Winns v. DeJoy, 21-cv-04264-VKD
| Court | United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California |
| Parties | HARRIS L. WINNS, Plaintiff, v. LOUIS DEJOY, Defendant. |
| Docket Number | 21-cv-04264-VKD |
| Decision Date | 31 October 2022 |
HARRIS L. WINNS, Plaintiff,
v.
LOUIS DEJOY, Defendant.
No. 21-cv-04264-VKD
United States District Court, N.D. California, San Jose Division
October 31, 2022
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Re: Dkt. No. 48
VIRGINIA K. DEMARCHI United States Magistrate Judge
Plaintiff Harris Winns, who is representing himself in this matter, sues Louis DeJoy in his capacity as the Postmaster General of the U.S. Postal Service (“USPS”)[1] for alleged employment discrimination and retaliation under Title VII, 42 U.S.C. § 2000e-16. USPS now moves pursuant to Rule 56 for summary judgment. Mr. Winns opposes the motion. Upon consideration of the moving and responding papers, as well as the oral arguments presented, the Court grants USPS's summary judgment motion.[2]
I. BACKGROUND
Unless otherwise indicated, the following material facts are undisputed.
A. 2014 Termination and MSPB Appeal
Mr. Winns is Black and a Christian (Methodist). Dkt. No. 49 ¶ 3, Ex. B (Dkt. No. 49-2 at ECF 3). He previously was employed by USPS in various non-career[3] capacities since 2011, and
most recently as a non-career Postal Support Employee Sales and Services/Distribution Associate at the Seven Trees Carrier Station in San Jose, California. Dkt. No. 48 ¶ 3.[4] In September 2014, Mr. Winns requested that he not be scheduled to work on Sundays, for religious reasons. Dkt. No. 1 ¶ 12; Dkt. No. 47 ¶ 4. Around this time, USPS began Sunday package delivery service for Amazon.com. Mr. Winns's manager, Rose Dyer Sothdam, says that she told him that due to the anticipated volume of packages on Sundays, all carriers would be required to work on those days. Dkt. No. 47 ¶ 4. Ms. Sothdam further states that she offered to schedule Mr. Winns's Sunday hours so that he could attend church, but that there was no realistic possibility that he would have been permitted to take every Sunday off. Id.; see also Dkt. No. 48 ¶ 19, Ex. I (Dkt. No. 48-9 at ECF 3).
After Mr. Winns did not report for work on two Sundays, USPS designated him Absent from Work without Approved Leave (“AWOL”). Dkt. No. 47 ¶ 5. When Mr. Winns did not report for work on two additional Sundays, USPS issued a Notice of Removal dated October 3, 2014, stating that his employment would be terminated effective November 7, 2014 for failure to follow instructions, irregular attendance, and being AWOL. Id. ¶ 5, Ex. A (Dkt. No. 47-1); see also Dkt. No. 1 ¶ 12, Ex. A. Claiming that Mr. Winns refused to obey instructions, used profanity and left during his work shift, USPS subsequently issued a second Notice of Removal dated October 30, 2014, stating that his employment would be terminated, effective November 30, 2014, for unacceptable conduct and failure to follow instructions. Dkt. No. 47 ¶ 5, Ex. B; Dkt. No. 1 ¶ 12, Ex. B.
In lieu of contacting an equal employment opportunity (“EEO”) counselor and filing a complaint, on December 7, 2014, Mr. Winns filed a mixed case appeal with the Merit Systems Protection Board (“MSPB”) challenging his 2014 termination and alleging discrimination based on his race and religion, as well as retaliation for prior EEO and union activities. Mr. Winns also
alleged harassment and a hostile work environment and claimed that he was denied a promotion. See Winns v. U.S. Postal Serv., No. SF-0752-15-0165-I-1, 2015 WL 2127208, ¶ 2 (M.S.P.B. May 7, 2015); see also 29 C.F.R. § 1614.302(b) (providing, in relevant part, that “[a]n aggrieved person may initially file a mixed case complaint with an agency pursuant to this part or an appeal on the same matter with the MSPB pursuant to 5 C.F.R. 1201.151, but not both.”). On January 26, 2015, an MSPB administrative judge dismissed the appeal for lack of jurisdiction on the ground that Mr. Winns did not allege that he completed the one year of continuous service required to establish jurisdiction over his appeal. Winns, 2015 WL 2127208, ¶ 3; see also Dkt. No. 48 ¶ 12, Ex. B (Dkt. No. 48-2 at 1). That decision was upheld by the full Board on May 7, 2015. See Winns, 2015 WL 2127208, ¶¶ 5, 6.
