Lopez v. Donahoe, CIVIL NO. 1:11-CV-189

• Decision Date: 23 March 2015
• Docket Number: CIVIL NO. 1:11-CV-189
• Parties: DANIEL LOPEZ, Plaintiff, v. PATRICK R. DONAHOE, POSTMASTER GENERAL OF THE UNITED STATES POSTAL SERVICE, Defendant.
• Court: U.S. District Court — Southern District of Texas

DANIEL LOPEZ, Plaintiff,
v.
PATRICK R. DONAHOE, POSTMASTER GENERAL
OF THE UNITED STATES POSTAL SERVICE, Defendant.

CIVIL NO. 1:11-CV-189

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION

March 23, 2015

MEMORANDUM OPINION AND ORDER

BE IT REMEMBERED, that on March 23, 2015, the Court considered Defendant's Motion and Memorandum in Support for [sic] Summary Judgment, Dkt. No. 51; Plaintiff Daniel G. Lopez's Brief in Response to Defendant's Motion for Summary Judgment, Dkt. No. 53; and Defendant's Reply to Plaintiff Daniel Lopez's Response to Defendant's First Motion for Summary Judgment, Dkt. No. 54. For the following reasons, the Court grants this motion in part and denies it in part, finding that Plaintiff has made out a prima facie retaliation claim under Title VII, 42 U.S.C. §§ 2000e-1 et seq.

I. Background

Plaintiff Daniel Lopez ("Lopez"), a Mexican-American man, works as a letter carrier for the U.S. Postal Service in Brownsville, Texas. See First. Am. Compl. ¶ 4, 9, Dkt. No. 34; Ans. To Pl.'s Am. Compl. ¶ 4, 9, Dkt. No. 37; see also Am. Compl. ¶ 16 (alleging Lopez worked for U.S. postal service since 1995); Decl. of Daniel Lopez ¶ 1, Dkt. No. 53 Ex. 8. He brings claims against Patrick R. Donahoe ("Donahoe"), in his capacity as the Postmaster General of the U.S. Postal Service, under 42 U.S.C. §2000e et. seq. ("Title VII"). See Pl.'s First Am. Compl. ¶¶ 18-20. His claims center on the tenure of Jeffrey Jenkins ("Jenkins") who became Postmaster General in

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Brownsville "in the latter part of 2007." Id. ¶ 9; see also Am. Ans. ¶ 9 (admitting Jenkins became postmaster during this time period). Defendant moves for summary judgment. Dkt. No. 51.

A. Procedural History

Three Plaintiffs originally filed this action: Lopez, Gerardo Trevino ("Trevino"), and Jamie Mendez ("Mendez") (collectively "Plaintiffs"). Pls.' Compl. 1, No. 1:11-CV-00189, Dkt. No. 1. On May 12, 2011, Trevino, Lopez, and Mendez commenced what is now No. 1:11-CV-189 in the McAllen Division of this Court. Id. They bring Title VII claims under theories of race/national-origin discrimination, retaliation, and hostile work environment. Id. at 1.

On September 19, 2011, the Court issued an order transferring this case to the Brownsville Division. Order of Transfer, No. 1:11-CV-00189, Dkt. No. 18. On December 1, 2011, Donahoe filed a motion to sever Plaintiffs' claims. No. 1:11-CV-00189, Dkt. No. 22. Donahoe argued that under Rules 20 and 21 of the Federal Rules of Civil Procedure, Plaintiffs' claims should be severed into three separate lawsuits on the basis of misjoinder. Id. at 1. This Court granted that motion on March 12, 2012, explaining that "Jenkins's presence might be a factual element that links plaintiff's claims, but it is not a transaction or occurrence sufficient to fulfill the first prong of a joinder analysis." Order 5, No. 1:11-CV-00189, Dkt. No. 31. Accordingly, the Court severed Cause No. 1:11-CV-00189 into a separate action for each plaintiff: Daniel Lopez v. Patrick Donahoe 1:11-CV-00189; Jamie Mendez v. Patrick Donahoe 1:12-CV-00055; and Gerardo Trevino v. Patrick Donahoe 1:12-CV-00056. Id. at 6.

Donahoe has filed a motion for summary judgment. Dkt. No. 51. In his reply, he raises objections to several of the exhibits Lopez attached to his response. See Dkt. No. 54 at 2-13.

B. Summary Judgment Evidence

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The Court recites the facts reflected in the summary-judgment record in the light most favorable to Lopez. See, e.g., Johnson v. Merrell Dow Pharm., Inc., 965 F.2d 31, 32 (5th Cir. 1992) ("Because this case was decided on summary judgment, the acts that Johnson recites as the basis for his . . . claim will be described in the light most favorable to Johnson, the nonmoving party."). Lopez served as the president of the local affiliate of the National Association of Letter Carriers' union in Brownsville in 2008. See Decl. of Daniel Lopez ¶ 3. Dkt. No. 53 Ex. 8. According to Lopez's declaration, Ray Finley ("Finley"), a custodial employee, told Lopez that he overheard Jenkins say "where did all these f___king Mexicans come from?" Id. ¶ 4. In his deposition, Finley denied making this statement and suggested that he heard Jenkins say that he wanted to "get rid of some dead weight." Dkt. No. 53 Ex. 7 at 16:2-3. Other portions of Finley's deposition testimony can also be viewed in the light most favorable to Lopez as stating that Finley could not recall telling Lopez and other post office employees about the "f___king Mexicans" comment. See id. at 15:18—25.

