United States District Court, N.D. Indiana, Hammond Division
DAVID R. DYSON, Plaintiff,
MEGAN J. BRENNAN, Postmaster General, Defendant.
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE UNITED STATES DISTRICT COURT.
matter is before the Court on (1) Defendant's Motion for
Summary Judgment [DE 98], filed by Defendant Megan J.
Brennan, Postmaster General, on September 15, 2016; (2)
Defendant's Motion to Strike [DE 114], filed on January
10, 2017; and (3) Plaintiff's Motion Requesting Leave to
File Sur Reply to Defendant's Reply [DE 119], filed by
pro se Plaintiff David R. Dyson on January 23, 2017. All
motions were fully briefed as of February 16, 2017.
Verified Third Amended Complaint, filed April 4, 2016,
Plaintiff David R. Dyson brings claims under Title VII for
race discrimination (Count I), sex discrimination (Count II),
harassment and hostile work environment (Count III), and
retaliation (Count IV). The “Statement of Facts”
section of the Third Amended Complaint begins with the
subtitle “Declaration of David R. Dyson Pursuant to 28
U.S.C. Section 1746, ” which in turn begins with the
statement, “I, David R. Dyson, declare if called upon
could competently testify to the following facts from my own
personal knowledge.” (ECF 68, p. 4, ¶ 6). The
section concludes with the statement, “I,
Self-Represented Plaintiff, David R. Dyson, declare under
penalty of perjury under the Laws of the United States of
America that the statements presented in this affidavit are
true and correct.” (ECF 68, p. 4, ¶ 60). This
statement is followed by Plaintiff's signature and the
date of April 4, 2016.
parties filed forms of consent to have this case assigned to
a United States Magistrate Judge to conduct all further
proceedings and to order the entry of a final judgment in
this case. Therefore, this Court has jurisdiction to decide
this case pursuant to 28 U.S.C. § 636(c).
Federal Rules of Civil Procedure require that a motion for
summary judgment be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). Rule 56 “mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). “Summary
judgment is appropriate when no material fact is disputed and
the moving parties are entitled to judgment as a matter of
law, meaning that no reasonable [juror] could find for the
other party based on the evidence in the record.”
Carman v. Tinkes, 762 F.3d 565, 566 (7th Cir. 2014).
seeking summary judgment bears the initial responsibility of
informing the court of the basis for its motion and
identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, that it believes demonstrate the
absence of a genuine issue of material fact. See
Celotex, 477 U.S. at 323; Fed.R.Civ.P. 56 (a), (c). The
moving party may discharge its initial responsibility by
simply “‘showing'-that is, pointing out to
the district court-that there is an absence of evidence to
support the nonmoving party's case.”
Celotex, 477 U.S. at 325; see also Spierer v.
Rossman, 798 F.3d 502, 508 (7th Cir. 2015). When the
nonmoving party would have the burden of proof at trial, the
moving party is not required to support its motion with
affidavits or other similar materials negating the
opponent's claim. Celotex, 477 U.S. at 323, 325;
Spierer, 798 F.3d at 507-08; Modrowski v.
Pigatto, 712 F.3d 1166, 1168-69 (7th Cir. 2013).
the moving party puts forth evidence showing the absence of a
genuine dispute of material fact, the burden shifts to the
non-moving party to provide evidence of specific facts
creating a genuine dispute.” Carroll v. Lynch,
698 F.3d 561, 564 (7th Cir. 2012). The non-moving party
cannot resist the motion and withstand summary judgment by
merely resting on its pleadings. See Fed. R. Civ. P.
