Perez v. U.S. Postal Serv., 12–00315 RSM.

• Court: United States District Courts. 9th Circuit. United States District Court (Western District of Washington)
• Citation: 76 F.Supp.3d 1168
• Docket Number: No. 12–00315 RSM.,12–00315 RSM.
• Parties: Thomas E. PEREZ, Secretary of Labor, United States Department of Labor, Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant.
• Decision Date: 13 February 2015

76 F.Supp.3d 1168

Thomas E. PEREZ, Secretary of Labor, United States Department of Labor, Plaintiff
v.
UNITED STATES POSTAL SERVICE, Defendant.

No. 12–00315 RSM.

United States District Court, W.D. Washington, at Seattle.

Filed Feb. 13, 2015.

76 F.Supp.3d 1172

Bruce Lee Brown, Jeremiah Miller, U.S. Department of Labor, Seattle, WA, Natalie Nardecchia, U.S. Dept. of Labor, Office of the Solicitor, Los Angeles, CA, for Plaintiff.

Michael R. Tita, U.S. Postal Service, Shoreline, WA, Samuel J. Schmidt, U.S. Postal Service, Sandy, UT, Steven Bruce Schwartzman, U.S. Postal Service, Seattle, WA, for Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW AND MEMORANDUM ORDER

RICARDO S. MARTINEZ, District Judge.

I. INTRODUCTION

This case is before the Court on Plaintiff's claims against Defendant United States Postal Service (the “Postal Service”) under the Occupational Safety and Health Act, 29 U.S.C. §§ 651 et seq. (the “Act”). Plaintiff, the Secretary of Labor (the “Secretary”) alleges that the Postal Service violated Section 11(c)(1) of the Act, 29 U.S.C. § 660(c)(1), by retaliating against its employee, Arthur Williams (“Williams”), because of his protected activities under the Act. A five-day bench trial, beginning on September 15, 2014, was held to adjudicate the Secretary's claims. At the conclusion of the trial, the Court took the matter under advisement and ordered supplemental briefing on the appropriate scope of injunctive relief. The Court has now considered the evidence presented at trial, the exhibits admitted into evidence, the parties' trial and supplemental briefs, the parties' proposed Findings of Fact and Conclusions of Law, and the arguments of counsel at trial. The Court, being fully advised, enters judgment in favor of the Secretary and makes the following Findings of Fact and Conclusions of Law.

II. BACKGROUND AND PROCEDURAL HISTORY

This case concerns the Postal Service's actions taken against Williams following his engagement in activities indisputably protected under the Act, including transfer, de facto demotion, antagonistic investigative interviews, a letter of warning, enforced leave, public humiliation, and refusal to consider Williams for a promotion. The Secretary's Amended Complaint asserted that the Postal Service retaliated against Williams and subjected him to a hostile work environment because of his protected activity in violation of Section 11(c)(1) of the Act, 29 U.S.C. § 660(c)(1) (“Section 11(c)”). Dkt. # 31 (“FAC”).

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The Court denied the Postal Service's motion for summary judgment and reserved ruling on the Secretary's hostile work environment claim. Dkt. # 67. The Court requested, and the parties provided, supplemental briefing on whether a hostile work environment theory of liability was cognizable under Section 11(c). Dkt. 68–70. The Court also granted in part the Secretary's motion for sanctions for spoliation of evidence. Dkt. 66, 71. Pursuant to its Order, the Court drew a rebuttable presumption at trial against the Postal Service's performance-related justification for adverse employment actions taken with respect to Williams, following his protected activities. Dkt. # 71.

The Court held a bench trial on September 15–17, 2014 and September 22–23, 2014 and heard closing arguments on October 22, 2014. The following constitute the Court's Findings of Facts and Conclusions of Law, pursuant to Federal Rule of Civil Procedure 52(a). To the extent certain findings of fact may be deemed conclusions of law, or certain conclusions of law be deemed findings of fact, they shall each be considered conclusions or findings, respectively.

III. FINDINGS OF FACT

A. Williams' Initial Employment with the Postal Service

1. The Postal Service is an employer subject to the requirements of the Act. Dkt. # 72, p. 3.

2. The Postal Service first employed Arthur B. Williams in 1995 and has continuously employed Williams to the present. Id.

3. Williams initially worked as a mail carrier and then as a mechanic in bargaining unit positions. Trial Tr. Vol. 2 at 52–53.