One of Lopez's coworkers, Trevino, told Lopez that Finley related this story to him as well. Decl. of Daniel Lopez ¶ 5. Trevino and Lopez, acting in his role as union president, wrote letters to postal service management complaining about this alleged comment and their observations of Jenkins's conduct. See id. Lopez also assisted Trevino in prosecuting an unspecified number of Equal Employment Opportunity (EEO) complaints. See id. ¶ 9.

1. Lopez's Allegations and Declaration

In his amended complaint, Lopez claims that Jenkins and other management employees began a pattern of retaliation against him for this activity and created a hostile work environment. See Am. Compl. ¶ 10. Lopez alleges that "he was not allowed to bid on an assignment that he was entitled to bid upon." Id. He further pleads that he "was bumped off and [the assignment] was given, in violation of Contract and established seniority, to a junior White employee. The harassment and retaliation was so severe against Plaintiff Lopez that he suffered a heart attack." Id. ¶ 15; see also Lopez Decl. ¶ 15 (describing heart attack of June 1, 2009).

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At his deposition, Lopez explained that a postal service employee can bid on a temporary assignment, as when another postal carrier goes on vacation, and the assignment will be awarded based on seniority. See Dep. of Daniel Lopez 62:13-16, Dkt. No. 51 Ex. 1.

On August 14, 2008, Lopez was involved in an automobile accident while apparently driving a postal vehicle. See Lopez Decl. ¶¶ 11, 12 (stating that Lopez damaged one brick of a mailbox). The next day, Jenkins suspended Lopez's driving privileges. Id. According to Lopez, an immediate supervisor normally conducts an investigative interview after an accident, but Jenkins interviewed Lopez himself. See id. Furthermore, Jenkins allegedly suspended Lopez before conducting the interview in violation of the applicable procedure. See id. Finally, Lopez states that applicable policies require a decision to be made within fourteen days. See id. Jenkins exceeded that time limit, and Lopez "could only work about two to four hours a day" as a result. Id.

Lopez states that, on December 2, 2008, he began to feel sick after he and a union member were involved in a confrontation with a postal service manager. See id. ¶ 13. He told that supervisor that he was feeling ill, submitted a leave request form, and returned the next day with a doctor's note. Id. He was nonetheless issued a notice of a fourteen-day suspension on December 4, 2008, for being away without leave. Id.; see also Am. Compl. ¶ 12 (alleging that leave documentation was deleted from postal service computers). Lopez states that the fourteen-day suspension letter he ultimately received, a copy of which is not in the record, falsely stated that he was previously issued a warning letter and given a seven-day suspension. See Lopez Decl. ¶ 13. Moreover, Lopez states that suspension letters must be issued within fourteen days, yet he received his thirty-six days after the incident in question. See id. He also states in his declaration that the suspension was "later thrown out by the Step B Team." Id. Finally, on December 26, 2008, Jenkins caused an undated document proposing to terminate Lopez to be issued for Lopez. Lopez Decl. ¶ 14.

Lopez further declares that:

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6. "Postmaster Jenkins was hostile, aggressive, combative and unfair when he dealt with Hispanic carriers. He would shout at them, harass them, and belittle them. It was a direct contrast to how he interacted with Anglo employees. One example was when a number of carriers were waiting on the registry clerk to clear certified mail, registered mail, COD's. Postmaster Jenkins walked up and started shouting at them as to why they were standing there. Carrier Carlos Rodriguez tried to explain and Postmaster Jenkins told him to "shut up, that he didn't ask him anything." When carrier Rodriguez again tried to tell him he was only trying to answer, he was jumped on again. Postmaster Jenkins shadowed carrier Rodriguez back to his case. But any interaction with an Anglo employee was different as night is to day. It was obvious.
7. "One example is Ken Jenks, an Anglo carrier, who cases the route next to me, broke his toe. The injury was off duty. There is no[] obligation to provide him work because of it was an off the job injury. Jenks was allowed to work. I was not. Mr. Trevino was not. When Postmaster Jenkins would talk to carrier Jenks, he talk to him like he was a friend. When he spoke to me or to Mr. Trevino, he implied we were lazy. He looked down at you and he did not speak in a friendly manner.
8. "An Anglo supervisor, Cynthia Hampton, refused a direct order given to her by Postmaster Jenkins. She walked away, went into a storage room and shut the door. Postmaster Jenkins did nothing to her. But I have seen him shout, yell, and belittle Hispanic supervisors in front of everyone.

Lopez Decl. ¶¶ 6-8 (quotation marks in original). In support of its motion for summary judgment, Donahoe supplies excerpts of Lopez's deposition which Donahoe contends conflict with this declaration. Dkt. No. 51 Ex. A.

2. Declarations of Other Brownsville Post Office Employees

In addition to his own declaration, Lopez attaches to his response to Donahoe's motion for summary judgment eight declarations of other Hispanic individuals who worked in the Brownsville post office in 2008. See Dkt. No. 53 Ex. 1-6, 8-10. By...