56(c)(1), (e); Flint v. City of Belvidere, 791 F.3d
764, 769 (7th Cir. 2015) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). The nonmoving
party must “do more than simply show that there is some
metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e)
(1986)). Rule 56(e) provides that “[i]f a party fails
to properly support an assertion of fact or fails to properly
address another party's assertion of fact as required by
Rule 56(c), the court may . . .consider the fact undisputed
for purposes of the motion [or] grant summary judgment if the
motion and supporting materials-including the facts
considered undisputed-show that the movant is entitled to it
. . . .” Fed.R.Civ.P. 56(e); see also
Anderson, 477 U.S. at 248-50.
viewing the facts presented on a motion for summary judgment,
a court must construe all facts in a light most favorable to
the non-moving party and draw all legitimate inferences in
favor of that party. See Anderson, 477 U.S. at 255;
McDowell v. Vill. of Lansing, 763 F.3d 762, 764, 765
(7th Cir. 2014); Srail v. Vill. of Lisle, 588 F.3d
940, 948 (7th Cir. 2009). A court's role is not to
evaluate the weight of the evidence, to judge the credibility
of witnesses, or to determine the truth of the matter, but
instead to determine whether there is a genuine issue of
triable fact. See Anderson, 477 U.S. at 249-50.
FOR LEAVE TO FILE SURREPLY
Motion Requesting Leave to File Sur-Reply to Defendant's
Reply, Plaintiff asks the Court for leave to file a surreply,
arguing generally that, in its Reply Brief in support of its
Motion for Summary Judgment, Defendant has made improper
legal contentions and relies on information that did not
appear in Defendant's Statement of Undisputed Facts and
Legal Argument in its opening brief. First, Plaintiff does
not specifically identify in his motion what the improper
legal contentions or new facts are; the Court will not search
the proposed 17-page Surreply Brief to attempt to discern
this information. Moreover, the Court is able to identify
improper legal contentions and new facts on its own review of
the parties' briefs. Finding, in its discretion, that
additional briefing is unnecessary, the Court denies
Plaintiff's Motion Requesting Leave to File Sur-Reply to
Response in Opposition, Plaintiff argues that some of the
exhibits submitted by Defendant in support of her Motion for
Summary Judgment fail to comply with the requirements of
Federal Rules of Evidence 901 or 902. (ECF 113, p. 3); (ECF
112, p. 3, ¶ 13; p. 4, ¶ 15; p. 6, ¶¶ 26,
27; p. 7, ¶ 33; p. 8, ¶¶ 35, 36, 37, 39; p.
9). Thus, Plaintiff argues that the documents are
inadmissible and cannot be used to support Defendants'
Motion for Summary Judgment. In her Reply Brief, Defendant
correctly notes that, in making this argument in his Response
in Opposition, Plaintiff has failed to comply with Northern
District of Indiana Local Rule 56-1(e), which requires that
“[a]ny dispute regarding the admissibility of evidence
should be addressed in a separate motion in accordance with
L.R. 7-1.” N.D. Ind. L.R. 56-1(e). In the interests of
justice and in its discretion, the Court nevertheless
considers Plaintiff's objections.
October 6, 2016 Opinion and Order on an earlier Motion to
Strike filed by Plaintiff, the Court addressed
Plaintiff's argument that the exhibits submitted in
support of Defendant's Statement of Undisputed Material
Facts in support of its Motion for Summary Judgment “do
not conform to the authentication rules of the federal rules
of evidence.” (ECF 102, p. 2 (citing (ECF 101, p. 3))).
The Court noted that Federal Rule of Civil Procedure 56(c)(2)
provides that “[a] party may object that the material
cited to support or dispute a fact cannot be presented in a
form that would be admissible in evidence.”
Fed.R.Civ.P. 56(c)(2); see also Olson v. Morgan, 750
F.3d 708, 714 (7th Cir. 2014) (recognizing that the Rules
“allow parties to oppose summary judgment with
materials that would be inadmissible at trial so long as
facts therein could later be presented in an admissible
form.”). At the time, the Court denied the motion
because Plaintiff had not identified any specific examples of
Defendant's exhibits that could not be presented in a
form that would be admissible in evidence. See (ECF
102, p. 3). Plaintiff has now identified the exhibits.
