The opinion of the court was delivered by: Simandle, Chief Judge
This matter is before the Court on a motion for summary judgment [Docket Item 17], brought by Defendant Patrick Donahoe, who is being sued in his official capacity as Postmaster General for the United States Postal Service ("Defendant"). Plaintiff Vivian Diaz alleges that her termination as a transitional postal employee violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., because she was subjected to intentional employment discrimination on the basis of race (Hispanic), sex (female), and national origin (Puerto Rican). She also alleges that her termination was in retaliation for prior protected activity, namely raising allegations of prior discrimination.
The key inquiries for the Court are whether Plaintiff has adduced admissible evidence from which the finder of fact could reasonably conclude that she was treated differently from "similarly situated" non-minority employees for her discrimination claims, and whether Plaintiff has shown materially adverse employment actions under her retaliation claim. A secondary issue is, to the extent Plaintiff makes out a prima facie case for discrimination or retaliation, whether Plaintiff has proffered admissible evidence from which a reasonable factfinder would conclude that Defendant's asserted legitimate reasons for Plaintiff's termination or other adverse actions were pretextual. Because the Court answers all three questions in the negative, Defendant's motion for summary judgment must be granted.
The facts of the case are drawn primarily from the parties' statements of facts and are undisputed, except where noted.
Plaintiff Diaz ("Plaintiff"), a female born in Puerto Rico, began her employment with the U.S. Postal Service ("USPS") in 2006 as a mail handler and, later, a clerk - both considered "casual" positions - at two different facilities. [Pl. Dep. of Vivian Diaz ("Diaz Dep.") at 27:17-29:24.] In October 2008, she was transferred to the Salem (N.J.) Post Office as a "City Carrier (Transitional Employee)," commonly referred to as a "TE city carrier." [Pl. Statement of Material Facts ("Pl. SF") ¶ 1; Def. Statement of Undisputed Material Facts ("Def. SF") ¶¶ 1-2.]
A TE city carrier is a non-career, temporary employee, who delivers and collects mail, by vehicle or by foot, and who sorts ("cases") mail in sequence of delivery along a mail route, among other duties. [Def. SF ¶¶ 2, 6.] These employees may be required to carry shoulder satchels with mail weighing up to 35 pounds, and to load and unload containers of mail weighing up to 70 pounds. [Id. ¶ 6.] A TE city carrier is hired for a term not to exceed 360 calendar days, with a break in service of at least five days between appointments. [Id. ¶ 3.] In contrast to full-time employees, who are assigned regular schedules and routes, and part-time employees, who either are assigned to regular schedules and routes or work flexible hours assigned weekly, TE city carriers do not have fixed routes and receive work assignments as needed, only after efforts to use part-time flexible employees have been exhausted. [Id. ¶¶ 3-5.] TE city carriers are paid an hourly wage, are subject to maximum hour limits, do not receive medical benefits and may be terminated at any time upon completion of their assignment or for lack of available work. [Id. ¶ 5.] They may be temporarily or permanently reassigned to another post office, as needed; the USPS frequently reassigns TEs to give them additional hours and to reduce the number of overtime hours worked by career employees. [Id. ¶¶ 5, 12.] As of March 2009, the Salem Post Office employed three TE city carriers (Plaintiff, Justin Ramsden, and Eric Price) to supplement a workforce of regular and part-time flexible carriers. [Id. ¶¶ 9-11.]
Plaintiff alleges that during her 10 or 11 months in Salem, she was subject to multiple incidents of harassment, discrimination and other slights by her supervisors. In March 2009, the USPS's South Jersey District, which handled human resources matters for the Salem Post Office, transferred John Reese, a customer service supervisor in Delaware, to Salem as a part-time flexible city carrier. [Id. ¶ 14.] Disappointed that she had not had an opportunity to apply for the position, Plaintiff contacted a USPS Equal Employment Opportunity ("EEO") counselor for "pre-complaint counseling" about Reese's reassignment, and asserted that the reassignment constituted discrimination against her on the basis of race, national origin and gender.*fn1 [Id. ¶ 15; Pl. SF ¶ 21; Def. Ex. M.]