Mr. Winns filed a petition with the Office of Federal Operations (“OFO”), the appellate arm of the Equal Employment Opportunity Commission (“EEOC”), for review of the MSPB's May 7, 2015 decision. See Dkt. No. 48 ¶ 12, Ex. B (Dkt. No. 48-2).[5] On March 8, 2016, the OFO denied Mr. Winns's petition and remanded the matter to USPS. Id.; see also Winns (Salvatore B) v. U.S. Postal Serv., No. SF No. SF-0752-15-0165-I-1, 2016 WL 1085154 (E.E.O.C. Mar. 8, 2016). Because Mr. Winns initially elected to file an MSPB appeal rather than initiate EEO proceedings, the OFO instructed USPS to notify Mr. Winns “of the right to contact an EEO counselor within forty five (45) days of receipt of this decision, and to file an EEO complaint,” stating that “[t]he date on which [Mr. Winns] filed the appeal with the MSPB shall be deemed the date of the initial contact with the EEO counselor.” Dkt. No. 48, Ex. B (Dkt. No. 48-2 at ECF 3); see also 29 C.F.R. § 1614.302(b) (providing, in relevant part, that “[i]f a person files a mixed case appeal with the MSPB instead of a mixed case complaint and the MSPB dismisses the appeal for jurisdictional reasons, the agency shall promptly notify the individual in writing of the right to
contact an EEO counselor within 45 days of receipt of this notice and to file an EEO complaint, subject to § 1614.107.”).
B. 2015 Reinstatement and Termination
Meanwhile, USPS sent Mr. Winns a letter dated March 24, 2015, stating that the October 3, 2014 and October 30, 2014 removal notices were rescinded and would be expunged from his personnel file. Dkt. No. 47 ¶ 6, Ex. C (Dkt. No. 47-3). USPS's legal department says that the March 24, 2015 letter resulted from a review of Mr. Winns's 2014 removal, in which it was determined that USPS did not seek volunteer substitutes to work on Sundays in place of Mr. Winns, and therefore may not have properly evaluated his request to not work on Sundays. Dkt. No. 50 ¶¶ 3, 4. The letter further advised that USPS would pay Mr. Winns back pay and benefits for the period that he was off work, excluding any dates taken for personal reasons and accounting for any unemployment benefits received during the time period of the removal actions. Dkt. No. 47 ¶ 6, Ex. C (Dkt. No. 47-3). To that end, the letter requested that Mr. Winns complete and submit an enclosed PS Form 8038, noting “[i]f you do not timely complete and return the PS Form 8038, you will be deemed to have waived your right to collect back pay.” Id. Finally, the letter instructed Mr. Winns to report back to work on March 30, 2015, at which time he would receive his work duties and schedule. Id. The letter also provided contact information if he had any questions about the letter or how to complete the PS Form 8038. Id.
Mr. Winns disputes that USPS validly rescinded the October 2014 removal notices and reinstated his employment. He contends that the October 2014 removal notices were not “fully rescinded” because the March 24, 2015 letter did not give certain assurances regarding his employment, including that he would not have to work on Sundays. Dkt. No. 53 at 7-9. In his complaint filed with this Court, Mr. Winns states that “if it was true that the USPS offered him an opportunity to return to work, he would have gleefully done so.” Dkt. No. 1 ¶ 47. However, in his summary judgment opposition, Mr. Winns argues that the March 2015 reinstatement of his employment is invalid because no reasonable person would agree to return to employment at USPS without assurances that, among other things, he would not be required to work on Sundays. Dkt. No. 53 at 8. He acknowledges that he did not communicate his concern to USPS or ask for
clarification about his work schedule. See Dkt. No. 49 ¶ 2, Ex. A (Winns Dep. at 87:1-88:8).
Mr. Winns did not respond to the March 24, 2015 letter and did not return to work on March 30, 2015. Dkt. No. 47 ¶ 8. USPS sent Mr. Winns a second letter dated April 2, 2015, stating that he was considered AWOL and noting that he had not been at work since March 30, 2015 and failed to provide documentation justifying his continued absence from work. Id. ¶ 9, Ex. D (Dkt. No. 47-4). The letter directed Mr. Winns to contact USPS immediately upon his receipt of the letter and, within five days of his receipt of the letter, to submit acceptable evidence of his inability to report to work. Id. Mr. Winns did not respond to the April 2, 2015 letter. Id. ¶ 12.
USPS sent Mr. Winns a third letter dated April 10, 2015, instructing him to report on April 14, 2015 for an investigative interview to discuss his AWOL status. Dkt. No. 47 ¶ 13, Ex. F (Dkt. No. 47-6). The letter warned that “[a] failure to attend this investigative interview and/or a failure to immediately return to duty will result in your removal from the Postal [S]ervice.” Id. Mr. Winns did not respond to the April 10, 2015 letter. Nor did he appear for the April 14, 2015 investigative interview. Id. ¶ 15.
A few weeks later, USPS sent Mr. Winns a Notice of Proposed Removal, dated May 4, 2015. Id. ¶ 16, Ex. G (Dkt. No. 47-7). The notice advised that USPS proposed to terminate his employment “no sooner than 30 calendar days from the date of [his] receipt of this notice” based on his AWOL status and failure to comply with the instructions in the March 24, 2015, April 2, 2015, and April 10, 2015 letters. Id. The notice informed Mr. Winns that he could review the material USPS relied on to support the reasons for the notice and that he could answer the notice, within 10 calendar days from his receipt of the notice, either in person or in writing, including any affidavits or written material. Id. The notice further advised Mr. Winns that he had 14 days from his receipt of the notice in which to file a grievance concerning the proposed removal. Id. USPS says that Mr. Winns did not ask to review any documents or to...
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