the ruling is the same. First, Plaintiff again has not shown
that Defendant will not be able to present these materials in
a form that would be admissible at trial. Second, Ronald
Avina authenticates Exhibits 5, 6, and 7 in his Declaration,
see (ECF 100, Ex. 4, ¶ 2), Bernyce Thompson
authenticates Exhibits 12, 13, 14, 15, 16, 22, 26, and 28 in
her Declaration, see (ECF 100, Ex. 24, ¶ 2),
and R. Elaine Smith authenticates Exhibits 3, 7, 8, 10, 11,
17, 19, 21, 23, 25, 27, 29, in her Declaration, see
(ECF 100, Ex. 30, ¶ 2). Exhibit 9 is page 4 of 5 of
Plaintiff's signed May 30, 2013 EEO Investigative
Affidavit. The Court overrules Plaintiff's objections.
also objects that paragraphs 32 and 39 of Defendant's
facts are not supported by a citation. However, the
paragraphs are identical to paragraphs 28 and 22 of Bernyce
Thompson's declaration, respectively, and the Court will
consider both paragraphs. See Fed. R. Civ. P.
56(c)(3) (“The court need consider only the cited
materials, but it may consider other materials in the
Motion to Strike, Defendant asks the Court to strike
Plaintiff's exhibits on pages 28, 29, 58-59, 62-79, and
154 of Plaintiff's Response in Opposition to
Defendant's Motion for Summary Judgment as
unauthenticated documents containing inadmissible hearsay.
For the same reasons set out above regarding Plaintiff's
objections, Defendant has not shown that Plaintiff would be
unable to present these exhibits in admissible form at trial.
See Fed. R. Civ. P. 56(c)(2); Olson, 750
F.3d at 714. Therefore, the Court overrules Defendant's
objections based on authentication and hearsay and denies the
Motion to Strike. However, the Court notes that the exhibits
on pages 58 and 59 are illegible and, thus, cannot be
Plaintiff's Job, Duties, and Supervisors
David Dyson is a black male, born in 1956. (ECF 100, Ex. 1,
p. 7, 8); (ECF 112, Ex. A, ¶ 3). Plaintiff is a high
school graduate, and he studied industrial electricity at
Shelton State Technical College from 1977-1979. Id.
at p. 9.
1991, Plaintiff was hired by the United States Postal Service
as a Mail Processing Equipment Mechanic (“MPE
mechanic”). Id. at pp. 16-17; (ECF 68, ¶
7). In 1995, Plaintiff went to the Gary, Indiana, Processing
and Distribution Center (“Gary P&DC”). (ECF
100, Ex. 1, pp. 17-18, 21); (ECF 68, ¶ 7). He was an MPE
mechanic at the Gary P&DC at all relevant times,
including in 2012. (ECF 112, Ex. A, ¶ 4).
terms and conditions of Plaintiff's employment with the
United States Postal Service are set forth in the Collective
Bargaining Agreement between the American Postal Workers
Union, AFL-CIO (APWU) and the United States Postal Service.
(ECF 68, ¶ 8); (ECF 112, Ex. A, ¶ 4).
are three “tours” or shifts that the mechanics
work. Tour I is 10:00 p.m. to 6:30 a.m.; Tour 2 is from 6:00
a.m. to 2:30 p.m.; and Tour 3 is from 2:00 p.m. to 10:30 p.m.
(ECF 100, Ex. 4, ¶ 3). Plaintiff has always worked Tour
1 at the Gary P&DC and is the only MPE mechanic on Tour
1. (ECF 100, Ex. 1, p. 23-24, 65); (ECF 100, Ex. 24, ¶
3). Plaintiff's primary duty is to fix the mail
processing equipment machines. Id. at p. 18.
Plaintiff is responsible for maintenance, cleaning, and
fixing mail sorting machines like the APBS and the FMS 100.
Id. at pp. 19-20. Plaintiff testified that the MPE
mechanics do “[w]hatever it takes to maintain and fix
the equipment.” Id. at p. 20. The maintenance
department is responsible for maintaining, repairing, and
keeping machines functioning so that the operations
department can process the mail. (ECF 100, Ex. 24, ¶ 2).
Thompson, a black female, was the Acting Supervisor of
Maintenance Operations assigned to Tour I at the Gary
P&DC beginning in 2009, and, in approximately 2014, she
became the Supervisor of Maintenance Operations assigned to
Tour I at the Gary P&DC. (ECF 100, Ex. 24, ¶ 1).