Later, Plaintiff discussed the reassignment with Darryl Hester, the Postmaster of the Salem Post Office. [Def. SF ¶ 10.] Hester told Plaintiff that a hiring freeze was in effect, meaning that the South Jersey District would not have hired a temporary employee as a part-time flexible employee, which was a career position. [Id. ¶ 16.] The South Jersey District had not hired a new career letter carrier since July 2008 and had been filling career vacancies by transferring existing career employees to those posts. [Id. ¶ 8.] Plaintiff was not aware of the hiring freeze and later admitted that had she known about it, she would not have contacted the EEO. [Id. ¶ 16; Diaz Dep. 44:22-45:12.]
Plaintiff asserts that she and Hester discussed other problems she allegedly experienced with Hester's predecessor, Fran Dougherty.*fn2 [Pl. SF ¶ 22.] Plaintiff testified that she felt harassed by Dougherty because he (1) asked if she had a boyfriend, (2) on occasion assigned other TE city carriers to the route Plaintiff usually covered, and (3) on occasion followed Plaintiff as she delivered mail. [Diaz Dep. 46:5-50:25.] Plaintiff states that she never felt sexually harassed by Dougherty after she told him she had a boyfriend. [Pl. SF ¶ 26.] Defendant, denying that Plaintiff ever spoke to Hester about Dougherty, notes, and Plaintiff admits, that postmasters are required to accompany letter carriers on each delivery route at least once per year. [Def. SF ¶ 17; Def. RSF ¶ 22.] Defendant also asserts that Plaintiff never contacted an EEO counselor about any of Dougherty's alleged conduct. [Def. RSF ¶ 22.]
Plaintiff further claims that she spoke with Hester about harassment she suffered at the hands of Artannia Moore, the acting supervisor in Salem.*fn3 [Pl. SF ¶ 23.] Plaintiff testified in her deposition that Moore tried to embarrass Plaintiff by stopping her on her route one day and driving her to see a customer who had a problem with mail delivery. [Diaz Dep. at 48:23-49:9.] However, the customer told Moore that another carrier, not Plaintiff, was responsible for the problem. [Pl. SF ¶ 24.]
The next incident involved Moore again and Hester himself. On April 6, 2009, Plaintiff worked for approximately two and a half hours before falling ill and reported to Hester that she needed to go to the hospital. [Def. SF ¶ 19; Pl. SF ¶ 31.]
Plaintiff asserts she was crying and complaining of an irregular heartbeat and faults Hester for not calling an ambulance or arranging for her transportation to the hospital.*fn4 [Pl. SF ¶ 28.] Plaintiff sought treatment and did not return to work that week. [Def. SF ¶ 19.] When Plaintiff returned to work, she was told that her time card would be altered to reflect that she had worked approximately two and a half hours on April 6. [Pl. SF ¶ 30.] Plaintiff viewed this as a slight, but admits that she only worked approximately two and a half hours on April 6, or "[m]aybe less."*fn5 [Diaz Dep. 55:22-24.] She also was disappointed that, during this and other absences from work in April and early May that Hester did not "follow up . . . to see if there was any assistance that could be offered by the post office . . . ." [Pl. SF ¶¶ 32-33; Def. SF ¶ 20; Def. RSF ¶ 32.]
Plaintiff again felt slighted when, on May 1, 2009, she was assigned to a route with which she was unfamiliar, and as a result it took her longer to complete than was considered necessary. [Pl. SF ¶ 35.] Although Plaintiff complains that it was customary to assign TE city carriers to the same route, she also admits that TE city carriers are not assigned set routes the way career employees are. [Id. ¶ 37; Pl.'s Resp. to Def. SF ¶ 4.] Plaintiff felt further harassed the next day when she was assigned part of a route normally handled by a full-time carrier, who was absent that day, in addition to part of her "regular" route.*fn6 [Pl. SF ¶¶ 38-39; Diaz Dep. at 59:12-14.]
