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Dyson v. Brennan

United States District Court, N.D. Indiana, Hammond Division

July 14, 2017

DAVID R. DYSON, Plaintiff,
MEGAN J. BRENNAN, Postmaster General, Defendant.



         This 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.

         In his 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.[1]

         The 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).


         The 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).

         A party 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).

         “Once 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.

         In 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.


         In his 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 Defendant's Reply.


         In his 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.

         In its 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.

         Nevertheless, 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.

         Plaintiff 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 record.”).


         In its 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 considered.


         1. Plaintiff's Job, Duties, and Supervisors

         Plaintiff 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.

         In 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).

         The 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).

         There 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).

         Bernyce 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).

         From 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.

         At all 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).

         At all 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).

         2. September 2012 Cancelled Overtime

         In 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).

         On 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)

         On 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., ¶ 8).

         An “unscheduled absence” is one “not requested and approved in advance.” (ECF 100, Ex. 11, p. 2, § 511.41).

         The 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, ¶ 13).

         The “Agreement” between United States Postal Service and APWU for 2010-2015 (Handbook EL-912) provides, in relevant part under the heading “Section 5. Overtime Assignments”:

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 rotating basis.
b. Those absent or on leave shall be passed over.

(ECF 100, Ex. 21).

         In a 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, Ex. 23).

         Fox 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).

         In 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).

         Paula 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.

         In her 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).

         At his 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.

         Bernyce 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).

         On 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.

         Plaintiff 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).

         3. Holiday Schedule 2012

         At all 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).

         Employees 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).

         Avina 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, ¶ 25).

         Avina 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, ...

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