Thompson was Plaintiff's supervisor at all relevant
times. (ECF 100, Ex. 18, ¶ 3).
2010 through October 2014, Karla Forte was the Supervisor of
Maintenance Operations on Tour 2. (ECF 100, Ex. 18, ¶
2). Forte is a black female. Id. at ¶ 1. Forte
usually arrived at the Gary P&DC for Tour 2 at
approximately 5:00 a.m. or 5:30 a.m. Id. at ¶
4. Forte stated that her interactions with Plaintiff were
limited and infrequent; Forte did not supervise Plaintiff on
his regularly scheduled work days. Id. at
¶¶ 3, 5.
relevant times, Ronald Avina was the Supervisor of
Maintenance Operations on Tour 3 at the Gary P&DC. (ECF
100, Ex. 4, ¶¶ 1, 3). Avina, a male, states that
his race is “Mexican.” Id. at ¶ 1.
Avina supervises the Custodians, MPE mechanics, and
Electronic Technicians (“ET”). Id. at
¶ 3. Avina was responsible for making the regular and
overtime schedule for MPE mechanics and ETs for all three
Tours. Id. at ¶ 4; see also (ECF 100,
Ex. 19, p. 2).
relevant times, Lawanda Fox was the Acting/Manager of
Maintenance Operations. (ECF 100, Ex. 19, p.2) (Fox EEO
Investigative Affidavit). Fox is a black female. Id.
at p. 1. Dyson understood Fox to be a supervisor. (ECF 100,
Ex. 1, p. 22).
September 2012 Cancelled Overtime
2012, Plaintiff's non-scheduled days were Sunday and
Monday, which Plaintiff describes as Saturday and Sunday
because his shift on Tour I runs from 10:00 p.m. to 6:30 a.m.
See (ECF 100, Ex. 1, p. 24); (ECF 100, Ex. 7); (ECF
100, Ex. 25); (ECF 100, Ex. 30, p. 2). Tour 1 begins at 10:00
p.m. on one day and ends the following day; the service date
for Tour 1 is the date in which the Tour 1 employee performs
the majority of the work day, which is the following day.
(ECF 100, Ex. 30, p. 2).
Wednesday, September 19, 2012, the weekly work schedule
listed Plaintiff as working overtime on Sunday, September 23,
2012. (ECF 100, Ex. 29) (covering Tour 3); (ECF 68, ¶
10); (ECF 112, Ex. A., ¶ 6)
Thursday, September 20, 2012, at approximately 9:15 p.m.,
Plaintiff notified his employer that he had to take leave
from his scheduled shifts on Friday and Saturday due to a
family emergency (i.e. for the next two shifts that would
start in approximately 45 minutes). (ECF 100, Ex. I, p. 30);
(ECF 100, Ex. 8); (ECF 68, ¶ 11); (ECF 112, Ex. A.,
“unscheduled absence” is one “not requested
and approved in advance.” (ECF 100, Ex. 11, p. 2,
next day, Friday, September 21, 2012, Plaintiff received a
phone call in the afternoon from Supervisor Avina who told
Plaintiff that his overtime was cancelled for Sunday,
September 23, 2012. (ECF 100, Ex. 1, p. 30); (ECF 68, ¶
12); (ECF 112, Ex. A, ¶ 9). Avina did not give Plaintiff
a reason, either verbally or in writing, for cancelling
Plaintiff's overtime. (ECF 112, Ex. A, ¶ 10).
Plaintiff verified the cancellation with Fox on September 22,
2012. (ECF 100, Ex. 1, p. 31); (ECF 68, ¶¶ 13, 14);
(ECF 112, Ex. A, ¶¶ 11, 12). Plaintiff states that
Fox did not give Plaintiff a reason for cancelling the
overtime. (ECF 68, ¶ 14); (ECF 112, Ex. A, ¶ 12).