The next week, on May 8, Plaintiff fell while delivering mail, injuring her knees and clavicle. [Def. SF ¶ 21.] She received treatment at an emergency room and did not report to work for an extended period of time. [Id. ¶¶ 21, 26.] USPS policy dictates that Postmasters or supervisors accommodate employees who have been injured on the job by creating light duty or limited duty assignments to reflect the injured employee's physical restrictions. [Pl. SF ¶¶ 44-47.] On July 30, 2009, the South Jersey District human resources department received a report from Plaintiff's physician, clearing Plaintiff to work consistent with the following restrictions: driving up to six hours a day, lifting or carrying 35 pounds for up to six hours a day, and pulling or pushing 15 pounds for up to six hours a day. [Def. SF ¶ 27.] The next day, Hester prepared an "Offer of Modified Assignment" for Plaintiff that included some driving and some sorting of mail. [Id. ¶ 28.] Plaintiff refused the offer, asserting that she was having additional difficulty with her knee and sought further medical consultation. [Pl. SF ¶ 48.] On August 7, Hester prepared a second offer of limited duty assignment, which included some driving, some casing and some collection of mail, based on restrictions dictated in new report from Plaintiff's physician, and Plaintiff accepted this assignment. [Id. ¶ 49; Def. RSF ¶ 49; Def. Ex. T.] Plaintiff worked for approximately four and a half hours on August 8, but found she could not sufficiently bend her knee or carry heavy items without pain, and did not work again for approximately two weeks. [Def. SF ¶ 31; Pl. SF ¶ 50.]
Plaintiff's physician prepared a new report on August 17 that restricted permissible activity for Plaintiff even more. [Def. SF ¶ 32.] Plaintiff was not permitted to drive, but could sit for up to eight hours a day, stand and walk for two hours a day, bend or stoop six hours a day, and lift, carry, pull or push 15 pounds for up to six hours a day. [Id.] The next day, Hester prepared a third limited duty assignment, which included filing, sweeping, mopping, emptying trash cans, dusting, inspecting vehicles and other duties. [Id. ¶ 33.] Plaintiff believed sweeping and mopping would be stressful on her knees, and her physician created a new report indicating that Plaintiff could not sweep, mop, empty trash cans, dust, bend, stoop or lift, in addition to the other restrictions. [Id. ¶ 34.]
On August 24, Plaintiff returned to the job on a more regular basis, working four hours or less several times per week. [Id. ¶ 37.] However, Plaintiff complains that her hours were concentrated in the afternoon, and she asserts that the only work she was permitted to do was "sit at a desk looking at the wall . . . ." [Pl. SF ¶¶ 54-57.] Defendant denies this characterization, and points to the offer of limited duty assignment on August 24, which lists several jobs for Plaintiff to do; however, that report is marked up by Plaintiff's physician, indicating that Plaintiff was not physically capable of doing all of the work suggested on the offer of limited duty assignment. [Def. RSF ¶ 56; Def. Ex. Y.]
In the meantime, the Salem Post Office was undergoing changes. In June 2009, Hester was informed that the South Jersey District was reassigning an existing career employee to fill a vacant full-time regular city carrier position and that TE city carrier Justin Ramsden would be reassigned to the Haddonfield (N.J.) Post Office. [Def. SF ¶ 23.] Hester also was informed around that time that the USPS, which conducted twice-yearly evaluations of carrier routes, would be adjusting Salem's five carrier routes down to four, due to a decline in mail volume. [Id. ¶ 24.] Consequently, staffing would be reduced and Salem would lose all remaining TE city carrier employees. [Id. ¶ 25.] Hester negotiated for Salem to retain its TE city carriers through Labor Day. [Id.] After Labor Day, TE city carrier Eric Price would be reassigned to the Woodstown (N.J.) Post Office.*fn7 [Id. ¶ 38.] Hester stated in his declaration that he discussed Plaintiff's status with the Post Office Operations Manager, including how her condition prevented her from performing essential duties of a TE city carrier. [Def. SF ¶ 39.] On September 15, 2009, Hester gave Plaintiff a notice of termination. [Def. SF ¶ 40.] The letter stated: "The reason for termination is due to the most recent route minor adjustments that was performed. As a result to the new scheduled work load, The staffing must be reduced in order to provide necessary work for the career employees." [Def. SF ¶ 40; Def. Ex. Z.]
Plaintiff asserts that she was still able to case, or sort, mail [Pl. SF ¶ 58], but Defendant responds that Hester understood the restrictions from her physician to mean that Plaintiff should not be assigned to casing mail. [Def. RSF ¶ 58.] Plaintiff suggests that Eduok Uwah, a Salem supervisor, would have been able to use Plaintiff to case mail, except Hester told him Plaintiff could not perform that task. [Pl. SF ¶ 58.] Defendant accurately responds that Uwah's deposition does not support that statement; rather, Uwah stated that Hester told him Plaintiff could not case mail, and Uwah added that career carriers would object when others cased mail for them, ...