency Placement, were allowed to repay the overpayments, and were not removed from employment.Id.Strickland explained that the improper payment of EMA to these employees resulted from a management oversight in failing to update records when a government truck was assigned to these employees and they no longer used their personal vehicles.Id.

Plaintiff filed a formal Charge of Discrimination with the EEOC on May 15, 2012, alleging discrimination based upon race.EEOC Complaint of Discrimination (Ex. 8 to Def. Motion).The EEOC held a hearing...