Fox did not communicate to Plaintiff that she relied on
Article 8.5.C.1.b in making the decision. (ECF 112, Ex. A,
“Agreement” between United States Postal Service
and APWU for 2010-2015 (Handbook EL-912) provides, in
relevant part under the heading “Section 5. Overtime
C. 1. a. When during the quarter the need for overtime
arises, employees with the necessary skills having listed
their names will be selected in order of their seniority on a
b. Those absent or on leave shall be passed over.
(ECF 100, Ex. 21).
March 27, 2013 email regarding Plaintiff's EEO complaint
related to the cancelled September 23, 2013 overtime, Manager
Fox explained that, because Plaintiff was on leave, the
decision was made not to give him overtime under APWU
contract article 8.5.C1.b. (ECF 100, Ex. 23). In her May 24,
2013 U.S. Postal Service EEO Investigative Affidavit
(Witness), Fox again explained that Plaintiff's September
23, 2012 overtime was cancelled because of section 5.C of the
Agreement and that she instructed Avina to notify Plaintiff
that he was not needed for the overtime on September 23,
2012. (ECF 100, Ex. 19, p. 2); see also (ECF 100,
states in the EEO Investigative Affidavit that race and sex
were not a factor in her decision to cancel Plaintiff's
September 23, 2012 overtime. (ECF 100, Ex. 19, p. 3).
Plaintiff's place, Johnnie Harris was scheduled to work
the overtime on Tour 3 on September 23, 2012. (ECF 100, Ex.
9). Harris is an African-American male. (ECF 100, Ex. 30,
¶ 14). He had prior EEO activity in 2010. (ECF 100, Exs.
27, 30 ¶ 14).
Garton is a white female. (ECF 100, Ex. 1, p. 33); (ECF 112,
Ex. A, ¶ 14). In 2012, Garton was an MPE mechanic
working at Gary P&DC. (ECF 112, Ex. A, ¶ 14). Garton
was scheduled to work overtime on Sunday, October 28, 2012.
(ECF 100, Ex. 3). On October 9, 2012, Garton submitted a
request for leave of absence for Thursday and Friday, October
25 and October 26, 2012, which was denied. (ECF 68, ¶
15); (ECF 112, Ex. A, ¶ 15). On October 24, 2016, Garton
reported that she was unable to work on October 25 and
October 26, 2012. (ECF 68, ¶16); (ECF 112, Ex. A, ¶
16). Garton did not work on Thursday and Friday October 25
and October 26, 2012. (ECF 100, Ex. 10). Garton's 3972
Absence Analysis form for Leave Year 2012 is marked
“uSL-8” for both dates. (ECF 100, Ex. 10). Garton
worked her regular shift on Saturday, October 27, 2012.
Garton then worked the scheduled overtime on Sunday, October
28, 2012. Id. Garton works on Tour 2, and Forte is
her supervisor. Id. at p. 32-33.
Affidavit, R. Elaine Smith, Labor Relations Specialist for
the United States Postal Service, explains that “the
difference between Garton and [Plaintiff] is that Garton
reported to work on Saturday, October 27, 2012, the day
preceding the scheduled overtime, whereas [Plaintiff] did not
work the day before his scheduled overtime.” (ECF 100,
Ex. 30, ¶ 17) (citing Garton's leave requests,
Garton's 3972 Form, and Plaintiff's 3972 form).
deposition, Plaintiff testified that he did not know if
Garton was off work the day before she worked overtime. (ECF
100, Ex. 1, pp. 91-92). When asked whether it would be a
different situation if Garton had worked the day before she
was supposed to work the overtime, Plaintiff responded,
“If she worked the day before? That would, I believe,
be different.” Id. at p. 92.
Thompson, Plaintiff's supervisor, did not prepare the
regular, overtime, or holiday schedules for the MPE mechanics
and ETs in 2012-2014. Avina was responsible for making the
regular and overtime schedule for MPE mechanics and ETs for
all three Tours. Id. at ¶ 4; see also
(ECF 100, Ex. 19, p. 2). Plaintiff's understanding is
that a supervisor or a manager can cancel overtime. (ECF 100,
Ex. 1, p. 31).