4. In March 2002, Williams was promoted to a non-bargaining unit, management position on the Executive and Administrative (“EAS”) pay scale: an EAS 15 Human Resources Specialist in the Safety Department of Defendant's Seattle District. Trial Tr. Vol. 2 at 54:22–55:17; Vol. 3 at 60:7–20. In September 2003, Williams was further promoted to an EAS 16 Safety Specialist in the Safety Department of the Seattle District. Dkt. # 72, p. 3.

5. As both an EAS 15 Human Resource Specialist and an EAS 16 Safety Specialist, Williams was a safety generalist, with responsibility for tasks associated with Defendant's facilities as assigned by the Manager of Safety. Id. These tasks included providing safety advice and processing safety forms at over 300 small postal facilities or area offices throughout Washington. Trial Tr. Vol. 2 at 55:7–17.

6. In October 2006, Williams was promoted to an EAS 17 Safety Specialist, as a result of which his regular office was moved from the Seattle District Office, then located in Seattle's Queen Anne neighborhood (the “District Office”), to the Seattle Processing and Distribution Center (hereinafter, the “P & DC” or the “Plant”) in south Seattle. Dkt. # 72, p. 3. As an EAS 17, Williams was responsible for Safety Department activities at four large Postal Service facilities: Seattle P & DC, Everett Processing and Distribution Facility, South Delivery and Distribution Center, and East Delivery and Distribution Center, all facilities with over 1,000 employees. Id.

7. As an EAS 16 Safety Specialist, Williams worked for then-Safety Manager Jay Kaseman. In his Fiscal Year 2005 and 2006 annual evaluations, Kaseman ranked Williams as an exceptional contributor on two core requirements, a high

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contributor on one, and a contributor as to oral communication. Exs. 2, 3.

8. The EAS 17 position required Williams to plan, coordinate and evaluate safety and health activities and trainings, to conduct periodic inspections and evaluations for hazardous conditions and unsafe work practices, to investigate accidents and fatalities, to ensure management enforcement of compliance with safety and health policies and regulations, and to attend labor-management safety and health committee meetings. Id.; Trial Tr. Vol. 2. 61:14–24.

9. Williams frequently made reference to the Occupational Safety and Health Administration (“OSHA”) standards in his EAS 17 role and was involved in working with non-management and management employees to resolve OSHA complaints. Id. at 64:20–22; 140:14–23. He became known by the nickname “Little OSHA” at the Seattle P & DC. Trial Tr. Vol. 2 at 65:19–66:4.

10. Kelly Johnson became Manager of Safety in summer of 2007, at which point she began to oversee Williams' performance. Trial. Tr. Vol. 1 at 100:6–23. Her Fiscal Year 2007 annual performance review for Williams ranked him as an exceptional contributor in one respect, high contributor in another, and contributor in two respects. Ex. 4.

B. Williams' February 20, 2008 Protected Activity

11. On February 20, 2008, Williams engaged in protected activity within the meaning of the Act by assisting causal employee Naseem Banani in filing a complaint with OSHA. Dkt. # 72, p. 3.

12. Banani, a causal (i.e. temporary, non-union) employee at the P & DC, approached Sue Fesler, a union steward, and James White, a craft employee and union safety advocate, about breathing difficulties she was experiencing while working on the flat sorter machine. Trial Tr. Vol. 1 at 46:3–14. Banani told Fesler that she had explained the situation to her supervisors but had not received any assistance. Id. at 47:5–11.

13. Fesler and White took Banani to Williams' office at the P & DC. Id. at 48:24–49:25. Banani repeated her account to Williams, reporting that her supervisors had threatened to terminate her and that she had received no training as to her rights. Id.; Vol. 2. 71:24–73:2. Williams informed Banani that, though she had no union rights, she could contact the Equal Employment Opportunity Commission (“EEOC”) or OSHA. Id.; Vol. 1 at 49:6–13. He provided Banani with the phone number to OSHA. Id.

14. On February 20, 2008, Williams sent an email to Banani's supervisor, Manager of Distribution Operations (“MDO”) Pamela Cook, and Cook's supervisor, James Guffey, informing them of his meeting with Banani. His email stated that Banani felt she would be fired and that “OSHA will be reviewing the results to determine if we have a health issue.” Ex. 15.

15. On February 25, 2008, Banani filed a complaint with OSHA. Dkt. # 72, p. 3; see also Ex. 16. Banani testified that following her complaint, Cook berated her, interrogating her as to why she went to Williams and complained to the EEOC and OSHA. Trial Tr. Vol. 1 at 33:7–15. Banani testified that Cook instructed her to “take the [OSHA and EEOC] complaint[s] back” if she “ever want[ed] to work again for the Postal Service [ ].” Id. at 33:1923. Banani further testified that Cook stated, “You know, Naseem, no one can...