January 6, 2013, Gary Area Local 266's Step 2 designee,
Robert L. Hock III, issued a Correction and Additions
GAL1245RH in relation to Plaintiff's cancelled September
23, 2013 overtime, which states: “Possible[sic] had
management not shown feminist favoritism to a female employee
by calling her and telling her that she could not work her
off days as posted this might not be an issue.” (ECF
112, p. 154- “Exhibit 4” to Pl. 12/19/2016
Decl.). The letter also opines that management treated
Plaintiff inequitably in relation to Garton. Id.
This letter is date stamped as having been received by Gary
P&DC on January 7, 2013. Id.
filed a grievance regarding the cancellation of the September
23, 2012 overtime. (ECF 100, Ex. 30, ¶ 15); (ECF 100,
Ex. 19, p. 3). On March 12, 2013, Plaintiff was called into
Thompson's office, and, in the presence of Avina,
Thompson informed Plaintiff that she received a memo
indicating that Plaintiff should select a day to make up the
eight hours of overtime. (ECF 68, ¶ 27); (ECF 112, Ex.
A, ¶ 28). Plaintiff asked if the question was related to
his pending EEOC complaint, which he had filed in February
2013. Id. Thompson responded, “I do not
know.” Id. The grievance was settled on May
16, 2013, with the resolution that Plaintiff be given the
opportunity to work eight hours overtime. (ECF 100, Ex. 30,
¶ 15); (ECF 100, Ex. 19, p. 3). Plaintiff made up the
eight hours of overtime. (ECF 100, Ex. 1, p. 130).
Holiday Schedule 2012
relevant times, Supervisor Avina was responsible for making
the regular and overtime schedule for MPE mechanics and ETs
for all three tours. (ECF100, Ex. 4, ¶ 4). Neither
Thompson nor Forte was responsible for making the regular or
overtime schedules for MPE mechanics or ETs in 2012. (ECF
100, Ex. 24, ¶ 4); (ECF 100, Ex. 18, ¶ 12). For
holiday scheduling, Avina scheduled employees to work the
2012 Christmas holiday based on the mail processing equipment
that would be running on each tour and the seniority of the
employees. (ECF 100, Ex. 4, ¶ 9). The Manager of
Distribution Operations decided what mail processing
equipment, if any, would be running on each tour and provided
Avina with a Holiday Operating Plan that included information
that the first class mail processing equipment was scheduled
not to be in operation during the 2012 Christmas holiday on
Tour I (10:00 p.m. on December 24, 2012, to 6:30 a.m. on
December 25, 2012). Id. at ¶ 10; (ECF 100, Ex.
5). Plaintiff avers that, prior to December 15, 2012, Gary
P&DC's Supervisor of Distribution Operations Monica
Glines informed Plaintiff that she required a mechanic for
the night of December 24, 2012. (ECF 68, ¶ 18); (ECF
112, Ex. A, ¶ 19).
sign the Holiday list if they desire to work over the
Christmas holiday. (ECF 100, Ex. 4, ¶ 17). Plaintiff
signed the list to work overtime, and he was aware that he
may be assigned to work any Tour. (ECF 100, Ex. 1, pp. 37,
42); (ECF 68, ¶ 19); (ECF 112, Ex. A, ¶ 20).
scheduled Plaintiff to work on December 25, 2012, from 6:00
a.m. to 2:30 p.m. (ECF 100, Ex. 15); (ECF 68, ¶ 25);
(ECF 112, Ex. A, ¶ 26). Plaintiff also had to work his
regular shift later that day, beginning at 10:00 p.m. on
December 25, 2012, and finishing at 6:30 a.m. on December 26,
2012; this was not considered the December 25, 2012 holiday
because it was Plaintiff's regular shift for December 26,
2012. (ECF 100, Ex. 4, ¶¶ 13, 14); (ECF 68, ¶
did not schedule any MPE mechanic to work the Christmas 2012
holiday for Tour I (from 10:00 p.m. on December 24, 2012, to
6:30 a.m. on December 25, 2012) because the first class mail
processing equipment was not going to be utilized during that
time. (ECF 100, Ex. 4, ...